Judge upholds EPA's regulation of Chesapeake Bay

Judge upholds EPA's regulation of Chesapeake Bay

Ag groups disagree with court decision that EPA, not states, have right to regulate pollutants.

A FEDERAL judge has rejected a legal challenge to the Chesapeake Bay total maximum daily load (TMDL), ruling that "the framework established by the Bay Partnership in developing the bay TMDL is consistent with" applicable law and that the Environmental Protection Agency "did not unlawfully infringe on the bay states' rights" because the Clean Water Act (CWA) "envisions a strong federal role for ensuring pollution reduction."

Non-point sources are the primary sources of pollutants to the Chesapeake Bay, with agriculture alone accounting for 44% of the nitrogen and phosphorus loads and 65% of the sediment loads delivered to the bay, the court brief notes.

Efforts to improve the water quality of the bay have been ongoing for more than 30 years, but the latest steps alarm agricultural groups as going too far and representing an overreach for EPA.

The American Farm Bureau Federation (AFBF) and several agricultural organizations filed a legal challenge to EPA's watershed regulation and implementation of the Chesapeake Bay TMDL in 2011. The court heard oral arguments on Oct. 4, 2012.

The groups fear that the "pollution diet" mandated by the TMDL and the state implementation plans dictated by EPA will increase the regulatory burden on both livestock producers and row crops — as well as builders, homeowners, towns and countless other businesses — throughout the 64,000-square mile Chesapeake Bay watershed.

One of the major arguments posed by AFBF and interveners questioned EPA's right to implement the pollution restrictions in the TMDL plan.

In a statement, AFBF president Bob Stallman said, "Congress did not authorize EPA to dictate how farmers, builders, homeowners and towns would share the responsibility of achieving clean water. That is the states' job. We believe EPA's approach wrongly puts federal agency staff in charge of intensely local land use decisions."

U.S. court Judge Sylvia H. Rambo wrote in the opinion that the court agrees with the plaintiffs that TMDL implementation responsibilities primarily fall to the individual states but disagrees that the final TMDL represents an unlawful implementation plan.

The document adds that "even where EPA has delegated permitting authority to the states, EPA retains the right to include additional limits in (National Pollutant Discharge Elimination System) permits when necessary to ensure achievement of water quality."

The court noted that EPA has supervisory authority, which allows it to continue in the role laid out in the TMDL plan.

"EPA's supervisory authority is consistent with the CWA's requirement that EPA 'ensure that management plans are developed and implementation is begun by signatories to the Chesapeake Bay Agreement to achieve and maintain ... the nutrient goals of the Chesapeake Bay Agreement ... (and) the water quality requirements necessary to restore living resources to the Chesapeake Bay ecosystem.'"

AFBF attorney Ellen Steen said the ruling is "entirely wrong." Steen explained that the court found that "well if Congress, in the statute, didn't tell EPA that they can't do this, then I'm going to find that EPA can do this. It gives the agency carte blanche to do whatever they want. It can mean that EPA might come on (a farmer's) land and say, 'You really can't farm here anymore,' and that's a big deal."

Stallman said farmers care deeply about the natural environment and want to do their part to improve water quality.

Pennsylvania Farm Bureau president Carl T. Shaffer added, "Pennsylvania farmers have already implemented major changes and improvements on their land to enhance water quality entering the bay, and those efforts will continue in the future. We are also working with state officials to further enhance efforts to reduce runoff from farmland."

AFBF has one month to decide whether it will appeal the decision. "AFBF and our allies in this case are reviewing the decision and evaluating next steps," Stallman said.

Volume:85 Issue:39

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