Va. becomes first state to file brief in support of Chesapeake Bay restoration

4/10/2014, 1:34 p.m.

Virginia Attorney General Mark R. Herring has filed an amicus brief to "protect Virginia's efforts to restore the Chesapeake Bay and to defend the right of Virginia and other Bay states to work together to protect and restore the bay".

The brief in American Farm Bureau v. U.S. Environmental Protection Agency was decided in favor of the bay states at the district level and is currently on appeal before the Third Circuit. It lays out the economic, environmental and historic reasons Virginia is compelled to weigh in on the case and the reasons that the long history of cooperation between bay states, like Virginia and Maryland, should be honored. Virginia is the first bay state to defend the bay restoration plan in the case.

The brief also refutes the arguments in the recently filed amicus brief from 21 attorneys general, all but one of whom are from outside the bay watershed. That brief opposed the ability of bay states and the EPA to work cooperatively to address the health of the bay, which is North America's largest estuary and a major economic force for the region, annually contributing an estimated $2 billion and 41,000 jobs from commercial fishing, $1.6 billion and 13,000 jobs in saltwater angling, $70 million in crabs, and $680 million in tourism.

"The Chesapeake Bay is unequaled in its economic impact, environmental significance, and its ability to bring together the states whose rivers and streams flow to its waters," said Herring. "When the most promising plan to protect and restore the bay comes under attack, I am going to stand up for the health of Virginia's families, for Virginia's economic interests, for Virginia's efforts to restore the Chesapeake Bay.

"This case is simply about whether Virginia and the other bay states have the authority to work cooperatively to manage and restore the Bay, as they have done for decades. Each bay state, including Virginia, voluntarily entered into the current bay restoration plan because of the economic, recreational, environmental, and intrinsic value of a healthy Chesapeake bay.

"I hope the courts and my colleagues, none of whom serve a state which touches the Bay, recognize that fact and allow Virginia and its partners to continue their work."

At issue in the case is the EPA's 2010 adoption, under the federal Clean Water Act, of a scientifically-sound "pollution diet," also called a Total Maximum Daily Load (TMDL,) based on watershed management plans developed by the individual states whose waters flow into the Chesapeake Bay. Virginia's brief points out that it is "undisputed that the Bay TMDL details at issue...are creatures of the Bay States' authority," with the states themselves creating and committing to individual plans which were then incorporated by the EPA into the final TMDL blueprint.

Under governors of both parties, Virginia has frequently entered into agreements with other bay states and the EPA to protect the Bay. For example, the administration of Republican Gov. Bob McDonnell worked cooperatively with the EPA to address concerns throughout the process and reach agreement on Virginia's TMDL plan. Thus, the claims in the appeal that the EPA has usurped state authority are simply wrong, Virginia contends. The bay states have long been and continue to be partners with each other and the EPA in protecting the Bay.

The district court upheld the TMDL plan, noting that " that the procedures established to ensure public participation in the TMDL drafting process were sufficient" and "the framework established by the Bay Partnership in developing the bay TMDL is consistent with the provisions of the [Clean Water Act] and [Administrative Procedures Act.]"