Lawsuit by Farm Bureau and Others Against EPA Over Chesapeake Bay TMDL in Federal Appeals Court as of April 2014; Virginia Attorney General Brief in Support of EPA Filed April 10, 2014

As of April 18, 2014, the lawsuit by the American Farm Bureau, the National Home Builders Association, and other organizations against the U.S. EPA over the Chesapeake Bay Total Maximum Daily Load (TMDL) pollution-reduction plan (issued by the EPA in December 2010) remained under consideration by the federal Court of Appeals for the 3rd Circuit, located in Philadelphia.  The case is American Farm Bureau v. U.S. Environmental Protection Agency; case number 13-4079.

The Farm Bureau and the other plaintiffs in the lawsuit—first filed in January 2011—are appealing the September 13, 2013, ruling in favor of the EPA by Judge Sylvia H. Rambo in the federal district court in Harrisburg, Pennsylvania.  The lawsuit alleges that the EPA exceeded its authority at the expense of state authority, used inaccurate or inadequate scientific information, and followed too short a regulatory timetable in developing the TMDL.  Judge Rambo upheld both the process and substance of the EPA’s actions.

On April 10, 2014, Virginia Attorney General Mark Herring announced that the Commonwealth had filed a brief supporting the EPA.  On February 3, 2014, 21 state attorneys general, including the attorney general in Bay-watershed state West Virginia, and eight Bay-watershed counties joined the case in support of the Farm Bureau and other plaintiffs.  Several of those states are in the Mississippi River drainage, and part of their concern is that approval of the EPA process in the Chesapeake Bay may lead the agency to seek a TMDL for the impacts of the Mississippi basin on the Gulf of Mexico.

Sources: Virginia Files Amicus Brief In Support Of Chesapeake Bay Restoration, Virginia Attorney General’s Office News Release, 4/10/14; and 21 states, 8 counties join Farm Bureau challenge to Bay TMDL, Bay Journal, 2/5/14.

For a previous News Grouper item on the District Court’s ruling in September 2013, please see Chesapeake Bay TMDL Upheld in Lawsuit Against U.S. EPA in Federal District Court in Pennsylvania; Ruling Issued 9-13-13, posted 9/17/13.

Other news accounts about the lawsuit: Fight Over Chesapeake Bay Clean-Up, WVTF (Blacksburg Va.) IQ Radio, 2/5/14; Wicomico [County, Md.] Joins Effort to Modify EPA Chesapeake Cleanup Plan, Delmarva Public Radio, 2/24/14; Lancaster County [Penn.] joins fight against EPA in setting pollution limits for farmers, Lancaster (Pa.) Online, 2/4/14.

Virginia Water-related Government Meetings for Apr. 21–May 5, 2014

For more information, click on underlined meeting dates.  Click here for the Commonwealth Calendar listing of all government meetings open to the public, and here for the Virginia Regulatory Town Hall listing of all government meetings of a regulatory nature.

For other, non-governmental, events, please see the Water Central News Grouper post, Quick Guide to Virginia Water-related Events.


4/21/14, 1:30 p.m.: Nuclear Energy Consortium Authority Board.  At theVirginia Commonwealth University East Engineering Hall, Room E3229, 401 W Main Street in Richmond.

4/22/14, 9:30 a.m.: Marine Resources Commission.  At 2600 Washington Avenue in Newport News.

4/22/14, 11 a.m.: Virginia Outdoors Foundation.  At Montpelier (Jefferson estate) near Charlottesville.

4/23/14, 10:00 a.m.: Advisory Board on Air Pollution.  At the Department of Environmental Quality (DEQ) Piedmont Regional Office, 4949-A Cox Road in Glen Allen.

4/24/14, 9:30 a.m.: Soil and Water Conservation Board.  At the DEQ Piedmont Regional Office, 4949-A Cox Road in Glen Allen.

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4/23/14, noon: Virginia General Assembly’s reconvened (“veto) session to consider vetoes and amendments by the governor to legislation passed in the 2014 regular session.

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For more information about TMDLs in Virginia, click here for the Virginia Department of Environmental Quality TMDL Web site.  A search tool to find approved TMDL reports is available at

None during this period.

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(topics listed alphabetically)

4/22/14, 10 a.m.: Department of Mines, Minerals and Energy (DMME) Informal Hearing on Notice of Violation JDR0006264 for Norton Coal Company.  At the Wellmore Energy Company in Grundy.  The mine site is located off Big Butt Branch of Knox Creek in Buchanan County.

