Third Circuit Upholds Chesapeake Bay TMDL, Defers To EPA Authority

On July 6, 2015, a unanimous three-judge panel of the U.S. Court of Appeals for the Third Circuit upheld the Chesapeake Bay Total Maximum Daily Load ("Bay TMDL") for nitrogen, phosphorus, and sediment issued by the U.S. Environmental Protection Agency ("EPA") in 2010. In American Farm Bureau Federation (AFBF), et al. v. EPA, et al., groups representing the agricultural and home building industries challenged EPA's authority to set separate allocations for point and nonpoint sources in the Bay TMDL, arguing that the word "total" in TMDL limits EPA to providing a single total level of acceptable pollution for a waterbody rather than dividing it into point source wasteload allocations ("WLAs") and nonpoint source load allocations ("LAs"). The groups also alleged EPA exceeded its Clean Water Act ("CWA") authority by requiring "reasonable assurance" from the states that the states would implement sufficient nutrient and sediment reduction strategies to meet the allocation