The American Farm Bureau Federation (AFBF) has asked the U.S. Supreme Court to hear a challenge to a lower court’s decision to allow the Environmental Protection Agency (EPA) to regulate land use and development decisions within the Chesapeake Bay watershed under the Clean Water Act (CWA).
At issue in American Farm Bureau Federation v. U.S. Environmental Protection Agency is EPA’s Chesapeake Blueprint, a plan to regulate the runoff of phosphorous, nitrogen, and sediment into the Chesapeake Bay. EPA claims it has authority over the entire watershed, which includes land in Delaware, Maryland, New York, Pennsylvania, Virginia, West Virginia, and the District of Columbia.
Courts and government agencies have historically recognized under CWA state and local governments should supervise water and land-use decisions to ensure local needs are met at the same time federal water quality goals are achieved.
“This is EPA’s latest regulatory land grab,” said Timothy Bishop of Mayer Brown, LLP, who is representing AFBF.
The blueprint divides the watershed into 92 subsections and sets total daily maximum load (TMDL) allocations. EPA then sets specific limits for the amount of nitrogen, phosphorus, and sediment that can run off into the watershed from those areas from sources such as agriculture, urban runoff, forestry, and septic systems.
‘You Can’t Farm Here’
“As a practical matter, this new power allows EPA to be able to say to a farmer, ‘You can farm here, but not there,'” Bishop said. “State and local governments will first be required to act as the enforcer for these limits, but if they don’t meet EPA’s strict timetables, EPA will step in.”
EPA’s Chesapeake Blueprint states the agency will take action, such as cutting federal funding for various programs, if a jurisdiction fails to enforce its new requirements.
“This federal overreach threatens devastating harm to local farmers and rural communities,” said Ellen Steen, AFBF’s general counsel. “The Clean Water Act gives the power to regulate runoff to the states. This plan will strangle local farmers out of business, which is all the more unfair considering the tremendous strides farmers have made in adopting sustainable practices.”
“Despite these improvements, the blueprint calls for dramatic further reductions from agriculture, on a compressed timeline, without regard to feasibility or cost,” Bishop said. “It does not allow states and localities the flexibility to take local human and social impacts into account.”
Pendleton County, West Virginia was one of eight counties filing a brief challenging the plan in the Third U.S. Circuit Court of Appeals in Philadelphia. As part of that brief, attorneys representing Pendleton County explained over 38 percent of the county is farmland, with 540 family farms making up a significant portion of the economic base in the rural, economically depressed area.
Under EPA’s Chesapeake Blueprint, “A significant amount of Pendleton county farmland will have to be removed from production due to its proximity to waterways and the resulting impact on the Bay TMDL … Pendleton County has a very limited industrial base,” according to Counties’ brief. “Consequently, people who would be displaced from farming would have little to no opportunity to replace their loss.”
Model for Nationwide Zoning
Bishop says if EPA’s Chesapeake Blueprint is upheld by the courts, it could serve as a model for a federal regulatory takeover of local planning decisions in other watersheds around the nation.
“If the Supreme Court doesn’t agree to hear this case, they’re allowing for a dramatic expansion of federal power that could put farmers across the country out of business,” said Bishop.
Ninety-two members of Congress, 22 states, and numerous forestry groups filed friend-of-the-court briefs asking the U.S. Supreme Court to hear AFBF’s case. Business organizations, including the U.S. Chamber of Commerce, National Association of Manufacturers, and the National Federation of Independent Business—groups that often favor uniform federal standards over complying with myriad local regulations—also filed friend-of-the-court briefs supporting AFBF’s request.
The briefs universally object to EPA’s assertion of regulatory power over land-use decisions within watersheds, and they support state and local authorities’ objections to the plan.
H. Sterling Burnett, Ph.D. ([email protected]) is a research fellow with The Heartland Institute.