I have written several blogs regarding the American Farm Bureau Federation v. EPA case. I have described the view of 21 state Attorneys General. Counties in Pennsylvania have weighed in on this seminal case. Now I describe EPA's brief regarding controlling runoff from farms in the Chesapeake Bay region.
If EPA wins, it will apply this case to the Midwest!
EPA says: "The Bay TMDL (Total Maximum Daily Load) is a pollution budget, developed through the longstanding Chesapeake Bay Program Partnership, that has the potential to restore the chronically degraded waters of one of America's most important ecosystems." (Note the theme EPA develops. Briefs on agriculture's side describe the law, not emotion as EPA does.)
EPA in its effective brief paints a bulls-eye on agriculture by saying it has created "chronically degraded waters" in the Chesapeake Bay.
The EPA brief presents a theme of facts leading one to conclude that if agriculture cleans up its act, the Bay will be restored.
The Chesapeake Bay is "...a resource of extraordinary productivity, worthy of the highest levels of protection and restoration."
EPA describes the Bay as being over 200 miles long, encompassing over 11,000 miles of shoreline,10,000 streams and rivers, 50 major tributaries, and a watershed of 64,000 square miles. It is noted the Bay produces over 500 million pounds of seafood a year with an estimated value of approximately $1 trillion. Nothing about the value of agriculture and what it produces for area and nation is discussed.
EPA then claims excess nitrogen, phosphorus, and sediment from agriculture, urban runoff, and atmospheric deposition have caused the Bay to have murky water, algal blooms, and low levels of oxygen for aquatic life.
EPA's brief on page 5 describes point sources and nonpoint sources and never once addresses the agricultural stormwater runoff exemption. When EPA is discussing nonpoint sources, the first category is always agriculture or farmlands.
EPA is forthright in saying its "...role is generally not to control pollutants from nonpoint sources directly, but it has influence over nonpoint sources through oversight and assistance to the states."
On page 24 of EPA's brief, it claims, "nonpoint source agriculture is the single largest source of nitrogen, phosphorus, and sediment pollution that reaches the Bay, accounting in 2009 for 44% of nitrogen and phosphorus and 65% of sediment."
EPA's brief goes on to claim that almost all of the sediment load in the Bay comes from sources not currently regulated by EPA. Once again, EPA never addresses the fact that Congress has told EPA explicitly to keep your hands off of agricultural stormwater runoff. EPA is simply ignoring Congress' specific instruction by claiming it has the power to set pollution budgets and pollutant cap load allocations for every stream in the Chesapeake Bay watershed.
Both states and counties claim EPA is attempting to shut down agricultural operations in their states. EPA disagrees. EPA says its modeling shows the states are not cleaning up the waters flowing into the Chesapeake Bay. It further claims that some courts have held if a state consistently fails to clean up its waterways, EPA has an obligation to force clean ups. Again, there is no discussion of Congress amending the Clean Water Act giving agricultural nonpoint source runoff an exemption from being regulated by EPA.
EPA is very specific in declaring there will be "...an overall load limit for each pollutant for each water segment." EPA says "The Bay TMDL contains 276 such numbers: a nitrogen, phosphorus, and sediment load for each of the 92 title Bay water segments."
EPA has filed a 58 page brief which makes quite clear nonpoint sources such as agriculture are failing to control nutrient loads flowing into Chesapeake Bay tributaries.
This case, as I have said before, will determine who controls agriculture in this country – individual farmers and landowners or EPA bureaucrats.
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.