September 24, 2015

Another Clean Water Act power grab for the Court to consider

By Another Clean Water Act power grab for the Court to consider

Last Friday, the Supreme Court extended the deadline for the American Farm Bureau Federation to file a petition for certiorari in its case challenging the EPA’s interpretation of the Total Maximum Daily Load or “TMDL” provision of the Clean Water Act. While the details of the case–much like the Clean Water Act itself–get very technical, the case mainly involves the question of how much authority the EPA can grant itself by claiming that a relatively clear statutory term is ambiguous. Here, the EPA is trying to use the “TMDL” language to acquire powers Congress likely never intended it to have.

The TMDL is a statutory provision used in implementing water quality controls, and it describes the total maximum daily amount of a pollutant that a water body can handle without threatening its health. The TMDL is used by the states–which implement the Clean Water Act–when they create pollution restriction plans that clean up water bodies while still considering the needs of communities that will bear the costs of cleanup. While establishing TMDLs is primarily a state responsibility under the Clean Water Act, the EPA can step in and establish one in certain cases.

That’s what they’ve done here, except to an unprecedented level. Citing the drastic water quality of the Chesapeake Bay, the EPA issued a new “comprehensive” TMDL that goes well beyond establishing a total maximum amount of pollutant a water body can take. The Chesapeake TMDL takes that maximum amount and carves it up into individual pollution allocations for hundreds of specific pollution sources. So much for state implementation. It even regulates indirect pollution sources the Clean Water Act’s drafters purposefully refrained from giving EPA direct control over because doing so would grant the agency federal power over local land use decisions. Further, the Chesapeake TMDL requires states within the Chesapeake Bay watershed to make assurances that they will comply with the pollutant allocations by agency-established deadlines–none of which the EPA is authorized to do under the Clean Water Act. The result is an EPA with an even longer reach and even more control over state and local affairs.

The EPA claims it can do as it pleases because the statutory words “Total Maximum Daily Load” don’t specifically foreclose its new powers, and because its powers will help it clean the very dirty Chesapeake. While it’s not the first time the EPA has claimed broad powers based on an invented statutory ambiguity, few responses to such assertions are as deferential as the Third Circuit’s opinion upholding the Chesapeake TMDL. While the case revolves around this lone technical term, its impact will be felt by local communities across the Chesapeake Bay watershed. Where they may have had a voice in state and local water quality implementation before, now they’ll be left with federal mandates instead of state-based solutions, and nobody to hold accountable for them. Communities in other major U.S. watersheds like the Mississippi had better hope the Supreme Court grants the Farm Bureau’s expected cert petition before the EPA decides they need micro-managing too.

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