aimee davenport, evans & dixon, nutrient tmdls; what's the deal?, missouri water seminar,...
TRANSCRIPT
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Nutrient TMDLs; What’s the Deal?
Aimee Davenport
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Point Sources v. Non-Point Sources
v.
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Topics
• TMDL Basics
• Key Legal Issues in TMDLs
• Chesapeake Bay TMDL Litigation
• Implications for Impaired Waters in Missouri
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TMDL Basics
• Section 303(d) of the Clean Water Act contains:
– Requirement to identify impaired waters.
– Requirement to develop Total Maximum Daily Loads (“TMDL”) when technology based effluent limits are insufficient.
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TMDL Basics
• States must develop impaired waters lists and TMDLs for impaired waters (303(d) Lists)
• States submit the lists and then the TMDLs to EPA for approval
• EPA is supposed to develop lists and TMDLs when states fail to act
• Significant litigation in the 1990s
– American Canoe Association v. EPA
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TMDL Basics
• Section 303(d) requires that TMDLs be developed at a level necessary to implement the applicable water quality standards…
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TMDL Basics
• TMDL has three components: – Waste Load Allocation (“WLA”) – the portion of the daily
load allocated to point sources
– Load Allocation (“LA”) – the portion of the daily load allocated to non-point sources
– Margin of safety
• Friends of the Earth v. EPA (D.C. Circuit 2006) - TMDLs must be set on a daily basis.
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TMDL Basics
• Cases from several circuits have held that EPA’s ability to force states to implement TMDLs is through:
– Objecting to NPDES permits.
– Withholding grant money from states.
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TMDL Legal Issues
• Point Sources versus Non-point Sources
• Among the primary sources for nutrient pollutant
loads are non-point sources
• EPA’s regulatory authority extends only to point
sources
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Key Question
• How do you create a TMDL to meet water quality
standards if you can’t regulate some of the primary
sources of pollutant loads?
– Chesapeake Bay TMDL – Six Bay states and District of Columbia to implement/enforce Watershed Implementation Plans, associated benchmarks, timeframes, and EPA backstops if WIPS are insufficient
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American Farm Bureau Federation v. EPA (July 6, 2015)
• Farm Bureau challenged TMDL after its adoption in 2010
• Main issues included:
– EPA exceeded authority by:
• Setting multiple WLAs
• Inserting timeframes
• Requiring that states provide reasonable assurance that load reductions from non-point sources will occur
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American Farm Bureau Federation v. EPA (July 6, 2015)
• Crux of Farm Bureau’s argument:
– “Total” Maximum Daily Load must consist of a single number specifying the amount of a pollutant that a water can accommodate without adverse impact.
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American Farm Bureau Federation v. EPA (July 6, 2015)
• Unanimous decision – Court Disagreed
• Its decision hinged on agency deference under Chevron v. NRDC (1884)
– Did Congress directly address issue in statute?
– If not, then was agency’s interpretation permissible?
– If yes, then deference to agency
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American Farm Bureau Federation v. EPA (July 6, 2015)
• Court determined:
– Statute does not contain express language defining what “total” means in TMDL;
– That nothing in CWA prohibits EPA from developing detailed TMDLs; and
– That EPA’s interpretation of what can be included in TMDL was not arbitrary and capricious (i.e. reasonable policy decision)
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American Farm Bureau Federation v. EPA (July 6, 2015)
• “Cooperative federalism” emphasized – the partnership between EPA and states, and that Congress’ declared national goals in the CWA suggest that the TMDL definition “is broad enough to include allocations, target dates, and ‘reasonable assurance’ provisions.”
– State-specific clean-up plans/EPA approval
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Implications
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It’s Bigger…Badder…
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Implications
• MDNR Nutrient Reduction Plan (What of the existing nutrient TMDLs already in effect?)
• Higher scrutiny to achieve non-point source reductions in all TMDL
• More details regarding implementation
• Water Quality Trading
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For the Regulated
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For the Regulated
• The ruling does not address:
– A scenario where non-point sources are not adequately considered as contributors to nutrients, or
– Where a state has not provided reasonable assurance that necessary load reductions will occur
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Reminders
• Stay involved in TMDL process – beginning of the permitting process
• Ask for all relevant information
• Provide DETAILED comments
• Consider elevating issues where warranted
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Questions?
Aimee Davenport
Evans & Dixon L.L.C.
501 Cherry Street
Columbia, Missouri 65201
(573) 607-1010