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Attorney General Herring files amicus brief to support cleanup efforts in American Farm Bureau v. U.S. Environmental Protection Agency

RICHMOND–Attorney General Mark R. Herring today announced that he 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 Agencywhich was decided in favor of the Bay states at the district level and is currently on appeal before the Third Circuit, 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 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 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 Attorney General 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.  As Virginia’s brief points out, 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 Governor 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; 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.]”

Additionally, the brief explains that this issue has absolutely no bearing on states outside the Chesapeake Bay watershed and that the appeal should not be heard at this time because the claims of infringement on state authority are mere hypothetical possibilities. There is currently no dispute between Virginia or other Bay states and the EPA with respect to the final TMDL blueprint.

Herring’s action was applauded by conservation organizations, clean water advocates, and Virginians in the Bay aquaculture and tourism industries.

“The Chesapeake Bay Foundation (CBF) roundly applauds Attorney General Herring for supporting federal-state Chesapeake Bay pollution limits and Virginia’s Bay restoration plan,” said Chesapeake Bay Foundation President William C. Baker. “Virginia has long been a full and active Bay restoration partner and was at the table to help craft the Blueprint, a cooperative, federal-state plan that has been called the Bay’s best, and perhaps last, chance for restoration.  The Commonwealth and her citizens clearly have much to gain from a healthy Chesapeake Bay, and much to lose should Bay restoration be thwarted. It is deeply gratifying that Virginia will stand with CBF, other regional states, and numerous localities in defending clean water, a restored Bay, and healthy rivers and streams.”

“Over the last forty years I’ve witnessed a tremendous amount of change in agribusiness and the seafood business,” said Tom Walker, President of JC Walker Brothers Seafood and a row-farmer on the Eastern Shore. “On a daily basis, being involved in the aquaculture industry operating a shellfish hatchery, we experience with our hands and eyes and actually feel the connection between agribusiness and the waterway. It’s very sensitive and it’s very real. This is a wonderful initiative that addresses the public trust and it’s a long-term decision that will do nothing but benefit, I think equitably, all the parties that will participate in the future of cleaning up the Bay. It will certainly complement and reward the many citizens of the Commonwealth that have already stepped forward through point-source reductions to clean up the Bay.”

“I am excited to stand with Attorney General Herring as he makes this significant announcement,” said Virginia League of Conservation Voters Interim Executive Director Emily Francis. “After three decades of collaboration among Bay states and the District of Columbia, our sights are set squarely on accomplishing the task-we can restore the Chesapeake Bay by 2025. If the energy and resources spent on attempts to derail the Bay cleanup plan were instead spent on reducing pollution, we’d be much closer to having a restored Bay.”

“We are glad to see Virginia’s leadership in defending the Chesapeake Bay cleanup process,” said Bill Street, CEO of the James River Association and steering committee member of the Choose Clean Water Coalition, a coalition of more than 200 clean water advocates in the Chesapeake region. “It is imperative that the Court upholds their ruling so that Virginia and the other Chesapeake Bay states can continue their critical efforts to clean up our local waters. We are proud that Virginia is standing up to support clean water.”

“Watermen are more economically dependent on the state and the health of the Chesapeake Bay than any other sector in our state. Their entire livelihood is at risk when the Bay is not healthy,” said Paula Jasinski, President of Chesapeake Environmental Communications, who recently launched the Virginia Waterman Ecotourism Program to train watermen to conduct eco-tours around the Bay. “Watermen want to participate in this program and this new thriving industry, but they need clean water and a clean Bay. People don’t want to come visit a Chesapeake Bay that is polluted.”

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