Twenty one state Attorneys General, including those in Indiana, Arkansas, Florida, Kentucky, Nebraska, Texas and Wyoming, have gone on the record in a brief in the case of American Farm Bureau Federation v. Environmental Protection Agency: "EPA claims limitless power to dictate local land-use decisions," they say. "EPA claims in this case would allow it to make land-use decisions for cropland and pasture that produces half of the nation's corn, 41% of the nation's soybean exports, and one third of all the nation's hog and pig sales."
The case could have a major impact on the future of American agriculture.
These states, through their Attorney General, are challenging EPA's regulation which will strip states of their traditional right to make land-use decisions necessary to comply with Clean Water Act standards.
The U.S. EPA is using the Chesapeake Bay to implement Total Maximum Daily Loads to attempt to micromanage sources of pollution from agriculture and other nonpoint sources.
As I have suggested in previous columns, if EPA is allowed by the courts to micromanage nonpoint sources of pollution, then 31 states and their watersheds including the Mississippi River Basin will be next.
The AFBF case represents EPA's decade-long attempt to control the states and how each state achieves federal water quality standards. The Clean Water Act gave EPA absolute control over discharges of pollutants from point sources. Conversely, the CWA gave the states the power to regulate non-point sources, which includes agriculture.
The CWA did create a grants program which assists in limiting pollution from sediment runoff from agricultural fields, construction or other earth-moving activities, or natural background sources of pollution. The Attorneys General point out "Congress withheld from EPA authority to regulate nonpoint sources." Congress did give EPA the authority to set TMDLs if it determined a state's TMDL was inadequate. At no time, claims the brief, can EPA regulate nonpoint sources.
The Attorneys General now say EPA is invading States' traditional control over land-use management within a state.
It is claimed by the Attorneys General, and they are correct, that EPA is now setting "...numerous annual and daily allocations for nonpoint source sectors including agriculture, forests,.. within each watershed [of a] State."
EPA is simply seeking to obliterate land-use authority applied by states and local authorities in its desire to seek ultimate control over nonpoint sources. Regulation of land use is a quintessential state activity.
The Attorneys General's brief has some chilling language on page 17-18: "By setting allocations for particular types or parcels of land low enough, EPA could require state and local governments to limit or prohibit fertilizer on agricultural lands, stop production on lands used for agriculture or forestry, halt construction or development or rezone certain lands altogether."
EPA is claiming limitless power to dictate land-use decisions.
So EPA, if it wins this case, will most likely turn to the Mississippi River Basin, the third largest drainage basin in the world covering 41% of the contiguous United States. The brief claims that EPA "could control - and potentially debilitate - an important part of the United States all under the auspices of setting 'the Total Minimum Daily Load' for pollutants entering the Mississippi River."
EPA says it has no such intention and that the TMDLs are non binding informational tools.
This EPA rule reminds me of a statement by Thomas Jefferson. "Government big enough to supply everything you need is big enough to take everything you have. The course of history shows that as a government grows, liberty decreases."
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.