HARRISBURG — Pennsylvania and national farm groups on Thursday asked a federal judge to halt the key strategy for cleaning up the Chesapeake Bay, accusing the U.S. Environmental Protection Agency of unlawfully strong-arming six bay states, farmers, towns and homeowners into cleanups that will cost billions and control land-use decisions.
"The states didn't want to do it. EPA doesn't have the authority to lock them in," said attorney Richard Schwartz, representing the Pennsylvania Farm Bureau, American Farm Bureau Federation, a national homebuilders group and six livestock and fertilizer companies that had sued EPA.
The groups had their day in court before U.S. District Judge Sylvia Rambo.
EPA, joined by the Chesapeake Bay Foundation, Citizens for Pennsylvania's Future, National Wildlife Federation, a West Virginia public service district and a Maryland Riverkeeper Conservancy, rejected the charge.
They said the current Chesapeake Bay compact between states and EPA is a prime example of "cooperative federalism."
At issue is a cap on the amount of sediment and nutrients that can enter each watershed in the 64,000-square-mile bay watershed.
That cap, set by the EPA in late 2010, is officially called the Total Maximum Daily Load and commonly referred to as a "pollution diet."
Each state has TMDL caps, and the states each have come up with plans to reach those pollution limits. The plans must be filed by 2025 or the states will face punishments by the EPA.
The regulations will affect farmers, municipalities with sewage-treatment plants, as well as towns and homeowners over stormwater runoff controls.
In the last two years, farmers in three Lancaster County communities have been the target of EPA crackdowns on required state plans to control manure and soil runoff.
In their lawsuit, the farming groups claim that in creating the Clean Water Act in 1972, Congress stipulated that the law would "recognize, preserve and protect" the rights of states in dealing with water-quality issues.
The lawsuit also alleges that the computer models that EPA used to set pollution limits in each state were flawed in miscalculating conservation measures already made by farmers, causing wrong assumptions.
Lastly, EPA did not allow adequate review by the public of how it came up with TMDL caps, the lawsuit says.
"EPA is going places Congress never intended," Schwartz told Rambo. "These decisions are economic and social. They intrude on land-use decisions ... how ag land is to be used and if a landowner can timber his land."
In contrast, several attorneys representing the EPA and its defenders described a multiyear "transparent, open process" in which states and the EPA jointly arrived at a workable strategy for cleanup of the bay after 27 years of failed voluntary attempts by the bay states.
The Clean Water Act indeed gives states "first crack" at attaining clean water quality. But if the effort bogs down, the law allows the EPA to step in, said Kent Hanson, a U.S. Justice Department attorney who represented EPA.
"No one walked away from this process. There were disagreements. But you don't see any challenges from the states on TMDL," Hanson told Rambo.
"This was a remarkable process of cooperation, of evaluation."
As for the accuracy of computer models used to determine the amount of pollution coming from various sources, Hanson said the projects were — and still are — constantly revised. Two peer reviews approved the models, he said.
"There were no secrets here," he said.
Said Jon Mueller, an attorney for the Chesapeake Bay Foundation, of the TMDL unfolding across the bay states today, "This was not top-down, heavy-handed, but a cooperative federalism."
Rambo said she would announce her ruling in the case at a later date. Both sides expect the case to be appealed.
"We're very confident that the judge will rule to keep what everybody has agreed to after 30 years," said William C. Baker, president of the Chesapeake Bay Foundation.
But what if TMDL is overturned?
"It could set bay restoration efforts back decades," CBF spokesman John Surrick said.
