Last week, the American Farm Bureau Federation (AFBF), filed a federal appeal seeking to overturn a decision by the U.S. Court of Appeals for the Third Circuit that upheld the Environmental Protection Agency’s authority to enforce total maximum daily loads (TMDLs) on the Chesapeake Bay watershed. Other groups joining the appeal include the 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.
The appeal argues that the states and stakeholders already were making progress in improving the Chesapeake Bay water quality and the TMDLs restrict the control of states and localities over land use and economic development decisions as related to water quality. “They are uniquely local decisions that should be made by local governments,” said AFBF President Bob Stallman. “That’s why this power is specifically withheld from EPA in the Clean Water Act.”
This week, attorneys general in 21 states have joined the American Farm Bureau Federation in its efforts in challenging EPA’s authority over state authority. Kansas Attorney General Derek Schmidt led the effort to file the amicus brief from attorneys generals in Alabama, Alaska, Arkansas, Florida, Georgia, Indiana, Kentucky, Louisiana, Michigan, Missouri, Montana, Nebraska, North Dakota, Oklahoma, South Carolina, South Dakota, Texas, Utah, West Virgina, and Wyoming.
Schmidt suggested that the issues surrounding the Chesapeake Bay cleanup are not just agricultural or environmental issues. “Can EPA reach beyond the plain language of the Clean Water Act and micromanage how states meet federal water-quality standards?” Schmidt said. “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,” Schmidt said. “That’s because runoff regulation inevitably implicates land use decisions and private party rights. Congress did not intend to centralize those decisions in Washington, D.C.”
President Obama issued an executive order to restore the Chesapeake’s health in May 2009. The next year, EPA embarked on an aggressive program to limit the waste that was ending up in the bay from municipal wastewater management systems, which are regulated under the Clean Water Act. The EPA stepped in to organize efforts by six bay states–Virginia, Maryland, West Virginia, Pennsylvania, Delaware, New York, and the District of Columbia. Some of those states were reluctant, but EPA under the Clean Water Act, said it would withhold permits that would have limited construction projects and allowable sewer releases if the states did not come up with individual plans to reduce pollution.
