EPA Water Cleanup Plan Upheld

By Todd Neeley
DTN Staff Reporter

OMAHA (DTN) — The EPA has the authority to set pollution control standards in the Chesapeake Bay, a federal court ruled Monday, hindering several national agriculture groups’ efforts to stop the agency from what they say is federal overreach in setting total maximum daily loads, or TMDLs.

As of Monday afternoon, agriculture groups that were plaintiffs in the case, including the American Farm Bureau Federation, the National Chicken Council, the Fertilizer Institute, National Pork Producers Council, National Turkey Federation, National Corn Growers Association, were silent on the ruling.

In its 60-page ruling, the United States Court of Appeals for the Third District said EPA is acting within its legal authority in setting a TMDL in an estuary that covers parts of New York, Pennsylvania, Delaware, Maryland, Virginia, West Virginia and the District of Columbia.

The court said in its ruling that EPA is acting no differently than it has in implementing thousands of TMDLs across the country.

"Any solution to it will result in winners and losers," the court said in its ruling. "To judge from the arguments and the amici briefs filed in this case, the winners are environmental groups, the states that border the bay, tourists, fishermen, municipal waste water treatment works, and urban centers. The losers are rural counties with farming operations, nonpoint source polluters, the agricultural industry, and those states that would prefer a lighter touch from the EPA.

"Congress made a judgment in the Clean Water Act that the states and the EPA could, working together, best allocate the benefits and burdens of lowering pollution. The Chesapeake Bay TMDL will require sacrifice by many, but that is a consequence of the tremendous effort it will take to restore health to the bay … Farm Bureau’s arguments to the contrary are unpersuasive, and thus we affirm the careful and thorough opinion of the district court."

Agriculture groups had made the case that farmers operating in the Chesapeake Bay would shoulder the brunt of responsibility in cutting nutrient runoff through expensive conservation efforts and other means, and that state governments have the primary authority to improve water quality.

In September 2013, a district court ruled EPA had the authority to set strict numeric nutrient standards and that farm groups had failed to prove EPA’s decision to set a TMDL in the Chesapeake Bay was either arbitrary or capricious.

The court battle concerns EPA’s nutrient restrictions in the 64,000-square-mile watershed that includes more than 50 tributaries. From the outset of the lawsuit originally filed in 2013, American Farm Bureau Federation argued in court that EPA exceeded states’ right to regulate their own waters.

AFBF asked the appellate court to decide whether EPA has the authority to set both total allowable nutrient loads and individual limits for farms and other activities in the bay.

In the appeal, AFBF contended if EPA can set nutrients limits on individual farms or acreages, it would amount to "nothing short of federal land use zoning authority, which cannot be squared with Congress’s clear and consistent determination to reserve such authority for the states."

The Third Circuit Court on Monday disagreed with AFBF’s claims on land use, saying, "Perhaps we would reach a different result if the TMDL in fact made land-use decisions diminishing state authority in a significant way; we might then say that Congress delegated some authority over the definitions of technical terms in the Clean Water Act but not so much discretion as to usurp states’ zoning powers."

A number of environmental groups intervened in the case, including the Chesapeake Bay Foundation, Defenders of Wildlife, Midshore Riverkeeper Conservancy and the National Wildlife Federation, along with local communities as intervenors or defendants.

Read the court’s ruling here: http://tinyurl.com/…

Todd Neeley can be reached at todd.neeley@dtn.com

Follow him on Twitter @toddneeleyDTN

(AG)