NAHB & American Farm Bureau v. EPA - TMDL (Impaired Waters)


United States Court of Appeals for the Third Circuit

NAHB Involvement


On Dec. 29, 2010, EPA finalized the Chesapeake Bay Total Maximum Daily Loads (TMDLs) — the largest and most complex set of TMDLs ever promulgated. The Bay TMDLs include waste load allocations and load allocations for three pollutants (nitrogen, phosphorus and sediment) discharged into 92 impaired waterbodies in the 64,000-square-mile watershed that includes six states and the District of Columbia. The final 552 individual loads were issued after a 45-day notice-and-comment period held from Sept. 24 to Nov. 8, 2010 (i.e., allowing 1.96 hours of review time per allocation).

On Jan. 10, 2011, the American Farm Bureau Federation (AFBF) and its Pennsylvania-based affiliate filed a complaint against EPA alleging that the Bay TMDLs:

  1. exceeded EPA's Clean Water Act ("CWA") authority by assigning pollutant loading allocations among individual sources, thereby impinging on state implementation decisions;
  2. were arbitrarily and capriciously based on scientifically flawed modeling and pollutant loading assumptions; and
  3. were enacted without providing adequate time and information for meaningful notice-and-comment under the Administrative Procedure Act (APA).

On June 24, 2011, NAHB also filed a complaint challenging the Chesapeake Bay TMDLs, and on June 28, Judge Rambo consolidated NAHB's lawsuit with the Farm Bureau's case.

Unfortunately, in September 2013, the District Court found in favor of the EPA. It ruled that the Agency did not "implement" the TMDL, complied with the APA procedures, and that it was not arbitrary and capricious for the EPA to rely on the models.

NAHB and the Farm Bureau appealed this decision to the Third Circuit Court of Appeals. Our final brief was filed in August 2014 and oral argument was held on Nov. 17, 2014. In July 2015, the Third Circuit ruled in favor of EPA. The court considered this a typical "Chevron" case, meaning that if the statute is not "clear" the courts will defer to the agency. The court found that the word "total" in total maximum daily load was not clear and that allowed it to defer to the EPA interpretation. We are weighing our options on how to move forward with this case.