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 Homebuilders 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, DC.” Continue reading….
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