Counties Attack EPA’s TMDL Regulations

Counties in Pennsylvania, New York and Virginia have filed a friend of the court brief (Amicus Curiae) in the TMDL (Total Maximum Daily Load) case between the American Farm Bureau Federation v EPA.

Seventeen county governments in these three states spell out why they oppose EPA’s attempt to control non-point source pollution which migrates into the Chesapeake Bay.

The counties believe EPA is usurping local governments’ traditional authority to make local land-use decisions. They tell the U.S. Supreme Court that EPA is ordering “…States and counties how to allocate their respective shares of those total [pollutant] loads among different point and non-point sources [farms] across different water segments in their jurisdictions.” They also allege the Third Circuit court decision supporting EPA “…authorizes a massive transfer of power from local elected official to an unelected federal bureaucracy in Washington, D.C.”

The brief provides background on Fauquier County, Virginia. The Fauquier Farm Bureau is one of fifty Virginia farm bureaus. The brief declares Fauquier’s farmers will be uniquely harmed by EPA’s TMDL regulation. EPA “…will require Fauquier County producers to undertake unnecessary and especially costly measures to meet the TMDL’s draconian mandates targeting farmers, and – with respect to the entire Bay – push hundreds of thousands of acres of farmland out of production.” The brief claims 20% of cropland in the watershed or approximately 600,000 acres will have to be converted to grassland or forest to achieve EPA’s required TMDLs. (Not once is it mentioned in the brief that Section 319 of the Clean Water Act (CWA) provides protection to non-point source dischargers such as farmers.) The brief goes on to describe the U.S. District Court’s opinion in Pennsylvania as authorizing “…nothing short of a federal government take-over of land use decision-making in the 64,000–square mile Chesapeake Bay that is home to 17 million people.”

The counties claim that “States and counties are forced to curtail or even prohibit certain land uses in order to achieve the reductions mandated by… [EPA’s] TMDL.” Further it is alleged EPA will dictate “…which lands may be used for farming or development, which other lands must be ‘retired’ out of productive use…how much fertilizer a farmer may apply to his working lands,…” (This is coming to the Midwest if EPA wins.)

The brief asserts that “…EPA [is] a notoriously overweening and politically insulated agency.” This quote comes from the College of William & Mary’s Environmental Law & Policy Review. It also claims “There was, in general, a lack of transparency in the setting of TMDL nutrient load reduction targets by EPA.”  The counties further assert EPA’s TMDL for the Chesapeake Bay was developed with little consideration given to the actual cost local governments would be required to spend to meet pollutant limits. They say “The Bay TMDL provides no estimate of the total cost of achieving its 2017 and 2025 pollution reduction targets for nitrogen, phosphorus and sediments.”

The counties claim they are being “blindsided” by EPA’s requirements. The brief has a section on the impacts of EPA’s Chesapeake Bay TMDL on agricultural producers. Three counties’ impacts are described.  One example: In Lancaster County, PA, there are 400,000 acres of productive farmland of which 100,000 acres are in agricultural preserve. The brief claims Lancaster County must achieve “…a 35% nitrogen-load reduction, a 27% phosphorus-load reduction, and a 39% sediment-load reduction.” These requirements come from Pennsylvania’s Watershed Implementation Plan 2012. (It is a document worth reading.)

As stated earlier, there is no reference to the non-point section of the CWA which allows non-point sources to have runoff of nitrogen, phosphorus and sediment. Nor is there any reference to the USDA’s 2011 assessment of Conservation Practices in the Chesapeake Bay. There is no indication in this brief or others that urban areas have the highest-per-acre contribution of nitrogen phosphorus and sediment to rivers and streams in the Chesapeake Bay region. Urban areas deliver 2,011 pounds per acre of sediment to rivers and streams annually. Cultivated cropland delivers 897 pounds per acre annually. Urban areas deliver 34.6 pounds of nitrogen and cropland delivers 23.1 pounds to the Chesapeake Bay annually.

More to come on agriculture’s defenses.

(This article first ran in Farm Futures on February 23, 2016)

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