By CELESTE BAUMGARTNER
Ohio Correspondent

WASHINGTON D.C. — The American Farm Bureau Federation (AFBF) and The Fertilizer Institute (TFI) have filed individual suits against the U.S. Environmental Protection Agency (EPA) over water cleanup plans. The AFBF suit, filed in Pennsylvania, involved the Chesapeake Bay, while TFI’s suit was filed in Florida.

“I think that the important thing is that while this is happening in Florida and the Chesapeake Bay, it is a model and a mode of action that EPA basically intends to pursue on a nationwide basis,” said Kathy Mathers, TFI’s vice president of public affairs.

“So, farmers who might think, ‘That’s the East Coast,’ or ‘the southern United States’ and not a problem for them, they need to be aware that this is, I think in EPA’s mind, a model for moving forward nationally.”

AFBF lawsuit

The AFBF lawsuit specifically focuses on the actions that EPA has taken with regard to the Total Maximum Daily Load (TMDL) in the Chesapeake Bay region, which includes six states and the District of Columbia. The suit was filed in the U.S. District Court for the Middle District of Pennsylvania, said Don Parrish, AFBF senior director, regulatory relations.

“We take exception to the fact that we think they have very clearly stepped over the bounds that Congress authorized them to do in setting this TMDL and also dividing of the allocations,” Parrish said. “It goes much further than what Congress has described.

“Then ultimately, we have a problem with the science that EPA used as well as the lack of public participation they allowed by kind of ramming this through.”
The way Congress described the TMDL is a mathematical number that says this is the amount of a certain pollutant (not pollution) allowed within the bay, Parrish said. “It is a total allocation of a total number of a particular pollutant. The totals are where you divide up a finite pie,” he added.

Typically the states divide the “pie” and give certain sectors and certain people permits – or nonpoint sources people without permits – portions of the pie because that is the mix of economic activity that occurs within the state, Parrish said.

“If the EPA divides the pie, they are then locking into place the kind of allocations that can go on within the state,” he said. “That really does set the tone for the mix of economic activity that can go on in that state.

“Congress allowed states to make that division because it impacts economic growth, it impacts development, it is a function of cost it is a function of social cause, the mix of economic activities that can take place within a state and ultimately a watershed. Congress gave all of that to the state. EPA is trying to subdivide the pie and pick winners and losers.”

Many decisions will be made from this establishment of TMDL allocations that will have a negative impact on peoples’ lives in terms of what it is going to cost to maintain life in this watershed, Parrish said.

“The economy is not going to hit a brick wall but over the next 25 years, it is going to have an unbelievable cost that EPA has not told them,” he said. “It is going to be a death by a thousand cuts. This is going to constrain the economy in this watershed.”

The EPA issued a general statement that clean water is a shared obligation and the regulations will benefit local economies and recreation. Beyond that, David Sternberg, EPA spokesperson, said it is currently reviewing the lawsuit and could not comment at this time.

Ag Nutrient Policy Council

Before the lawsuit was filed, the Agricultural Nutrient Policy Council (ANPC), a coalition of farm organizations, published a report which seriously questioned the data used by the EPA to set the pollution standards for the Chesapeake Bay. The report was prepared by Limno Tech, one of the nation’s leading water sciences and environmental engineering consulting firms.

“USDA estimates that 7 percent of cropped acres are under conventional tillage, 5 percent of cropped acres have a level of tillage between conservation and conventional tillage and 88 percent of cropped acres are under conservation tillage (mulch till or no-till) practices,” according to the report. “EPA estimates that 50 percent of cropped acres are under conventional tillage and 50 percent are under conservation practices.”

“It was important to get this right” said Michael Formica, the National Pork Producers Assoc. chief environmental counsel and a member of the ANPC. “EPA was rushing forward to develop its TMDLs on a really expedited status. This is an EPA program that is going to have a massive economic impact. They gave us about a week’s time to comment on their modeling.”

What Formica found frightening was the EPA’s estimation of agriculture’s presence in the Bay turned out to be off by 30-40 percent. That’s significant because EPA allocated from those numbers what the level of nutrients each operating sector was allowed to discharge.

The EPA has set an aggressive timeline for compliance with these new nutrient levels. “They’re going to look 2013 at agriculture’s performance and if agriculture doesn’t meet their target by 2013, they’re going to begin forcing the states to adopt mandatory permits in areas where you may not have to get a permit. Those permits give them absolute control,” Formica said.
“Everybody from rural America needs to sit down and get a handle on everything coming our way.”

TFI lawsuit

“We have two fundamental issues with the rule that EPA has written,” said Bill Herz, TFI vice president, scientific programs. “We think the science behind the rule is flawed for a variety of reasons, not the least of which is the Florida landscape and ecosystems are far more diverse than could be represented by single numeric standards that are basically amalgamated to fit thousands of different water bodies ... the standards are too broad.”

As an example, phosphate is mined in one region of Florida. The phosphate levels are high naturally in the soil and in any water body in that region, Herz said. Yet the standards set for that region don’t allow for that naturally occurring phosphate.

“We also believe the cost estimates that EPA has put forth are very unrealistic and represent a small fraction of what it will truly cost to comply with this rule if you could achieve 100 percent compliance, and I would say that is an open question,” he explained.

In 2009 the EPA wrote a memo that gave it the authority to come in and take over if a state was lagging in its development of nutrient standards. Herz said TFI believed that was a high hurdle for EPA to stage a federal takeover of a state’s process; however, he said Florida was already in the process of setting its own allocations when EPA stepped in.

He can only speculate the EPA was trying to establish that it can come in and take over any state for any reason.

“I think states should be very concerned, because the TMDL is supposed to be an open, transparent stakeholder-driven process and the state is supposed to know about it when it is happening and be a participant,” he said.