Counties Fight 'Bay Diet'

Counties attack EPA’s TMDL regulation

Counties in Pennsylvania, New York and Virginia have filed a friend of the court brief (Amicus Curiae) in the TMDL case between the American Farm Bureau Federation v EPA.

Seventeen county governments in these three states spell out why they oppose EPA’s attempt to control non-point source pollution which migrates into the Chesapeake Bay.
The counties believe EPA is usurping local governments’ traditional authority to make local land-use decisions. They tell the U.S. Supreme Court that EPA is ordering “…States and counties how to allocate their respective shares of those total [pollutant] loads among different point and non-point sources [farms] across different water segments in their jurisdictions.” They also allege the Third Circuit court decision supporting EPA “…authorizes a massive transfer of power from local elected official to an unelected federal bureaucracy in Washington, D.C.”

The brief provides background on Fauquier County, Virginia. The Fauquier Farm Bureau is one of fifty Virginia farm bureaus. The brief declares Fauquier’s farmers will be uniquely harmed by EPA’s TMDL regulation. EPA “…will require Fauquier County producers to undertake unnecessary and especially costly measures to meet the TMDL’s draconian mandates targeting farmers, and – with respect to the entire Bay – push hundreds of thousands of acres of farmland out of production.”

The brief claims 20% of cropland in the watershed or approximately 600,000 acres will have to be converted to grassland or forest to achieve EPA’s required TMDLs. (Not once is it mentioned in the brief that Section 319 of the Clean Water Act (CWA) provides protection to non-point source dischargers such as farmers.) The brief goes on to describe the U.S. District Court’s opinion in Pennsylvania as authorizing “…nothing short of a federal government take-over of land use decision-making in the 64,000–square mile Chesapeake Bay that is home to 17 million people.”

The counties claim that “States and counties are forced to curtail or even prohibit certain land uses in order to achieve the reductions mandated by… [EPA’s] TMDL.” Further it is alleged EPA will dictate “…which lands may be used for farming or development, which other lands must be ‘retired’ out of productive use…how much fertilizer a farmer may apply to his working lands,…” (This is coming to the Midwest if EPA wins.)

Congress specifically exempted agricultural stormwater discharges and irrigation return flows  from permit requirements. The EPA is desperate to make few farmers pay the bill for cleaning the Bay, rather than the millions of voters in the urban areas.