Earlier this month, 21 states and a group of 8 counties filed amicus briefs with the US Court of Appeals for the Third Circuit supporting the American Farm Bureau Federation (AFBF) and other agricultural groups challenging USEPA’s December 2010 total maximum daily load (TMDL) for the Chesapeake Bay.

At issue is the September 13, 2013 opinion of District Judge Sylvia H. Rambo in American Farm Bureau Federation, et al. v. USEPA, which upheld USEPA’s decision to set waste load allocations (WLAs) for permitted point sources as well as load allocations (LAs) for non-point sources, such as agricultural runoff, in the final Chesapeake Bay TMDL.  The ruling endorsed USEPA’s final TMDL as a “holistic, watershed approach” aimed at “attaining a full and fair contribution by all major source sectors and coordinated participation of all states in the watershed.”  In reaching this decision and responding to arguments that the final TMDL impermissibly usurped state implementation authority under the Clean Water Act, the Court found it “noteworthy that no state has filed suit challenging the TMDL.”

In response, 21 states, including West Virginia, which is subject to the final Chesapeake Bay TMDL, have now joined the appellants in arguing that USEPA has unlawfully “strip[ped] States of their traditional right to decide how to achieve federal water quality requirements.”  The amici also contend that USEPA’s imposition of the Chesapeake Bay TMDL on upstream states and the decision to set sector-specific allocations for non-point sources threatens states’ traditional authority over land-use management decisions across the country, citing to the more than 30 upstream states in the Mississippi River Basin.  The amicus brief of eight Pennsylvania, West Virginia and Delaware counties further endorses this view by outlining the potential impacts of the Chesapeake Bay TMDL on the agricultural activities that support their largely rural communities.

Following the filing of the amicus briefs, Maryland Governor Martin O’Malley issued a press release announcing that Maryland, which is also in the Chesapeake Bay Watershed and subject to the final TMDL, would be submitting an amicus brief to the Third Circuit in defense of USEPA’s position.  Governor O’Malley also called on other states subject to the final Chesapeake Bay TMDL (Virginia, Delaware, Pennsylvania, New York, New Jersey and the District of Columbia) to join Maryland in supporting USEPA’s efforts, saying that “it is imperative that we continue our efforts to ensure that our nation’s largest estuary, a true national treasure, will be protected for future generations.”

The Third Circuit’s ruling is expected to be of great precedential import for USEPA’s TMDL process, both in terms of the states’ role in implementing water quality standards under the Clean Water Act and with regard to deciding the extent to which USEPA can hold non-point sources accountable for the nutrient pollution issues currently facing communities across the country.  USEPA’s response brief is due on April 2, 2014, and environmental and public interest group intervenors supportive of the final TMDL have until April 21, 2014 to file their amicus briefs.