AGRICULTURAL groups, led by lead plaintiff the American Farm Bureau Federation (AFBF), filed a brief Jan. 28 asking the U.S. Court of Appeals for the Third Circuit to reverse a September 2013 federal court ruling that upheld the Environmental Protection Agency's total maximum daily load (TMDL) for the Chesapeake Bay watershed.
The court will decide whether EPA exceeded its Clean Water Act authority by mandating how nitrogen, phosphorus and sediment runoff should be allocated among farms, construction and development activities as well as homeowners and towns throughout the 64,000-square mile Chesapeake Bay watershed.
"This case involves whether EPA can assume authority over land use and water quality policy decisions that Congress specifically reserved for state and local levels of government," AFBF president Bob Stallman said. "Last year, the district court ruled that EPA can dictate how and when states and localities must restrict land uses, even to the point of banning development or demanding that specific areas be taken out of agricultural use.
"These are uniquely local decisions that should be made by local governments," Stallman continued. "That is why this power is specifically withheld from EPA in the Clean Water Act."
AFBF is arguing that the Clean Water Act divides authority between EPA and the states, leaving states in the driver's seat to determine how business owners and residents will share the cost and responsibility of achieving clean water goals.
"This case is about whether the (Clean Water Act) authorizes EPA to make such local decisions as: whether particular lands can be farmed or developed and how; the amounts of fertilizer that may be applied to or sediment that may be washed off from particular farms, suburbs, land development projects or city streets, and how to allocate the burdens of achieving water quality goals among municipal sewers, stormwater systems, septic systems, construction and development activities, farming and other sources," the brief says, adding that the Clean Water Act "preserved the states' authority to make these local decisions."
"Farmers, builders, homeowners and towns have made significant changes to protect water quality in the bay, and the results are just starting to come in," Stallman added. "Farmers will continue to do their part to improve water quality, regardless of whether we win or lose this appeal."
Specifically, the brief cites a recent Natural Resources Conservation Service study that found that farmers have widely adopted conservation practices in the watershed, including implementing erosion control practices on about 96% of the 4.4 million acres of cropland in the region.
EPA's own data show that since 1985, the agricultural community has significantly reduced loading to the Chesapeake Bay, cutting nitrogen by more than 27%, phosphorus by more than 21% and sediment by more than 24%.
The brief also claims that EPA did not consider cost or economic impacts — either on individual sources or sectors or in the aggregate — when establishing the Chesapeake Bay TMDL.
"As a result of the bay TMDL, farmland must be taken out of production," the brief notes. "Through the bay TMDL, farming practices themselves become federalized."
AFBF's goal with this litigation is to maintain an important balance of power under the Clean Water Act that leaves states in charge of the land and water resources within their borders, the group said.
Others signing onto the brief include the National Pork Producers Council, National Corn Growers Assn., U.S. Poultry & Egg Assn., The Fertilizer Institute, Pennsylvania Farm Bureau and National Association of Home Builders.