The Environmental Protection Agency’s Total Maximum Daily Load regulation (TMDL) for the Chesapeake Bay watershed establishes new controls on land use that trespass into territory Congress legally reserved for state governments, according to the opening brief for summary judgment, filed Friday, Jan. 27 by the American Farm Bureau Federation in the case, “AFBF vs. EPA.” ...It should be no secret to any regular reader of my blog (all three of you, optimistically), that farmers feel that the "Bay Diet" plans being formulated to help clean the Chesapeake Bat falls unfairly on their shoulders. They have a reasonable chance of showing that the modelling is inaccurate (models are always wrong, the only question is by how much and in what direction), but whether that would prevent implementation is unknown to me. The procedural argument, that EPA's actions are not authorized by the Clean Water is relatively new to me; maybe it's been out there, but not much discussed in the Bay centric articles that I have seen.
“It imposes detailed pollutant ‘allocations’ among sources throughout the Bay’s vast watershed,” the brief charged. “These mandatory allocations of allowable pollutant loading among farms, towns, and homeowners amount to nothing short of a federal TMDL implementation plan. This plan directly encroaches on state authority over land and water quality planning – not only in states bordering the Bay, but in states hundreds of miles away. EPA’s action is not authorized under the (Clean Water) Act.”
The brief also charges that the EPA’s TMDL is based on flawed technical analysis and computer models that have proved to be fundamentally unworkable, and not appropriate as a basis for any regulatory program.
“(EPA) used those models for purposes beyond their predictive capabilities and relied on key assumptions that are demonstrably false,” the brief stated. “Those modeling defects are fatal, even if EPA had the authority (which it does not) for the Final TMDL.”
A major economic study has also indicated that enforcement of the EPA’s Bay plan would be expensive – a fact magnified by the nation’s current fiscal challenges. In 2004, a “Blue Ribbon Panel” report estimated that achieving water quality standards for the Bay would cost $28 billion in total upfront capital costs, plus $2.7 billion in subsequent annual costs.
It will be interesting to see how this works it's way through the courts.