River Basin Advisory Committees
4/21/14, 10 a.m.: Roanoke River Basin Advisory Committee [includes representatives from Virginia only].  At the Charles R. Hawkins Research Center, 230 Slayton Avenue in Danville.

4/21/14, 1 p.m.: Roanoke River Bi-state Advisory Committee [includes representatives from Virginia and North Carolina].  At the Charles R. Hawkins Research Center, 230 Slayton Avenue in Danville.

4/30/14, 10 a.m.: Stormwater Best Management Practices Clearinghouse Committee.  At the U.S. Geological Survey (USGS) Virginia Water Science Center, 1730 East Parham Road in Richmond.  The Stormwater Best Management Practices (BMPs) Clearinghouse is a Web site on design standards and specifications of stormwater BMPs in Virginia.  The Clearinghouse Committee advises the Department of Environmental Quality (DEQ) and the State Water Control Board.  More information about the Stormwater BMP Clearinghouse Committee is available at  The DEQ’s Web page for the Virginia Stormwater Management Program is

Clarifying Clean Water Act Jurisdiction and the “Waters of the United States” is Intent of Proposed Regulation Announced March 25, 2014, by U.S. EPA and Army Corps of Engineers

On March 25, 2014, the U.S. Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers announced a proposed rule that seeks to clarify what water bodies “waters of the United States” and therefore fall under the jurisdiction of the federal Clean Water Act (CWA).

The 371-page proposed rule follows U.S. Supreme Court decisions in 2001 (in Solid Waste Agency of Northern Cook County [Illinois] v. United States Army Corps of Engineers et al.; click here forPDF of decision) that eliminated migratory-bird use as a sufficient stand-alone factor for isolated waters to fall under CWA jurisdiction; and in 2006 (Rapanos v. U.S. and Carabell v. U.S.; click here for PDF of decision), in which the High Court issued three different interpretations of how to determine CWA jurisdiction.  The proposed rule (p. 2) states that these decisions “resulted in the agencies evaluating the jurisdiction of waters on a case-specific basis are more frequently than is best for clear and efficient implementation of the CWA.”

Following are two excerpts from the proposed rule that identify some key parts features: [From pages 3-4] “The agencies propose to define ‘waters of the United States’ …for all sections of the CWA to mean [the following]: traditional navigable waters; interstate waters, including interstate wetlands; the territorial seas; impoundments of traditional navigable waters, interstate waters, including interstate wetlands, the territorial seas, and tributaries, as defined, of such waters; tributaries, as defined, of traditional navigable waters, interstate waters, or the territorial seas; and adjacent waters, including adjacent wetlands. Waters in these categories would be jurisdictional ‘waters of the United States’ by rule—no additional analysis would be required.  In addition, the agencies propose that ‘other waters’ (those not fitting in any of the above categories) couldbedetermined to be ‘waters of the United States’through a case-specific showing that, either alone or in combination with similarly situated ‘other waters’in the region, they have a ‘significant nexus’ [this term was used by the Supreme Court in its 2001 and 2006 decisions] to a traditional navigable water, interstate water,or the territorial seas.  The rule would also offer a definition of significant nexus and explain how similarly situated ‘other waters’ in the region should be identified. … [From page 19] “Waters in a watershed in which there is no connection to a traditional navigable water, interstate water or the territorial seas would not be ‘waters of the United States.’  In addition, the proposed rule would for the first time explicitly exclude some features and waters over which the agencies have not generally asserted jurisdiction and in so doing would eliminate the authority of the agencies to determine in case specific circumstances that some such waters are jurisdictional ‘waters of the United States.’”

The proposed rule will undergo a 60-day public-comment period following its publication in the Federal Register.

A 1.5-hour seminar (targeted to attorneys) on the proposed rule will be held by Environmental Law Institute (ELI) in Washington, D.C., on May 22.  The seminar is also available via telecast.  For more details, including pricing and registration information, please visit; or send e-mail to

EPA and Army Corps of Engineers Clarify Protection for Nation’s Streams and Wetlands: Agriculture’s Exemptions and Exclusions from Clean Water Act Expanded by Proposal, U.S. EPA News Release, 3/25/14.

EPA information about the proposed regulation, online at and

News articles on the proposed rule:
115 Small Business Owners, Congressman Jim Moran, Environment Virginia Join EPA To Support Protecting Virginia’s Waterways,, 4/15/14.
EPA proposes greater protections for streams, wetlands under Clean Water Act, Washington Post, 3/25/14.

