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Whitney Pipkin writes at the intersection of food, agriculture and the environment from her home base in Northern Virginia. Her work for the Bay Journal often focuses on the Potomac and Anacostia rivers, and she is a fellow of the Institute for Journalism & Natural Resources. .(JavaScript must be enabled to view this email address).

Details filed in industry groups’ TMDL appeal

  • January 28, 2014

Industry groups that are appealing a federal district court’s decision to uphold the EPA’s “pollution diet” for the Chesapeake Bay filed a more detailed brief about their appeal this week.

The American Farm Bureau Federation and other farm- and development-minded groups sued the EPA within weeks of its issuing the Chesapeake Bay Total Maximum Daily Load (TMDL) in December 2010. They said the EPA had overstepped its boundaries as laid out in the Clean Water Act and was treading on states’ authority to determine how and where to meet water quality goals.

Their appeal restates this argument in more detail, reiterating that the groups believe the Clean Water Act leaves it up to states to establish water quality standards for waters within their borders.

U.S. District Court Judge Sylvia Rambo ruled in September that the EPA acted within its Clean Water Act authority and that its role was critical in developing a multi-state pollution reduction strategy.

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

The appeal argues that Congress established the Clean Water Act on a basis of “cooperative federalism” that works with states as they chart their courses toward clean water. It also states that, even if the EPA has the authority to approve or establish certain allocations, it lacks the authority to mandate to states their implementation in any specific manner or time.

Judge Rambo stated in her decision that the parties involved in the suit had the opportunity to participate in drafting the TMDL “in a meaningful way,” and she called the process an example of cooperative federalism.

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

“These are uniquely local decisions that should be made by local governments,” AFBF President Bob Stallman said in a press release about the appeal. “That is why this power is specifically withheld from EPA in the Clean Water Act.”

View our previous stories about the groups’ plans to appeal here, and about the judge’s original decision here.

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About Whitney Pipkin
Whitney Pipkin writes at the intersection of food, agriculture and the environment from her home base in Northern Virginia. Her work for the Bay Journal often focuses on the Potomac and Anacostia rivers, and she is a fellow of the Institute for Journalism & Natural Resources. .(JavaScript must be enabled to view this email address).
Read more articles by Whitney Pipkin

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