The following first appeared in Bay Journal earlier this month.
The battle lines have been drawn in the fight to defend the numeric pollution limits, known under the Clean Water Act as total maximum daily loads or TMDLs, and the state implementation plans. Taken together, they form the Chesapeake Bay Clean Water Blueprint, a road map for Bay restoration.
Having lost in the federal district court, the Farm Bureau and its allies have appealed to the Third Circuit Court of Appeals in Philadelphia. Attorneys general from 21 states, none of which touch the Bay, have joined them by filing a friend of the court brief in support.
Their key argument is that the plan is an EPA over-reach, which they say gives the EPA control over land use. They claim the EPA can now tell farmers where to farm and builders where to build.
Kansas Attorney General Derek Schmidt said in a statement, "The issue is whether EPA can reach beyond the plain language of the Clean Water Act and micromanage how states meet federal water-quality standards. We think the clear answer is 'no,' and 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."
The Chesapeake Bay Foundation respectfully disagrees, and supports the lower court decision citing the Blueprint as a model of the "cooperative federalism" that the Clean Water Act intended.
A little background: After years of failed agreements and several lawsuits to clean up the Chesapeake Bay and the rivers and streams that feed it, the Bay states worked closely with the EPA to develop the Blueprint.
The pollution limits set the maximum pollution that rivers and the Bay can withstand and still be healthy. The states then worked with the EPA to assess how much pollution each state needs to reduce.
Knowing the numbers of pounds of nitrogen, phosphorus and sediment pollution that needed to be reduced to meet the goal, each state developed its own plan for how it could achieve the reductions. The choices were made by the states, based on how each state thought the reductions could best be achieved. The pounds that each state must reduce were determined using sophisticated watershed models and information provided by the states. Because the states had attempted to meet similar reduction goals at least two different times and failed, the states and the EPA agreed that the states would need to provide reasonable assurances that they could succeed.
Virginia's Attorney General Mark Herring has also weighed in with a friend of the court brief supporting the EPA. He said, "When the most promising plan to protect and restore the Bay comes under attack, I am going to stand up for the health of Virginia's families, for Virginia's economic interests, for Virginia's efforts to restore the Chesapeake Bay. Each Bay state, including Virginia, voluntarily entered into the current Bay restoration plan because of the economic, recreational, environmental and intrinsic value of a healthy Chesapeake Bay."
Lined up in support of the EPA are the other intervening parties, including: CBF; the Pennsylvania Municipal Authorities Association, which represents hundreds of Pennsylvania local governments; and the National Association of Clean Water Agencies.
In addition to the Virginia amicus brief, others filing amicus briefs in support of the Blueprint include Maryland, environmental groups led by the National Parks and Conservation Association and the West Virginia Rivers Coalition, a coalition of Florida conservation organizations, a group of law professors, and cities and towns like New York City and Annapolis.
This a historic moment in time for the Chesapeake Bay. It is the best, and perhaps last, chance for restoration. Progress is being made, pollution is being reduced, and jobs are being created to achieve the clean water goals.
We are confident that the federal district court's decision will be upheld and that we will be able to leave a legacy of clean rivers and streams to our children and future generations.
—Jon Mueller, CBF's Vice President for Litigation