Third Circuit Upholds Chesapeake Bay TMDL

On July 6, 2015, the United States Court of Appeals for the Third Circuit (“Third Circuit” or “Court”), in a sixty-page Opinion, upheld a lower court decision rejecting a challenge made by non-point source groups, including agricultural interests, to the Chesapeake Bay TMDL (“TMDL”), which was developed by the United States Environmental Protection Agency (“EPA”) to address water quality issues in the Chesapeake Bay. In the development of the TMDL, EPA used a watershed approach, which required pollutant reductions from both point and non-point sources. A number of municipal groups, including the Pennsylvania Municipal Authorities Association (“PMAA”), intervened in the litigation in support of the TMDL and the TMDL’s inclusion of allocations for non-point sources. At oral argument, it was noted that pollutant allocations in the TMDL for non-point sources was appropriate and necessary to address the water quality issues in the Chesapeake Bay. Specifically, it was argued that the restoration of the Chesapeake Bay depended upon the participation of non-point sources, since regulating point sources alone is not sufficient to address the Bay’s water quality issues.

In this litigation, those challenging the TMDL argued that separate pollutant allocations for point and non-point sources was not permitted under the Clean Water Act. The Court rejected this argument and found that the term Total Maximum Daily Load, albeit ambiguous, included both point and non-point source allocations. Consistent with the argument made by PMAA and other municipal groups, the Court found that the challengers’ reading of the Clean Water Act “would shift the burden of meeting water quality standards to point source polluters, but regulating them alone would not result in a clean Bay.” Thus, the Court recognized that the Clean Water Act permits the use of a watershed-based approach, which requires that all dischargers contributing to the water quality impairment of a body of water reduce their loadings to address such impairment.

The Third Circuit’s Opinion represents an important decision in the development of TMDLs, because it reaffirms that both point and non-point sources must be involved in addressing water quality impairments within the context of a TMDL.

As such, the decision could have a significant impact on wastewater treatment plants in Pennsylvania and elsewhere. In fact, the Court noted in its conclusion: “To judge from the arguments and the amici briefs filed in this case, the winners are environmental groups, the states that border the Bay, tourists, fishermen, municipal waste water treatment works, and urban centers.” Why are wastewater treatment plants considered winners? Perhaps it is because this decision puts to rest any issue of non-point source involvement in the restoration of the Chesapeake Bay, which should preclude any more stringent discharge limits or additional loading reductions being placed on wastewater treatment plants that discharge to the Bay or waters tributary to the Bay.

Steven Hann, East Region Solicitor for PMAA, argued this case on behalf of PMAA before both the Third Circuit and the United States District Court for the Middle District of Pennsylvania.