Baise: American Farm Bureau v. EPA will have a huge impact

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The American Farm Bureau Federation v. EPA case has been a frequent topic. This case, win or lose, will have a huge impact on production agriculture.

The case, as I have said, paints a bull’s-eye on American agriculture. Here is the EPA roadmap for states.

It is instructive to review EPA’s required Work Implementation Plans, which it requires for each state to meet to reach Clean Water Act Total Maximum Daily Loads requirements. AFBF is challenging EPA’s legal authority to require these plans and their requirements, as are many states through their Attorneys’ General.

One state’s WIP and the impact it will have

I have chosen Maryland because it has developed a plan to clean up the Chesapeake Bay. The Maryland WIP will have 294 TMDLs, which will cover nitrogen, phosphorus and sediment going into its streams and then into the Chesapeake Bay.v

There is considerable focus on Concentrated Animal Feeding Operations; Maryland claims it was the first state to receive EPA approval for managing nutrients from poultry farms. The Maryland WIP plan was turned into EPA on December 3, 2010. The plan evaluates nitrogen, phosphorus and sediment sources. The agricultural portion of the plan may be of interest.

The WIP has a summary table of strategies to reduce the three pollutants. Agriculture is alleged to be a major problem. Consequently, I will review Maryland’s proposal to control stormwater runoff from agriculture. (Remember, agriculture stormwater runoff is exempt from EPA control, according to the CWA statute.)

 

To meet the Chesapeake Bay TMDL limits for nutrients and sediment, Maryland will have its farmers, between 2012-2017, plant 355,000 acres of cover crops at a cost of $107.4 million. There will be soil conservation and water quality plans on an additional 257,049 acres where Best Management Practices (BMPs) must be installed to control erosion and sediment loss. Conservation tillage will be required on 764,630 acres.

Mandatory no-till

Maryland will require 150,000 acres of its farmland to be No-till. This is required!

Certain farms will have to construct water control structures on 7,250 acres. These structures, according to the WIP, will be used to control water depth and flow rates off of farms and apparently will be paid for by USDA’s EQIP program.

3,800 acres of pastureland must be fenced to keep animals out of streams and prevent stream bank erosion. There will need to be 7,000 acres of “Stream side Grass Buffers” on private lands at a cost of $1.27 million.

The WIP gets interesting when it includes a plan to retire 2,300 acres of highly erodible land owned by private landowners.  About $3 million will be paid for this farmland to be taken out of production. (I am still searching to find out how this will work and who gets put out of business by EPA.)

Maryland will also require 25,000 tons of manure be transported away from farms with high soil phosphorus levels. The manure will go to other farms that EPA and the state determine can use the manure safely.

The plan says 50% of the funding for this program will be paid for by a Maryland cost share plan. Estimated cost for moving the 25,000 tons between 2012-2017 is $6.75 million.

EPA and the Maryland WIP is so detailed that it requires the construction of 53 poultry waste structures and 145 livestock waste structures to cover all manure until it is actually transported to a field for use. The cost of these two programs is estimated at $6 million.

 

CAFOs will also have restrictions on manure application. For 2,500 acres in Maryland, there will need to be a 100-foot or 35-foot setback for manure application close to a stream. There will also be a 10-foot setback for the application of any non manure crop nutrient on 5,280 acres.

The WIP also requires the construction of 180 runoff control systems on farm lands and structures. The strategy claims runoff control will use a variety of techniques to reduce nutrient runoff or soil erosion which may include grading of the land to direct runoff from rainfall.

As you can see, the proposed Maryland WIP is going to involve a great deal of forced activity on farms in the state of Maryland to reduce water runoff. I will examine other states’ WIPs in the coming weeks to give you an idea of what is headed to the Midwest.

The Maryland WIP lends support to court filings which claim states will be required to shut down farming operations to meet EPA requirements for the CWA. The Maryland WIP supports that allegation.

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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