WASHINGTON, Dec. 28, 2015 - Twenty-two states and 92 members of Congress – all but one a Republican – want the Supreme Court to overturn a federal appeals court decision upholding the Chesapeake Bay Total Maximum Daily Load (TMDL), an EPA-approved plan to reduce nonpoint source pollution flowing into America’s largest estuary.

Left untouched, the Third Circuit Court of Appeals’ July ruling would allow EPA to set TMDLs for even larger areas of the country, according to the amicus (“friend of the court”) briefs filed this month supporting the American Farm Bureau Federation’s November petition to the high court.

The Farm Bureau was joined on the petition by the National Association of Home Builders, National Chicken Council, National Corn Growers Association, National Pork Producers Council, National Turkey Federation, Pennsylvania Farm Bureau, The Fertilizer Institute and the U.S. Poultry and Egg Association.

“EPA did not simply set ‘the total maximum daily load’ for designated pollutants, it imposed caps on thousands of sources and sectors, including specific limits for nonpoint sources that by tradition – and by statute – have been beyond EPA’s reach,” the states said in their brief. “If this TMDL is left to stand, other watersheds, including the Mississippi River Basin (which spans 31 states from Canada to the Gulf Coast) could be next.”

Because farmland comprises the majority of the basin’s land, “the billions of dollars in implementation costs due to source- and sector-specific EPA-mandated load reductions would virtually guarantee that significant tracts of agricultural land would be taken out of production,” they said.

Forestry owners and the U.S. Chamber of Commerce also filed amicus briefs on Dec. 9. The court has given EPA and any other parties that wish to oppose the petition – such as the victorious environmental groups – until Jan. 19 to file responses.

The amici contend that the Third Circuit’s broad interpretation of the Clean Water Act gives EPA carte blanche to set specific limits for pollutants.

“The Third Circuit’s approval of the Chesapeake Bay TMDL has implications far beyond the Chesapeake Bay watershed because it opens the door for EPA to dictate land-use management decisions across the country,” the states said.

At issue in particular is the meaning of the word “total.” The Third Circuit said “total maximum daily load” can be read “to include allocations, target dates, and reasonable assurances” that the goals will be met.

But “total maximum daily load” should mean that EPA “can do nothing more than set an aggregate upper-limit-amount of certain pollutants that a water is allowed to receive each day,” the states said.

In other words, they said, EPA can define the targets but not the means to reach them. Allowed to stand, the Third Circuit’s decision would give EPA permission to “micromanage” large swaths of the nation’s land, the newly filed briefs said.

For example, the states said, “EPA could require state and local governments to limit or prohibit the use of fertilizer on agricultural lands, stop production on lands used for agriculture or forestry, halt construction or development, or rezone certain lands altogether. As the Third Circuit acknowledged, there are ‘winners and losers’ under the Chesapeake Bay TMDL.

“That is a given under any regulatory regime, but traditionally it has been the states’ job to balance local costs and benefits and select the most appropriate course of action – not EPA and certainly not federal courts.”

The final Chesapeake Bay TMDL document “sets not just three total maximum daily loads for nitrogen, phosphorus, and sediment in segment (Upper Potomac River Tidal Fresh), but 120 constituent maximum daily loads for that segment,” the petition said.

The states said the result of EPA “acting as a national zoning board” could be devastating, especially in the Mississippi River Basin, which covers more than 1 million square miles and spans 31 states from Canada to the Gulf Coast – 41 percent of the land in the lower 48.

“Agricultural products from the Mississippi River Basin are estimated to be worth $54 billion annually,” they said. “Because farmland makes up the majority of the Basin, the billions of dollars in implementation costs due to source- and sector-specific EPA-mandated load reductions would virtually guarantee that significant tracts of agricultural land would be taken out of production.”

The congressional reps argued for a strict interpretation of the language in the CWA.

“Federal executive branch agencies often refuse to confine their actions to stay within the bounds defined by Congress,” they said in their brief. “Instead, they treat federal statutes as grants of omnibus authority – effectively finding the power to legislate by straining to find ambiguity in even the plainest statutory words, and then claiming their strained interpretation is entitled to deference.”

But Congress “cannot define every word in every statute to foreclose the possibility of expansive interpretations of even the most common words. Requiring Congress to legislate in such a cumbersome manner would be impractical – and quite likely impossible.”

Eleven senators and 81 members of the House of Representatives signed on to the brief. All are Republicans, except for Rep. Collin C. Peterson, D-Minn.

The states filing as amici are Kansas, Indiana, Missouri, Alabama, Arizona, Arkansas, Colorado, Georgia, Kentucky, Michigan, Montana, Nebraska, Nevada, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Texas, Utah, Wisconsin, and Wyoming.

None of the jurisdictions within the Chesapeake Bay watershed – six states and the District of Columbia – sued EPA over the TMDL. In the Third Circuit, Virginia, Maryland, Delaware and Washington, D.C., filed briefs supporting the decision of U.S. District Judge Sylvia Rambo in Pennsylvania, who upheld the TMDL. West Virginia joined a group of 21 states opposing the TMDL.

Although Pennsylvania and New York did not get involved in the Third Circuit proceedings, the cities of Philadelphia, Baltimore and New York all sided with EPA. Five counties in Pennsylvania, two in West Virginia and one in Delaware sided with the Farm Bureau.


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