Earlier this week a U.S. Court of Appeals wrote that water pollution in the Chesapeake Bay is a complex issue in a major case affecting all agriculture. It says “…the winners are environmental groups, the states that border the Bay, tourists, fishermen, municipal waste water treatment works, and urban centers. The losers are rural counties with farming operations, nonpoint source polluters, [and] the agricultural industry…”  

So, in the case of American Farm Bureau Federation v EPA, the court makes clear that the Clean Water Act (CWA) allocates benefits and requires the sacrifice of many.

The Court concluded its opinion by stating “Farm Bureau’s arguments…are unpersuasive, and thus we affirm the careful and thorough opinion of the District Court.” This opinion is written by three judges appointed by Republicans and Democrats who appear not to have a shred of agricultural background.

The opinion is 60 pages. It begins with an emotional opening describing the Chesapeake Bay in 1608 as observed by two associates of Captain John Smith. The Court goes on to describe the watershed area as sustaining a major human population, a great deal of commerce, fishing, shipping, farming and tourism. Then it describes a Bay as plagued with dead zones, opaque water, algae blooms, and water that absorbs too much nitrogen, phosphorus and sediment.

In trouble

Even before reading the Court’s reasoning, you know agriculture is in trouble because the Court quotes from a famous book by William W. Warner entitled, Beautiful Swimmers: Watermen, Crabs and the Chesapeake Bay. Warner is quoted as saying “There is…no doubt that the Bay’s natural resources have seriously eroded…”

The Court, after noting all the wonderful virtues of the Bay, begins an examination of the CWA, passed in 1972. It pays particular attention to a Section known as 303 (d). The Court makes clear it deals primarily with this one provision which calls for the establishment of a “total maximum daily load of pollution (TMDL) for certain waters.” A TMDL is required if water quality standards are not met by point source polluters. The Court conveniently overlooks the first sentence of 303 (d) (1) which says states must identify waters within their boundaries for which effluent limitations are required.

The Court seems not to understand that Section 303 deals with point sources, not nonpoint sources.

The Court, in explaining TMDLS coming from Section 303 which is correct, ignores Section 319 of the CWA which makes it very clear that there is a process to control nonpoint sources of pollution.

Farm Bureau's briefs

Apparently the briefs of Farm Bureau and others did not bring this distinction to the Court’s attention. The Court correctly describes EPA as having the primary responsibility for regulating point sources and states having the authority to regulate nonpoint sources and even agrees it (EPA) cannot regulate nonpoint sources directly. 

The Court relies on EPA regulations, which define total maximum daily load as including waste load allocations from point sources and load allocations from nonpoint sources.

Conveniently none of this is in the CWA.

EPA in 2010 published its rule regarding the total maximum daily load of nitrogen, phosphorus and sediment which can be released into the Chesapeake Bay. The TMDL from EPA is the plan which includes point and nonpoint source limitations for 92 water segments of the Bay and it further allocates limits on specific point sources and nonpoint sources. (This means control for what runs off your land.) EPA anticipates that 60 percent of its proposed limitations will be in place by 2017, and all pollution control measures will be in place by 2025. 

Stormwater exemption

Nowhere does the Court acknowledge agriculture’s stormwater runoff exemption or Section 319, which requires Governors and states to identify categories and subcategories of nonpoint sources which contribute to the failure of a stream meeting water quality standards and goals. Nor does the opinion allude to the CWA Section describing an Interstate Management Conference. This section was put into the CWA to assure water quality standards were met even if there was significant pollution from nonpoint sources in one state impacting another state.

In fact, Congress was so concerned about nonpoint source pollution and that it be handled by the states, that it exempted interstate conferences from the citizen suit provision of the CWA. The Court says the CWA is silent on how EPA must set TMDLs and even admits how to account for nonpoint sources is not obvious. The Court notes in its opinion that EPA may find it impossible to meet water quality standards using only point-source reductions.

“Therefore, the Clean Water Act requires the drafter of a TMDL to consider nonpoint-source pollution.” The Court assumes that point source and nonpoint source pollution must be tied together in a TMDL. “To be sure, the statute does not command EPA’s final regulation to allocate explicitly parts of a load among different kinds of sources, but we agree with the EPA that it may do so.”

Notwithstanding Congress’ explicit direction on how to regulate nonpoint sources in the CWA, the Court has created agricultural losers. That is you!

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.