WASHINGTON, Aug. 21, 2014 -- The American Farm Bureau Federation (AFBF) late Wednesday asked a federal appeals court to reverse a lower court ruling that upheld the EPA's pollution limits for the Chesapeake Bay watershed.

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While the lower court's ruling was restricted to areas surrounding the Chesapeake Bay, its decision could have sweeping effects on states and economic activity across the country, AFBF said in a news release. EPA has claimed that its Bay limits were developed in cooperation with the Bay states. But the AFBF brief argues that if EPA can set federal limits and deadlines in its so-called TMDL (Total Maximum Daily Load) plan, “then it can do so with or without state cooperation.” AFBF said that's the reason 21 state attorneys general are supporting AFBF's petition.

AFBF says the appeals court will decide whether EPA has the power to set only the “total” allowable pollutant load for waters, as the Farm Bureau and its allies maintain, or also to set individual limits for farming, construction or other activities across the landscape, as EPA claims. AFBF maintains that Congress reserved such land use decision-making exclusively for the states.

Under EPA's view of its power, “EPA could assign nitrogen, phosphorus, and sediment limits for each farm, home site, or even each acre of undeveloped land across the countryside,” AFBF said. Such broad power “amounts 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.”

AFBF also noted that because restoration of the Bay does not depend on what it said are the “unlawful” aspects of the TMDL before the court, cleanup would continue with a court ruling in AFBF's favor. According to the AFBF brief, a ruling in its favor would not disturb the total pollutant limit set by EPA for each segment of the Bay. In addition, a ruling removing the challenged EPA source limits or “allocations” from the TMDL “would in no way impair the ability of any state to achieve those objectives. It would only allow them the freedom-as Congress intended-to set different allocations and deadlines, if they so choose.”


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