Validity of Chesapeake Bay total maximum daily load upheld

Abstract

On February 29, 2016, the US Supreme Court declined to hear the appeal of the American Farm Bureau Federation (Farm Bureau) from the Third Circuit Court of Appeals' decision approving the US Environmental Protection Agency's (USEPA's) total maximum daily loads (TMDLs) for the Chesapeake Bay (Farm Bureau v. EPA, 792 F.3d. 281 [3d Cir. 2015]; 136 S.Ct. 1247 [2016]). This decision means the ambitious Chesapeake Bay TMDL program can continue notwithstanding Farm Bureau legal claims that the program improperly forces states into implementing agricultural nonpoint pollution control requirements that USEPA cannot implement directly. The Court's decision also suggests that the USEPA strategy embedded in the Chesapeake Bay TMDL program can be implemented in other regions of the United States to address nonpoint agricultural pollution. This article explores the complexities of addressing agricultural nonpoint source water pollution under the Clean Water Act (CWA), how USEPA has developed an effective strategy to obtain cooperation in a multistate context to deal with agricultural nonpoint source pollution, and why the Chesapeake Bay TMDL was legally upheld in federal court.