Rapanos cartoon

Cartoon by George Wills of Blacksburg, Va. (, that accompanied an article on the January 2007 Virginia Water Central (the newsletter of the Virginia Water Resources Research Center). In thgat article, a Virginia Tech faculty member reviewed and offered his viewpoints on the U.S. Supreme Court’s 2006 Rapanos decision and on Clean Water Act jurisdiction generally. The article includes basic facts of the case and other background information. The newsletter is available online (as a PDF) at; the article starts on page 1.

Water in the “Critical Zone” is Focus of the 4th Biennial Colloquium on Hydrologic Science and Engineering, to be Held Jul. 28-30, 2014, in Shepherdstown, W. Va.

The integration of hydrological, ecological, and geological information necessary to advance science on the “critical zone” is the focus of “Water Across the Critical Zone–Scaling from Local to Global Hydrology,” the Fourth Biennial Colloquium on Hydrologic Science and Engineering, Jul. 28-30, 2014, at the National Conservation Training Center in Shepherdstown, West Virginia.  The critical zone is the area near the land surface where interactions occur among rocks, soil, water, the atmosphere, and organisms.  The July meeting is organized by the Consortium of Universities for the Advancement of Hydrologic Science, Inc. (CUAHSI).  Click here for more information; or contact Emily Geosling, CUAHSI, 196 Boston Ave, Suite 3000, Medford, MA 02155; phone (339) 221-5400, ext. 204; e-mail:

For information on the the critical zone and its importance as an area of research, see Basic Research Opportunities in Earth Science, National Research Council (2001), online at (as of 4/17/14).

West Virginia Chemical Spill on Jan. 9, 2014 – April 16 PBS Update Includes Discussion of New West Virginia Chemical-storage Law

On April 16, 2014, the PBS NewsHour broadcast an update on the January 2014 chemical spill into the Elk River near Charleston, West Virginia.  The segment includes the following:
*review of the basic facts of the spill;

*discussion of a law passed in 2014 by the West Virginia legislature, Senate Bill 373, which creates the “Above-ground Storage Tank Water Resources Protection Act” authorizing various actions related to chemical-storage tanks and protection of water resources (for a news account of the bill, see Tomblin Signs Storage Tank Bill, Charleston Gazette, 4/1/14);

*discussion of a long, detailed article published April 7, 2014, in The New Yorker magazine (Chemical Valley: The coal industry, the politicians, and the big spill) on the historic role of the chemical and coal industries in West Virginia’s economy and politics.

The 10 min./19 sec. PBS video is available at this link:

Virginia Precipitation and Stream Flow for the 7-day Period Ending April 15, 2014

Below are images showing precipitation in the southeastern United States and stream flow in Virginia over the seven-day period ending April 15, 2014.  The Virginia Water Resources Research Center thanks the agencies mentioned below for providing precipitation and stream-flow information and images.

The following maps, from the National Oceanic and Atmospheric Administration’s (NOAA) Southeast Regional Climate Center, located at the University of North Carolina in Chapel Hill (, accessed 4/16/14), show southeastern U.S. precipitation amounts over the past seven days (top map), and the percent of normal precipitation for the given location at this time of year (bottom map).   As of 4/16/14, these data remain provisional.

Precip April 15

Precip percentage April 15

For another precipitation-information source: The National Weather Service’s Advanced Hydrologic Prediction Service,, provides maps showingprecipitation nationwide or by state for specific days, months, or years.  The site also has the capability to show county boundaries.

Stream Flow
The map below, from the U.S. Geological Survey WaterWatch for Virginia (online at, accessed 4/16/14), compares the previous week’s average stream flows—at about 140 stream-gaging stations in Virginia and just beyond the state border—to the normal flow levels for that week over the historical record for each gaging station.  The color codes/percentile classes used by USGS to compared flows to historical records for the month are as follows:

Red and maroon dots: Below 10th percentile = much below normal to record low;
Yellow dots: 10th to 24th percentile = below normal;
Green dots: 25th to 75th percentile = normal;
Light blue dots: 76th to 90th percentile = above normal;
Dark blue and black dots: Above 90th percentile = much above normal to record high.
KEEP Stream Flow Color Code
Streams April 15

On Virginia Water Radio for 4-14-14: Music for the Blue Ridge and the Waterways it Generates

This week, Virginia Water Radio features inspired by streams and rivers rolling down from the Blue Ridge.  Click here to have a listen! (3 min/23 sec)


Virginia Water Radio, online at, is the Virginia Water Resources Research Center’s weekly podcast using sounds and music to focus on issues, events, people, and creatures connected to Virginia’s waters.