Archive for the ‘TMDL’ Category

Barnum Timber Co. v. EPA: Shooting the Messenger?

A recent Marten law article drew my attention to the case of Barnum Timber Co. v. EPA, which was decided in early February by the Ninth Circuit. In April of 2008, Barnum filed a complaint in California district court claiming that the EPA’s approval of California’s designation of Redwood Creek as an “impaired water” was “arbitrary and capricious” and that it drove down the value of properties adjacent to the water in question.

Photo courtesy of NASA. Some rights reserved.

The designation was part of California’s 2006 “303(d) list” (see page 49 for the section on Redwood Creek), which identified polluted waters around the state. States with bodies of water listed as “impaired” under Section 303 of the Clean Water Act must develop TMDLs or Total Maximum Daily Loads for these waters – calculations of “the maximum amount of a pollutant that a waterbody can receive and still safely meet water quality standards.”

Barnum claimed it had “suffered extra costs to satisfy land use restrictions” triggered by the Redwood Creek’s 303(d) listing, and asked the court to enjoin the EPA from enforcing any TMDL for the creek. But a motion to dismiss filed by the EPA was eventually granted and shortly thereafter, the district court entered a final judgment in the EPA’s favor.

Still, Barnum didn’t give up.

In their February 3rd opinion, the Ninth Circuit reversed the prior dismissal of Barnum’s complaint, and furthermore concluded that an amended complaint filed by Barnum in their appeal “demonstrated that Barnum has standing as a landowner whose property values are adversely impacted to challenge EPA’s retention of Redwood Creek as a § 303(d) impaired water body.”

Litigation regarding TMDLs is not uncommon. In fact, the EPA’s website has an entire page dedicated to just such litigation. As much as you’d expect most cases to be like the Burnam one, with corporate interests as the plaintiff, complaining about overregulation and demanding their right to load into impaired waters a total amount of pollutant far exceeding the maximum, I was surprised to see that a majority of the plaintiffs were environmental or conservation groups that were using litigation as a means of forcing the EPA’s hand – alleging that the EPA has a duty to establish TMDLs in states that fail to do so.

Which is what I believe the EPA should be doing. In the Burnam case, at least we have a state that is proactive enough to identify its own impaired waters. What bothers me about Burnam’s complaints aren’t the technicalities, most of which are probably escaping me, anyway, but rather the idea that simply the identification of the water as impaired is the source of Burnam’s indignation. Isn’t what’s really driving down property values all the crap in the water?

While it doesn’t address my decidedly non-legal objection, worth reading is the fairly length dissent by Judge Gwin (found at page 13 of the opinion), which takes Barnum to task, calling the claimed injuries “at best, conjectural or hypothetical” and finding “no causal connection between EPA’s acts and the speculative injuries claimed.”

American Farm Bureau Federation Hates New Year’s Pollution Diet

Frustrated after more than 20 years of largely unsuccessful efforts to clean up Chesapeake Bay – the largest estuary in the US – the EPA was understandably excited to announce the establishment of a landmark “pollution diet” designed to restore clean water in the Bay and its tidal rivers.

Photo by D.L. Some rights reserved.

The catchily-named “diet” is actually a Total Maximum Daily Load (TMDL) – a set of specific limits on the amount of various pollutants allowed to enter the 64,000-square-mile watershed. The massively comprehensive Bay TMDL also identifies the reductions of nitrogen, phosphorus and sediment coming from various states in the area that are necessary to help meet these limits.

Agriculture, through its use of fertilizers, cropland tilling, and application of animal manure, is the largest single source of nitrogen, phosphorus, and sediment loading to the Bay. It is a natural target of the TDML. The American Farm Bureau Federation (AFBF), however, will not stand to have its agricultural belt tightened by the EPA.

On January 10, 2011, the AFBF, together with the Pennsylvania Farm Bureau, filed a complaint in federal court requesting that the assigned pollutant loads be declared “not legally enforceable,” and that the TMDL be vacated.

AFBF finds the TMDL “fatally flawed” in the following four respects:

(a) the “allocation” of pollutant loads among sources in a TMDL exceeds EPA’s authority under the Clean Water Act; (b) the assigned pollutant loads are based on erroneous information; (c) the erroneous information used to derive the assigned pollutant loads was fed into computer models that are unsuitable for deriving such loads – even with accurate information; and (d) during the comment period the public did not have access to the information it needed to comment effectively on the modeling results and the assumptions in the Final TMDL.

Does this lawsuit mean that the Bay will continue to be fattened up with pollutants, or could this diet really stick?

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