In May 2014, I suggested Mid-Atlantic state farmers would be severely impacted if the American Farm Bureau Federation lost its Clean Water Act case against EPA involving total maximum daily loads. Well, AFBF lost!

The U.S. Supreme Court, on February 29, 2016, refused to hear AFBF’s challenge to EPA’s CWA regulatory plan to regulate runoff from farm land.

As a result, EPA will now be able to proceed in setting a “pollution diet” for farms to restore clean water in the Chesapeake Bay. The Midwest will be next.

Reaction to the case has been negative. EPA has projected that approximately 20% of all crop land in the Chesapeake Bay Watershed will be removed by EPA from food production and converted to grassland and forest land. New AFBF President, Zippy Duvall, says, “EPA has asserted the power to sit as a federal zoning board, dictating which land can be farmed and where homes, roads and schools can be built. We [AFBF] remain firm in opposing this unlawful expansion of EPA’s power.”

The National Corn Growers President claimed EPA’s TMDL plan is “…an unlawful overreach of federal regulatory power.”

What the court missed

This loss by AFBF will impact farmers and ranchers for decades to come.

The Supreme Court did not appear to consider the fact that agriculture has a specific Clean Water Act section entitled Nonpoint Source Pollution Control - Section 319 which allows agricultural stormwater runoff. or the agriculture stormwater runoff exemption. Nor did the Supreme Court appear to have before it the story that agriculture in the Mid-Atlantic States has engaged in conservation practices on cultivated cropland for years and has achieved considerable success.

USDA and the Natural Resources Conservation Service  in 2011 issued a report entitled “Assessment of the Effects of Conservation Practices on Cultivated Cropland in the Chesapeake Bay Region”. It used sampling and modeling to quantify environmental benefits that farmers and USDA conservation programs are providing to society. The report describes the Chesapeake Bay as the largest estuary in the U.S. covering 68,500 square miles in 6 states. Agricultural land is approximately 30% of the watershed with 10% of that land being cultivated and approximately 18%-20% in grazing and hay land.

Forest land covers approximately 59% and urban land 8% of the watershed. USDA asserts there are approximately 84,000 farms in the 6 states generating over $10 billion annually in income.

Surprisingly, the report concludes that “Urban land is the largest source of sediment delivered to rivers and streams, delivering 39.5% of the sediment. Another 23% comes from forest land…and 21.5% from cultivated cropland.”

Another surprising assertion by USDA is that “Urban land is also the largest source of nitrogen delivered to rivers and streams in the watershed, contributing 37.7% of the nitrogen. Cultivated cropland contributes 30.8% and forest land and other minor land uses contribute 13.3%.” 

Another conclusion from USDA that I never saw in any of the briefs I read was “Over half of the phosphorus (50.1%) delivered to streams and rivers comes from urban land. Cropland delivers 28.3% and forest land and other minor land uses contribute 6.8%.”

In another startling conclusion, NRCS claims that urban land use contributes 2,011 pounds of sediment and nutrients per acre to Chesapeake Bay rivers and streams while cultivated cropland contributes 897 pounds per acre and pasture land only 206 pounds of sediment and nutrients to Chesapeake Bay rivers and streams.

Of the approximately 84,000 farms, 12,826,065 total acres are farmed. Approximately 6 million of these acres are harvested. NRCS concludes that conservation practices in the Chesapeake Bay region are quite successful in reducing pollutants being discharged into the Chesapeake Bay. The study does find that 19% of the active cropped acres, approximately 810,000 acres, have a high level of need for additional conservation treatment. NRCS reports that nearly ½ of the cropland acres are protected by structural practices such as buffers or terraces.  It claims “Reduced tillage is used in some form on 88% of the cropland. Adoption of conservation practices has reduced edge-of-field sediment loss by 55%, losses of nitrogen with surface runoff by 42%, losses of nitrogen in subsurface flows by 31% and losses of phosphorus…by 41%.”

USDA and NRCS have provided an invaluable service in providing facts to help protect agriculture from EPA. These facts should be used to help agriculture and avoid more court losses.   

The opinions of the author are not necessarily those of Farm Futures or Penton Agriculture.