The following first appeared in Bay Journal News earlier today.
Arguing that the Chesapeake Bay cleanup plan "strips states of their traditional rights to make land use decisions," the attorneys general of 21 states on Monday joined farm groups seeking to reverse a federal judge’s decision last year upholding the plan.
Their friend-of-the-court brief supports the appeal by the American Farm Bureau, the National Association of Home Builders and several agricultural trade groups who are seeking to overturn Federal District Judge Sylvia Rambo's ruling last September that the EPA acted within its authority to establish the Chesapeake Bay Total Maximum Daily Load, or pollution diet, in December 2010.
Only one of the states signing onto the brief, West Virginia, represented a portion of the Bay watershed. But eight counties from the Bay watershed filed a separate brief supporting the appeal.
Both the states and counties argued that the EPA exceeded its Clean Water Act authority in the Bay TMDL because it not only set limits on the amount of nitrogen, phosphorus and sediment that can enter the Chesapeake, but also set limits on the amounts of those pollutants that can enter from each major river basin and state. It further limited the amount that could come from major pollution sectors, such as wastewater treatment plants, agriculture, stormwater and septics.
The briefs argue that while the EPA might be able to set pollution limits for the Bay as a whole, the more detailed allocations in the TMDL have the practical effect of dictating local land use decisions, which the Clean Water Act leaves in the hands of state and local governments.
The attorneys general said that the EPA used the Bay TMDL "to micromanage sources of pollution that by tradition—and by statute—have been beyond EPA’s reach."
Kansas Attorney General Derek Schmidt, who filed the brief, said in a statement that "we would prefer to get that answer while the question surrounds land use in the Chesapeake Bay instead of waiting for EPA to do the same thing along the Mississippi River basin."
Most, though not all, of the states joining in the brief were in the Mississippi River drainage, where agricultural groups are worried that similar efforts may be made to force nutrient reductions from Midwest farms. The Mississippi is the major source of pollution to the northern Gulf of Mexico, which is also on the EPA's list of impaired waters.
"Congress deliberately structured the Clean Water Act to involve states in the decision-making process when nonpoint source runoff is being regulated," Schmidt said. "That's because runoff regulation inevitably implicates land use decisions and private property rights, and Congress did not intend to centralize those decisions in Washington, D.C."
In her 99-page ruling last October, Rambo said that EPA had not exceeded its authority, and noted that the Bay TMDL had been developed with the participation of all states in the watershed over a period of years. She called its development process an example of "cooperative federalism" and said it was "misleading" to suggest the allocations were set independently by the EPA. Rather, she said, they were largely developed by the states with considerable "back and forth" with the EPA.
The attorneys general argued that regardless of state participation in the process, the EPA lacked authority under the Clean Water Act to make such detailed allocations "and no acquiescence by any state can give it the authority it lacks."
Although a number of trade groups had joined the American Farm Bureau Federation in its original challenge to the TMDL, Monday's filings in support of the appeal was the first time that states and counties had joined in the case.
EPA officials had no comment as they had not had a chance to review the briefs.
Will Baker, president of the Chesapeake Bay Foundation—one of several groups that have intervened on EPA's side in the case—criticized the states for using concerns about the other watersheds to try to block Bay cleanup plans.
"We say to Missouri, Indiana, Kansas, Alaska, and the other 17 states, don't tell us how to restore clean water in our backyard," Baker said. "Each of the six Bay states and the District of Columbia—including hard-working farmers, businesses, and individuals—are cooperating. Together, we are well on our way to making our rivers and streams safer, improving habitat, protecting human health, and strengthening local economies. Those are good things, at least here."
The attorneys general from Kansas, Indiana, Missouri, Alabama, Alaska, Arkansas, Florida, Georgia, Kentucky, Louisiana, Michigan, Montana, Nebraska, North Dakota, Oklahoma, South Carolina, South Dakota, Texas, Utah, West Virginia, and Wyoming joined in support of the reversal. Most were Republicans, although three—those from Missouri, Kentucky and Arkansas—were Democrats.
The counties joining in a brief were Cambria, Clearfield, Lancaster, Tioga and Perry counties in Pennsylvania; Hardy and Pendleton counties in West Virginia; and New Castle county in Delaware.
The case is pending before the 3rd U.S. Circuit Court of Appeals in Philadelphia.