Chesapeake EPA challenge denied, WOTUS up next

From Dennis Albiani, legislative advocate, California Association of Nurseries and Garden Centers:

The U.S. Supreme Court has denied a petition by the American Farm Bureau Federation (AFBF) to review EPA's controversial Chesapeake Bay watershed pollution control plan, leaving in place a lower court order affirming the agency's authority to set runoff controls for the 64,000-square-mile watershed.

In related agriculture actions against EPA, a coalition of agriculture and manufacturing groups formally asked the 6th District Court of Appeals to revisit its decision that the federal appeals court is the appropriate venue for hearing the multitude of cases filed against the agency's "waters of the U.S. (WOTUS)" rulemaking.

The high court's refusal to hear the AFBF challenge to the Chesapeake Bay pollution control program means seven states in the bay's watershed must impose tough standards on nitrogen and phosphorus runoff.  The cost of compliance for the seven states - New York, Pennsylvania, Maryland, Virginia, West Virginia and Delaware - will be in the billions, AFBF said in its court petition.

The EPA program was challenged last November, with AFBF asking the Supreme Court to determine whether the agency has the authority under the Clean Water Act (CWA) to set and enforce total maximum daily load (TMDL) nutrient standards for the Bay.  Part of the concern is not only the degree of the TMDL standards, but that the Chesapeake program could be used as a model for other watershed actions by EPA.  In fact, the lower court ruling upholding agency authority said EPA's action was no different than when it sets thousands of TMDLs across the country.

In the WOTUS legal wrangling, the ag groups are asking the three-judge appeals court panel to revisit its odd 1-1-1 February 22 ruling that it is the appropriate venue to hear WOTUS challenges.  The industry argued the actions should first be heard in federal district courts and then move to the appellate level. 

Said AFBF and the National Association of Manufacturers (NAM): "The court's decision raises more questions than it answers. This case cries out for en banc review.  There is a 'circuit split,' the question presented is 'an important federal question,' and a 'number of judges on the court' have come to the validity of its own precedent." The two industry groups also said the review is necessary because there is a strong chance the ruling could be overturned.

If the court decides to revisit its decision, it will be months before final action.