Thursday, September 26, 2013
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Key Court Decisions Could Impact Water Regulations in Mississippi River Basin

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This week in the lawsuit American Farm Bureau Federation, et al., v. United States Environmental Protection Agency, et al., U.S. District Court Judge Sylvia Rambo upheld the Environmental Protection Agency’s (EPA’s) Chesapeake Bay cleanup plan, rejecting agriculture’s concerns over errors in the modeling and EPA overstepping the boundaries of the Clean Water Act (CWA).  Judge Rambo called EPA’s actions “cooperative federalism” and said it was envisioned by “an all-encompassing” and “comprehensive” CWA.

Historically, setting Total Maximum Daily Loads (TMDLs) has been the province of the states.  EPA has limited authority to establish TMDLs in a state; however, no court has ever held that EPA has the authority to also allocate the total load to sources throughout an entire watershed.

Now the court has stated that for water bodies that overlap state boundaries, there is nothing in the CWA that prohibits EPA from setting the total and issuing pollutant allocations not only to the tidal states but to all upstream states as well.  Judge Rambo found that EPA has the authority to do so since, among other things, the CWA does not expressly forbid it from doing so.  Judge Rambo also found precedent in a water permitting case between Arkansas and Oklahoma and stated that it supported “the proposition that EPA has authority to regulate upstream pollution sources in order to achieve downstream water quality standards.”

She also opened the door for allowing EPA, or even a state such as Louisiana, to establish a TMDL and assign allocations to sources of pollution for the 31 upstream states in the Mississippi River Basin.  This case is likely to be appealed.

In a separate ruling last week, U.S. District Judge Jay Zainey in New Orleans gave the EPA six months to decide whether to set CWA standards for nitrogen and phosphorous in all U.S. waterways or explain why they are not needed.  This ruling could move environmental groups closer to their goal of creating federal standards to regulate farmland runoff.

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