SCOTUS Appeal on TMDLs Filed

6 Nov 2015

By Todd Neeley
DTN Staff Reporter

OMAHA (DTN) -- Several major agricultural groups want the U.S. Supreme Court to define whether states or the federal government has authority under the Clean Water Act to implement and enforce specific nutrient standards

In a 44-page petition for writ of certiorari filed with the high court Friday, groups led by the American Farm Bureau Federation specifically want the Supreme Court to review whether total maximum daily loads, or TMDLs, are up to the states or the federal government to implement.

During a legal battle encompassing the past few years, the agriculture interest group has argued all along the implementation of so-called pollution diets in watersheds like the Chesapeake Bay should be left up to the states.

In July, the United States Court of Appeals for the Third District ruled EPA was acting on its authority in the Clean Water Act by implementing numeric standards to reduce the flow of nutrients from farms and other sources in the estuary that covers parts of New York, Pennsylvania, Delaware, Maryland, Virginia, West Virginia and the District of Columbia The appeals court concluded EPA was acting no differently than it had in implementing thousands of TMDLs across the country.

Farm Bureau was joined by the National Chicken Council, the Fertilizer Institute, National Pork Producers Council, National Turkey Federation and National Corn Growers Association in the legal challenge. In their petition to the Supreme Court, the farm groups argued the states’ rights issue needs to be resolved by the high court because there are thousands of TMDLs across the country.

“Statutorily defined roles for EPA in each program are designed to preserve the ‘primary’ rights and responsibilities of states to achieve the goal of clean water,” AFBF said in the petition. “...The act (Clean Water Act) requires the states -- and only the states -- to develop plans to implement TMDLs.

“This case concerns EPA’s establishment of a TMDL for the Chesapeake Bay -- the most far-reaching TMDL ever developed...The cost of state compliance is staggering -- tens of billions of dollars. In conflict with other courts of appeals’ rulings as to the proper scope of TMDLs, the Third Circuit upheld EPA’s interpretation of the act to authorize the bay TMDL.

“The question presented is whether the Third Circuit erred by deferring to EPA’s interpretation of the words ‘total maximum daily load’ to permit EPA to impose a complex regulatory scheme that does much more than cap daily levels of total pollutant loading and that displaces powers reserved to the states.”

Agriculture groups made the case farmers operating in the Chesapeake Bay 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 farm groups failed to prove EPA’s decision to set a TMDL in the Chesapeake Bay was either arbitrary or capricious.

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

AGRICULTURE CONCERNS

In a news release Friday, AFBF President Bob Stallman said the group made its appeal to the Supreme Court because farmers and ranchers are concerned EPA will use TMDLs to assert control of private property.

“It’s about whether EPA has the power to override local decisions on what land can be farmed, where homes can be built, and where schools, hospitals, roads and communities can be developed,” he said. “This is nothing less than federal super-zoning authority. As much as we all support the goal of achieving a healthy Chesapeake Bay, we have to fight this particular process for getting there.”

The legal challenge includes friend-of-the-court backing from 21 states, 39 members of Congress and a group of counties within the Chesapeake Bay watershed that supported AFBF’s legal challenge in the lower courts. AFBF General Counsel Ellen Steen said in a statement they are looking for more support behind their latest efforts.

“We certainly hope for even more support in asking for Supreme Court review,” Steen said. “There has been a lot of attention to EPA’s recent rule expanding its jurisdiction under the Clean Water Act. EPA’s overreach in the bay ‘blueprint’ is just as aggressive, and its impact on communities and businesses is just as dramatic. From the beginning, this was designed as a model that would be followed around the country.”

In the petition to the Supreme Court, the plaintiffs said the Chesapeake Bay TMDL “deprives state and local governments of the ability to adapt their plans to take account of changes in societal needs, developing technologies, or new information. It prevents them from exercising their own judgment about the best and most efficient ways to achieve the goals for the bay.”

Chesapeake Bay Foundation President William Baker said in a statement Friday the agricultural groups and others are attempting to turn back progress made in the watershed.

“The Farm Bureau and homebuilder’s decision to seek Supreme Court review of their challenge to the Chesapeake clean water blueprint was both predictable and sad,” he said.

“For years, the agricultural and homebuilder lobbying groups have opposed efforts to restore the bay. The agriculture and development industries need to accept that the blueprint is the best hope for restoring water quality in local rivers, streams and the Chesapeake Bay. Their continued reluctance in the face of overwhelming public support stands in stark contrast to the efforts of thousands of farmers and homeowners who have taken action, many at their own expense, to move the Bay clean-up efforts forward.”

Read the petition here: http://tinyurl.com/…

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

Follow him on Twitter @ToddNeeleyDTN

(CC/AG)