AFBF v. Environmental Protection Agency (United States Court of Appeals for the Third Circuit; Case No. 13-4079). Remember this case. Your future may depend on this case.

Judge Sylvia Rambo, in September, 2013, found in a court decision that EPA could set Total Maximum Daily Loads on how many pounds of nutrients can run off property into waters of a state. I have written about her opinion before.

Judge Rambo says EPA can impose caps on nitrogen, phosphorus, and sediment loadings for every waterway which brings water from the entire 64,000-sq. mile Chesapeake Bay watershed.

Judge Rambo's decision, now on appeal, will affect every farmer in the Bay watershed. If this case is lost by the American Farm Bureau Federation, EPA will most certainly attempt to limit nitrogen, phosphorus, and sediment running into the Mississippi River Basin.

In the next several blogs I will examine in detail this enormously important case. AFBF, along with the National Corn Growers, National Pork Producers, The Fertilizer Institute, and the U.S. Poultry and Egg Association, are defending your interests.

 

Simply explained, EPA is attempting to establish TMDLs for every water body in the Bay watershed. Second, EPA seeks to require each state to provide "reasonable assurance" that each stream has limits to be attained. Finally, EPA wants to require the states to set deadlines to put control measures and practices into place which will limit the amount of nitrogen, phosphorus and sediment running into the Bay.

The AFBF brief generally describes briefly what farmers are doing in the Chesapeake Bay Area by describing more efficient use of fertilizer, using cover crops, soil stabilization, and building buffer zones on farms to reduce nutrient runoff.

AFBF also quotes general numbers including the assertion that 96% of the crop land acres in the Bay watershed have implemented some type of erosion control practice.

EPA's data is cited, which claims, since 1985, nitrogen pounds have been reduced by 27%, phosphorus pounds by 21%, and sediment pounds by 24%. If USDA's numbers are correct, these EPA reduction numbers appear puny.  The lower court judge apparently agreed as do the environmentalists who paint a detailed inaccurate and terrible picture of the damage agriculture does to the Bay.

Setting limits
EPA's modeling claims set limits on each stream in the watershed to allow 185.9 million pounds of nitrogen, 12.5 million pounds of phosphorus, and 6.45 billion pounds of sediment annually to flow into the Bay.

There are seven watershed jurisdictions in the Bay watershed. The seven jurisdictions have outlined plans to reduce nitrogen, phosphorus and sediment. These plans require that all pollution control measures be in place by 2025. EPA also requires that 60% of the control measures be in place by 2017.

EPA claims it has the last word on how the farmer uses his/her land and believes it can "dictate" how much nitrogen, phosphorus and sediment can "...come from a particular parcel of land anywhere in the Chesapeake Bay watershed even if achieving that limit is possible only by ceasing the agricultural use or banning development." This is a quote from the AFBF brief!

Simply put, EPA for the first time in American history, will be able to say to a farmer that he must take his land out of production. In fact, according to the AFBF brief, the state of New York claimed "reliance on source reductions means that farms will go out of business in order for New York to meet its proposed allocations." EPA is simply going to federalize agricultural practices.

It is hard to believe a federal agency is claiming the last word on land use, but it is. Under the guise of protecting water, EPA can destroy American agriculture.

Gary H. Baise is a principal at OFW Law (Olsson Frank Weeda Terman Matz P.C.). This article first appeared in Farm Futures magazine. The opinions presented here are expressly those of the author. For more information, go to www.OFWlaw.com.