The Supreme Court says the Clean Water Act is not a grant of federal control over every stream and depression in the nation. The Environmental Protection Agency says otherwise.
Pendleton County, West Virginia, is home to 540 farms. The average farm in the county has a net income of around $45,000 a year. On either coast, that’s not an impressive income, but those farms are important to Pendleton County, where the median household income is $30,429.
Arlington County, Virginia, just blocks from the nation’s capital, is one of the richest counties in the nation, with a median household income of $94,876, and a median family income just over $127,000. Two thousand, one hundred employees of the Environmental Protection Agency (EPA) call Arlington County home.
At least some of those EPA employees have been thinking about farms in Pendleton County. The county is in the Chesapeake Bay watershed and, consequently, in the crosshairs of a massive and detailed EPA blueprint to alter the waters of the bay. The plan, an outgrowth of an executive order President Obama signed shortly after taking office, divides the Chesapeake watershed into thousands of small areas and prescribes pollution abatement goals for each of those areas.
These goals, or total maximum daily loads (TMDL), will give EPA total control over land use throughout the six states and the District of Columbia that make up the Chesapeake Watershed. For farmers in Pendleton County, the effects will be immediate and drastic. Or, to quote from a brief the county and several other nearby counties filed in the Third Circuit Court: “It is anticipated that a significant amount of Pendleton county farmland will have to be removed from production due to its proximity to waterways and the resulting impact of the Bay TMDL on local land use.”
Here Come the Federal Puddle Police
The American Farm Bureau filed suit against the EPA, arguing that its Chesapeake Bay plan exceeded the EPA’s authority under the Clean Water Act (CWA). The Third District Court found against AFB, and the case has been appealed to the Supreme Court. If the highest court in the land agrees to hear the appeal, they’ll surely do so with more than a little frustration, as environmental agencies have lost three times in similar Supreme Court cases since 2001. The highest court has consistently reminded the agencies that the Clean Water Act is not a grant of federal control over every stream and depression in the nation.
In direct contradiction to the plain language of the CWA, the EPA blueprint envisions almost no role for the states involved, setting pollution limits for thousands of individual areas in the watershed. According to the plaintiffs: “As a practical matter, the power to set numeric limits for sediment and nutrients by source type within specific geographic areas equals nothing short of the power to allow farming here, but not there, building here, but not there.”
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