Agriculture and industry organizations challenging the Environmental Protection Agency’s (EPA) Total Maximum Daily Load (TMDL) for the Chesapeake Bay were dealt a blow by the Third Circuit Court of Appeals July 6.
As part of the settlement of a 2008 Clean Water Act lawsuit by the Chesapeake Bay Foundation in Dec. of 2010, EPA established science-based limits on the pollution fouling the Chesapeake Bay and its rivers and streams (formally known as a Total Maximum Daily Load, or TMDL). In addition, the states developed individual plans on how to achieve those limits and committed to two-year milestones that outline the actions they will take to achieve those limits, and EPA promised consequences for failure. Together, the limits, plans, and milestones make up the Chesapeake Clean Water Blueprint.
“Water pollution in the Chesapeake Bay is a complex problem currently affecting at least 17,000,000 people (with more to come),” wrote Judge Thomas L. Ambro, part of the three-judge panel that heard the appeal, in a 60-page ruling. “Congress made a judgment in the Clean Water Act that the states and the EPA could, working together, best allocate the benefits and burdens of lowering pollution.”
In 2013, Pennsylvania Federal Judge Sylvia Rambo upheld the pollution limits, leading plaintiffs to appeal. In the latest ruling, the appeals court upheld a lower court decision that found EPA’s had acted within the bounds of the Clean Water Act (CWA) in establishing a TMDL for the Chesapeake Bay that required reductions in non-point source pollution from agriculture. Those in the agricultural industry see ruling as undermining statutory exemptions in the CWA for agricultural runoff and could have ramifications far beyond the Chesapeake Bay.
Twenty-one states filed in support of the case brought by the American Farm Bureau Federation, Pennsylvania Farm Bureau, The Fertilizer Institute, National Chicken Council, U.S. Poultry & Egg Assn., National Pork Producers Council, National Corn Growers Assn., National Turkey Federation, and the National Assn. of Home Builders.
Numerous local and national partners intervened in support of the EPA, including the Chesapeake Bay Foundation, Midshore Riverkeeper Conservancy, National Wildlife Federation and others.
“We disagree with the court’s decision that seems to give EPA employees the authority to trump local land use decisions in the watershed,” said Pennsylvania Farm Bureau president Rick Ebert.
Farm Bureau noted that the court decision will not only affect farmers, but also have an adverse impact on local communities and rural economies. EPA itself projects that roughly 20% of cropped land in the Chesapeake Bay Watershed (about 600,000 acres) will have to be removed from food production and be converted to grassland or forest in order to achieve water quality goals.
“Placing one-fifth of the watershed’s fertile farm land into retirement will have a significant impact on local communities and local food systems," Ebert said. "What makes this even more troubling is that more recent study and analysis suggests EPA’s one-size-fits-all approach is largely inefficient in attaining reduction goals, and recommends a more localized effort to best use Pennsylvania taxpayer dollars in reducing nutrient and sediment loss."
PFB also pointed to the shortcomings of EPA’s Chesapeake Bay Watershed Model to accurately reflect what farmers are doing voluntarily to improve water quality.
“The numerous projects and best management practices installed by farmers without the use of federal monies are not always counted towards progress in EPA’s Bay model,” explained Ebert. “Furthermore, cover crops – a growing practice with tangible environmental benefits – are not counted toward meeting water quality goals if the crop is harvested. EPA’s model would rather have the cover crop sprayed dead than see it used as valuable animal feed.”
Farm Bureau continues to work with officials to find a way for farmers to receive full credit for conservation practices that are effectively preventing runoff but not recognized by EPA as an improvement.
Chesapeake Bay Foundation president William Baker said it is now critical that the governors of the Bay states and the EPA administrator exert leadership to fully implement the blueprint. “The U.S. Department of Agriculture must provide additional technical and financial assistance to Pennsylvania in order to accelerate efforts to reduce pollution from agriculture,” he added. CBF has targeted agricultural industries as a much contributor to the Bay’s pollution problems.
The Farm Bureau sad it is carefully analyzing the court’s opinion. The plaintiffs have 90 days to decide whether to appeal to the Supreme Court.