Baise: A legal case that could destroy American agriculture

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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.


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W.E. Guy, Jr    
Stuart, FL 34997  |  May, 19, 2014 at 11:19 PM

Why shouldn't farmers be subject to the same discharge rules the rest of us law abiding citizens are?

BB    
CO  |  May, 20, 2014 at 09:26 AM

Because the rules are stupid?

Wm F. Tooley    
South Dakota  |  May, 20, 2014 at 10:51 AM

Mr. Baise, Your astute legal analysis and clear explanations are greatly appreciated. However your technology awareness may need some updating - especially as regards environmental alternatives in farming today. Using the latest precision nutrient management technologies, no farmer will have any trouble meeting proposed EPA guidelines - and making more profits on the farm by doing so! Past nutrient management practices have been wasteful and expensive - to say nothing of their environmental impacts. Farmers have done the best they could with the outdated tools they have been given. New aerobic manure management technology leave today's outdated manure methods far behind both in terms of less effort and more profit for the farmer. They eliminate odor, pathogens and GHG's from manure applications while reducing water quality risk, cutting farm management costs and increasing farm profits. Please look into "Circul-O2-Rater" technology recently demonstrated by the ExpertComapny.US under a three year USDA-CIG project. The outcomes of this demonstration change everything for manure management in the future. Finally we have the tools we need to become the environmental stewards we have always wanted to be. In this context the EPA's new ag rules are not even worrisome.

William T (Tom) Butler    
Harnett County, NC 27546  |  May, 23, 2014 at 06:07 PM

Mr.Wm F. Tooley, You are correct in your statement about the new environmental alternatives available to farmers and producers today that were not available a few years ago. We have been very slow to adopt these new technologies due to the old metaphor; "If it aint' broke ...don't fix it! EPA knows that unless we are forced to do waste management improvements we will not! This is a mistake farmers and livestock producers often make by not doing something until we are forced to. EPA cannot solve our problems, but we can. We have the know how and the expertise and usually EPA does not. I agree it takes several entities working together to implement these improvement and to put them in place. Farmers, producers, CAFO integrators, lenders, new technology manufactures and legislators have to get on the same sheet of music and by working together we can make it happen. You are correct in saying that a lot of this waste can be turned into a revenue stream for the farm. Improvements are cheap compared to the cost of making new imposing laws and enforcing them. I am a NC contract pork producer and I know.

Michael    
kansas  |  May, 24, 2014 at 11:27 AM

W.E. Guy, Jr - Because they Are Not the same discharge rules "the rest of us law abiding citizens" are subject to. Urbanites and Municipalities in this and other watersheds are responsible for far more of the pollutants flowing into them than Agriculture and NOTHING is being proposed to regulate them out of existence. The Chesapeake bay flooding pollution damage back in the 90s that originally prompted these new proposals from the EPA, with the assistance of environmental groups like Water Keepers, were misrepresented as being largely Ag related. The fact was that discharges and break-downs in Municipal Waste Systems were the primary sources of the worst pollutants. To date, virtually Nothing has been done about their problems, while Agricultural interests (with much less political/vote impact) have been targeted... because they're easier to bully and make for better news release materials. In addition, the heavily populated region is pouring 100s of millions of gallons of pesticides and fertilizers on their lawns and flower beds with virtually no regulation or monitoring at all. Studies have shown that landscaping uses are far and away worse polluters than farms, but no one has proposed they be put under similar restrictions. Farms and farmers are always seeking to minimize waste/use - because it's in their Economic Interests, as well as being environmentally responsible. Urbanites merely want green, weed-free lawns and bright flower beds - whatever the cost, and they really don't care or know how they're achieved.


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