Maryland Gov. Martin O’Malley has asked state Attorney General Douglas Gansler to file a brief defending the Chesapeake Bay pollution diet from a legal challenge by agricultural groups.

The action comes in response to the friend-of-the-court filing last week by 21 attorneys general who claim the Environmental Protection Agency exceeded its authority in establishing the Chesapeake Bay Total Maximum Daily Load in 2010. The TMDL set nutrient and sediment pollution limits for the Bay.
If Maryland enters the case, it would be the first time a state took the EPA’s side in the ongoing suit.

“As we continue to make great strides in restoring and protecting the Chesapeake Bay, it is critical that we protect our hard-won progress,” O’Malley said in a statement issued Wednesday.

“While we have accomplished much, there is still more work to be done and it is imperative that we continue our efforts to ensure that our nation’s largest estuary, a true national treasure, will be protected for future generations,” O’Malley said.

“As Chair of the Chesapeake Executive Council, I am encouraging the other states in the Chesapeake Bay watershed to join Maryland and support the EPA in this effort.”

The Executive Council is the top policy making body for the state-federal Bay Program partnership. In addition to Maryland’s governor, its members include the governors of Virginia and Pennsylvania; the mayor of the District of Columbia; the EPA administrator; and the chair of the Chesapeake Bay Commission, which represents state legislatures.

The brief from the 21 attorneys general supports the appeal by the American Farm Bureau Federation, 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 Clean Water Act authority when it established the TMDL, which sets enforceable pollution reduction goals for each state in the watershed.

Although states joining in the brief come from across the nation, most are from the Mississippi drainage basin which could face nutrient reductions in the future because of their pollution which contributes to a large oxygen-starved “dead zone” in the northern Gulf of Mexico.

Chesapeake Bay Foundation President Will Baker praised O’Malley’s action. “We can’t let states from Texas to Alaska who have been recruited by Big Agriculture prevent us from cleaning up our rivers, streams and the Bay.

“We thank Governor O’Malley and Attorney General Gansler for stepping up,” he added. “We call on all the Bay states to demonstrate their commitment to a healthy environment by joining Maryland as friends of the court to fight this outside interference.”

The only attorney general in the Bay watershed among the 21 challenging the EPA was West Virginia Attorney General Patrick Morrisey.

The office of West Virginia Gov. Earl Ray Tomblin has not responded to a request from the Bay Journal to clarify whether he supports Morrisey’s position.

This year, the governors of West Virginia, New York and Delaware are expected to sign a new Chesapeake Bay agreement which is being drafted, making those states full partners in the state-federal Bay Program, and giving the governors seats on the Executive Council.

Besides the 21 states, eight counties from the Bay watershed filed a separate brief supporting the Farm Bureau’s appeal.

The case is pending before the 3rd U.S. Circuit Court of Appeals in Philadelphia.