Alyssa Sieja
90 Geo. Wash. L. Rev. 989
Nonpoint source pollution, such as agricultural pollution, accounts for most of the pollution that currently impairs waterways in the United States. The Clean Water Act, however, largely leaves regulation of this type of pollution to state management and regulation. This leads to a patchwork of differing water quality standards and control methods throughout the country. This patchwork effect is detrimental when waterways flow downstream from one state into the next. Thus, an interstate problem requires an interstate solution. Although the Clean Water Act typically requires minimal collaboration between states for management of nonpoint source pollution, the Third Circuit’s decision in American Farm Bureau Federation v. EPA affirmed the use of total maximum daily loads (“TMDL”) for watershed level pollution. The creation of the 2010 Chesapeake Bay TMDL was the first large-scale attempt at using multijurisdictional TMDLs to reduce water pollution in interstate waterways. The Chesapeake Bay TMDL, however, has seen disputes and challenges. This type of TMDL has yet to be recreated because of the unique legislative and political forces that aligned for its creation.
As a solution, multijurisdictional TMDLs should be incorporated into interstate compacts to provide an enforcement mechanism to hold other states accountable for their pollution reduction. With nonpoint source pollution knowing no boundaries, there must be a more effective method to ensure neighboring states will implement appropriate water pollution reduction controls. Interstate compacts offer a way for states to enhance the strength of their TMDL agreements by incorporating enforcement and reducing unnecessary federal intrusion.
