The water quality fight simmering in the Chesapeake Bay region could drastically impact agricultural land use from Virginia to Montana by the time the legal battle is over.

In 2010, the EPA issued Total Maximum Daily Loads (TMDL) for the amount of nitrogen, phosphorus and sediment that could reach the Chesapeake Bay. In doing so, EPA also imposed TMDLs—or caps—on sources of these pollutants throughout the Chesapeake Bay watershed. These caps apply to state and local governments, industrial dischargers and landowners, including farmers.  

In response, the American Farm Bureau Federation (AFBF) and the Pennsylvania Farm Bureau filed a lawsuit in January 2011 with these two challenges:

The first point has gotten significant attention to date and will be important in establishing how the caps are met, but the second point could decide what governing body determines land use—state and local authorities or the federal government—with national implications.  

“Farmers have been working to improve water quality in the Bay through extensive conservation practices for decades,” says Danielle Quist, senior counsel for AFBF. “We understand there’s still work to be done (to improve water quality). What EPA has done in finalizing this ‘TMDL’ is to take TMDL implementation control away from the states, and that is not how the Clean Water Act envisioned the TMDL program. TMDL implementation is left solely to states and local governments, not EPA.”

By including how the TMDL will be achieved at the local level—and including avenues to enforce those caps on source points and non-source points—the AFBF believes the EPA has overstepped its authority, Quist said.

The AFBF isn’t alone in that opinion. Other plaintiffs in the lawsuit include the Fertilizer Institute, National Pork Producers Council, National Corn Growers Association, National Chicken Council, U.S. Poultry & Egg Association and the National Turkey Federation. The court also consolidated a separate lawsuit filed by the National Association of Home Builders into the AFBF suit.

                   In a written statement in response to questions from Corn & Soybean Digest, the EPA replied, “The TMDL establishes levels for the six states and D.C. and for the major river basins. It is up to the jurisdictions and local governments to determine how to achieve those goals.  The key to the success of the TMDL is to have the states take the lead, working with their local partners, to implement it; therefore, EPA encouraged the jurisdictions to develop watershed implementation plans (WIP) that meet the TMDL allocations in the manner most feasible and cost-effective for each jurisdiction. EPA provided the states with clear and detailed expectations for such plans and also provided technical and financial assistance and answered questions as the jurisdictions developed their draft and final WIP. It is neither our intention, nor our hope that EPA would need to supplement state action with federal ‘backstop’ actions.”

The court has suspended the briefing schedule until the judge rules on whether certain documents should have been included in the administrative record, Quist said. In the meantime, the TMDL is in effect and EPA is moving forward with establishing how jurisdictions will meet the new pollution caps. State and local governments will need to implement actions to achieve at least a 60% reduction in the nutrient and sediment loads by 2017 from 2009 levels, according to the EPA statement.  

If the lawsuit succeeds, it will confirm states’ rights to determine whether, when and how TMDLs are met and implemented, Quist says. It also would likely prevent the EPA from establishing a TMDL for the northern Gulf of Mexico that could bind the entire Mississippi River watershed.

However, a ruling in favor of the EPA will have sweeping implications for farmers, says Don Parrish, AFBF senior director, regulatory relations.

In the Chesapeake Bay, the “immediate impact has been a disbelief and a growing concern that what (farmers) are being asked to do is unachievable. It’s had a chilling effect on investment, their land and their production capacity,” he says. “If you extend it to another watershed, like the Mississippi watershed, you’ll see a lot of agriculture production come into pressure to meet very costly standards.”

Many growers in the area already practice nutrient management, such as precision tillage, conservation tillage, and cover crops, Parrish says. Farmers have embraced the systems that work for them and help the bottom line.

However, the EPA philosophy is “everything, everybody, everywhere,” he adds, “and we think that’s problematic. Every time you layer in additional management practices, you assume the ability is there to management it at a profit—and that’s not always the case.”

Economic, social and environmental interests “need to be considered together,” Parrish says. “And it’s not just agriculture. It’s the broad economy.”

It is unlikely that a TMDL will be set for the Mississippi River basin in 2012, says Susan Bodine, Counsel for the Agricultural Nutrient Policy Council, but conditions are right for the EPA to ultimately adopt a similar strategy of pollution control for the northern Gulf of Mexico.

In November 2011, the EPA proposed to list three areas of the northern Gulf of Mexico on its list of impaired waters.

Once a body of water is listed as impaired, the law requires a TMDL, Bodine says. The agency has said that it expects the Louisiana Department of Environmental Quality (DEQ) to take the lead in establishing the TMDL, but recognizes that it will be a complex analysis. Regulators within the Louisiana DEQ responded that the issue should be addressed through the process already established under the Mississippi River/Gulf of Mexico Watershed Nutrient (hypoxia) Task Force, rather than through a TMDL, since many sources of pollution are upstream from Louisiana.

If the state regulators fail to act in a way that satisfies environmental groups, the groups could file a lawsuit seeking to force the EPA to establish a TMDL, Bodine says.

“EPA hasn’t started a TMDL,” she says. “But that doesn’t mean (the agency) won’t get sued, and won’t end up agreeing to (set) a TMDL under a settlement agreement.”

If that happens, she says the same issues being debated in the Chesapeake Bay will be presented:  Does EPA have sufficient technical information or the legal authority to do a TMDL for an entire watershed?

After more than 25 years of setting—and not meeting—overall pollution reduction goals in the Chesapeake Bay, the EPA’s comprehensive approach is welcomed by groups wanting to clean up the Bay.

“The Chesapeake Bay restoration efforts came out of studies conducted in the 1970s,” says Beth McGee, senior water quality scientist with the Chesapeake Bay Foundation. “A partnership between the main Bay states was formed in 1983 to clean up the Bay. Along the way, other jurisdictions in the watershed agreed to participate.”

In 1987 the EPA set numeric targets to reduce pollution in the Bay by 40% by 2000 and when that failed, a new target was set for 2010.

“We missed (both) targets by a long shot,” McGee says. “The Bay is still listed as impaired waters. The collective wisdom is we need to do something different.”

According to the EPA’s written response, as of May 2010 when the Executive Order came out “89 of 92 segments of the Bay and its tidal waters are impaired. Under the TMDL, it’s estimated that 60% of the segments will meet water quality standards in the Bay and tidal tributaries by 2025.”

McGee acknowledged that meeting the TMDL requirements by 2017 and 2025 won’t be easy and says the Chesapeake Bay Foundation, which was formed in 1967 to drive clean-up of the Bay, is putting plans in place to help farmers meet the new criteria.

Because roughly 40% of the pollution loads in the Bay originate with agriculture, they, like other pollution sources, must do their share, says the Chesapeake Bay Foundation’s McGee,. But the foundation also knows it is hard to translate the pollution reduction requirements into action—particularly at the individual farm level.

Consequently, the Chesapeake Bay Foundation is initiating a program to help farmers understand the TMDLs and which practices will help them meet the standards. Expected to launch this spring, it will include online tools to help calculate run-off and nutrient loss against the specified targets. The Foundation also hopes to identify model farms that are in compliance and use them as examples.

“We feel confident that many farmers are already doing what they need to do but they don’t know it yet,” McGee says. “We think the program will alleviate some of those concerns.”