"The [Chesapeake] Bay [Total Maximum Daily Load] essentially dictates which lands may be used for farming... which other lands must be "retired" out of productive use (e.g., to make room for EPA's required riparian buffers), and how much fertilizer a farmer may apply to his working lands…"
That alarming quote comes from a legal brief filed in the AFBF v. Environmental Protection Agency case by several county governments in Pennsylvania, plus two in West Virginia and one in Delaware.
My interpretation: EPA wants to control what nutrients are in the stormwater running off your farm or ranch. EPA, not the U.S. Department of Agriculture, is on its way to controlling how you operate your farm, ranch or timber operation.
Unfortunately USDA is nowhere to be seen in this case.
County governments have a lot to say about where this case may be headed. If you think local decision-making is in danger, you're right.
The Counties' brief in the U.S. Court of Appeals for the Third Circuit describes their interest for the court. The counties claim that EPA's actions will, in effect, lock in local land use decisions. They say EPA wants to assign a certain number of pounds of nutrients which may come off of a specific parcel of land.
EPA wants to "…curtail or even prohibit certain land uses in order to achieve the reductions compelled by EPA." They believe EPA wants to take over land use, economic development, taxation and fundamentally take over state and local decision-making regarding land use.
You may find what the American Farm Bureau and its supporters are saying to be beyond belief. If you do, I welcome you to study the brief filed by Cambria County, Penn.; Clearfield County, Penn.; Lancaster County, Penn.; Perry County, Penn.; Tioga County, Penn.; Hardy County, W.V.; Pendleton County, W.V.; and New Castle County, Del.
The brief describes each County and its interest in the TMDL case. Several Pennsylvania counties state, "In the agricultural sector, erosion and sediment control plans are required for Animal Heavy Use Areas, and additional vegetative cover is required for fields within 100 feet of a stream."
There is no discussion by the counties of the Clean Water Act's agricultural stormwater exemption which protects agricultural runoff.
Clearfield County, Penn., provides an excellent example of what EPA is attempting to do to agriculture in the United States.
The brief describes the County as 81% rural with most of the land dedicated to agriculture resource production and extraction. Clearfield claims that it will be forced to take "…agricultural lands out of production…"
Tioga County, Penn., reports a population of 42,577 and describes itself as rural with croplands occupying 18% of the County. Tioga believes that agriculture will have to construct riparian buffers, and the buffers will require landowners to "…shore-up creek banks with trees, thus further limiting the amount of land authorized for agriculture production."
Hardy County, W.V., claims 13,866 residents with about one-third of the land being tilled. Hardy County claims in the brief that "…a significant amount of Hardy County farm land will have to be removed from production due to its proximity to waterways and the resulting impacts of the Bay TMDL on local land use."
This is a good story by the counties, but no real context is given to these assertions.
The Counties' brief hints at USDA numbers which suggest that EPA is not taking into account data and reports from the Natural Resources Conservation Service. It is claimed the NRCS report issued in December, 2013, shows that many Agricultural Best Management Practices are not recognized by EPA.
The Counties' brief suggests great actions by agriculture, but provides no real description of how well the farmers and timber owners are doing in protecting the environment and the Bay.
Counties say "Not only did EPA seize the local land use function in counties affected by the [Chesapeake] Bay TMDL, EPA also largely ignored or overlooked the progress these counties have been making to improve water quality in the Chesapeake Bay."
Until USDA and its supporters fully explain agriculture's successes in protecting water quality to the appeals court, the American farmer and rancher face a difficult future with EPA controlling nutrients in stormwater running off our fields and forests.
Farmers and farmland owners in the Midwest need to take note of these claims. The same scenario could soon play out in the Corn Belt.
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.