Battle Over Chesapeake Bay TMDLs Moves To Appeals Court

21 state attorney generals join Farm Bureau appeals challenge of U.S. EPA's authority to enforce TMDLs in Chesapeake Bay watershed.

Published on: Feb 5, 2014

Last week, American Farm Bureau Federation filed a long-awaited federal appeal seeking to overturn last fall's U.S. District Court ruling that upheld U.S. EPA's authority to enforce total maximum daily loads on the Chesapeake Bay watershed.

Monday, 21 state attorney generals and eight counties joined Farm Bureau and other plaintiffs with a friend of the court briefs challenging EPA's authority over state authority.  

The appeal to the U.S. Third Circuit Court of Appeals was filed by American Farm Bureau, National Association of Home Builders, National Corn Growers Association, National Pork Producers Council, Pennsylvania Farm Bureau, The Fertilizer Institute and the U.S. Poultry & Egg Association.

NOT AS PEACEUL AS IT LOOKS: EPAs quest to usurp state rights and enforce Clean Act TMDLs on the Chesapeake Bay watershed may ripple nationwide if it wins the U.S. District Appeals Court appeal case.
NOT AS PEACEUL AS IT LOOKS: EPA's quest to usurp state rights and enforce Clean Act TMDLs on the Chesapeake Bay watershed may ripple nationwide if it wins the U.S. District Appeals Court appeal case.

Related: Groups Appeal Chesapeake Bay Ruling

But it's not just an agricultural or environmental issue, suggests Kansas Attorney General Derek Schmidt.

It's the continuing tug-of-war between states and federal government over finding a balance of power. That's why Schmidt led the effort to file an amicus brief from attorney generals in Alabama, Alaska, Arkansas, Florida, Georgia, Indiana, Kentucky, Louisiana, Michigan, Missouri, Montana, Nebraska, North Dakota, Oklahoma, South Carolina, South Dakota, Texas, Utah, West Virginia and Wyoming.

The clear-as-mud issue?
"Can EPA reach beyond the plain language of the Clean Water Act and micromanage how states meet federal water-quality standards?" Schmidt asks.

"We think the clear answer is 'no'. We'd 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."

"Congress deliberately structured the Clean Water Act to involve states in the decision-making process when nonpoint source runoff is being regulated," he elaborates. "That's because runoff regulation inevitably implicates land use decisions and private property rights. Congress did not intend to centralize those decisions in Washington, D.C."

The appeal also lays out the argument that the states and stakeholders already were making progress toward Bay water quality improvements. It states the TMDLs restrict the control of states and localities over land use and economic development decisions as they relate to water quality.

The appeal also states that Congress authorized EPA to establish only a "total load" – not allocations that provide "reasonable assurance" requirements or deadlines. EPA, however, interprets the Clean Water Act as allowing the implementation of specific TMDLs for impaired waterways at the state level.

"These are uniquely local decisions that should be made by local governments," contends AFBF President Bob Stallman. "That's why this power is specifically withheld from EPA in the Clean Water Act."

Chesapeake Bay Foundation responds
The Chesapeake Bay Foundation, which intervened on behalf of U.S. EPA, issued this reaction to the 21-state filing by the attorney generals, from CBF President Will Baker:

"The Chesapeake Bay states have worked with the federal government to develop a blueprint for clean water in local rivers, streams and the Chesapeake Bay. And, it's working."

"[U.S. District Court] Judge Rambo found that the process was legal, contends Baker, and that EPA didn't overstep its bounds.

"We say to Missouri, Indiana, Kansas, Alaska and the other 17 states, don't tell us how to restore clean water in our backyard. Each of the six Bay states and the District of Columbia – including hard working famers, businesses, and individuals – are cooperating.

"Together, we're well on our way to making our rivers and streams safer, improving habitat, protecting human health and strengthening local economies," he concludes.

The cooperative spirit that Baker alludes to isn't quite the full story. Risks of EPA's actions should watersheds fall behind on imposed Watershed Implementation Plan milestones tell a different story. For the details, click here.