Virginia supports EPA in battle with Farm Bureau over Chesapeake Bay pollution

By Daniel Enoch

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WASHINGTON, April 11, 2014 - Virginia has filed a brief in support of the U.S. Environmental Protection Agency in its legal battle with the American Farm Bureau Federation (AFBF) to set pollution limits for the Chesapeake Bay.

State Attorney General Mark Herring said he filed the amicus brief to protect Virginia's efforts to restore the Bay and the right of Virginia and other Bay states to work together to protect it. AFBF is currently appealing a district court decision that upheld EPA's right to set pollution limits in the U.S. Court of Appeals for the Third Circuit in Philadelphia.

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AFBF's lawsuit claimed among other things that the EPA lacks authority to allocate limits on levels of nitrogen, phosphorus and other pollutants, that the public did not have an adequate opportunity to weigh in on the plan, and that EPA's action usurped the rights of the states.

“The claims in the appeal that the EPA has usurped state authority are simply wrong,” Herring's office said in a news release. “The Bay states have long been and continue to be partners with each other and the EPA in protecting the Bay.”

At issue in the case is the EPA's 2010 adoption, under the Clean Water Act, of a “pollution diet,” also called a Total Maximum Daily Load (TMDL,) based on watershed management plans developed by the states whose waters flow into the Bay. According to Virginia's brief, it is “undisputed that the Bay TMDL details at issue...are creatures of the Bay States' authority, with the states themselves creating and committing to individual plans which were then incorporated by the EPA into the final TMDL blueprint.”

Herring said the brief also refutes the arguments in a recently filed amicus brief from 21 state attorneys general -  all but one of whom are from outside the Bay watershed - that opposed the ability of Bay states and the EPA to work cooperatively to address the health of the Bay.

“This case is simply about whether Virginia and the other Bay states have the authority to work cooperatively to manage and restore the Bay, as they have done for decades,” Herring said. “Each Bay state, including Virginia, voluntarily entered into the current Bay restoration plan because of the economic, recreational, environmental, and intrinsic value of a healthy Chesapeake Bay. I hope the courts and my colleagues, none of whom serve a state which touches the Bay, recognize that fact and allow Virginia and its partners to continue their work."

Herring said the Chesapeake, North America's largest estuary, annually provides an estimated $2 billion and 41,000 jobs from commercial fishing, $1.6 billion and 13,000 jobs in saltwater angling, $70 million in crabs, and $680 million in tourism.

The district court upheld the TMDL plan, noting that “that the procedures established to ensure public participation in the TMDL drafting process were sufficient” and “the framework established by the Bay Partnership in developing the Bay TMDL is consistent with the provisions of the [Clean Water Act].”

Virginia is the first Bay state to defend the restoration plan in the case, Herring's office said.

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