Farmers Appeal TMDL Decision – Right to Determine Land Use Belongs to the States

It is an old story now that the Chesapeake Bay and its tidal waters have been impaired by the release of excess nitrogen, phosphorus and sediment. These pollutants are released from waste water treatment plants, agricultural operations, urban and suburban runoff, wastewater facilities, septic systems, air pollution and other sources that enter the tributaries and Chesapeake Bay from the 16 million people living within its vast 64,000 square mile watershed.

There are six Chesapeake Bay states, Virginia, Maryland, West Virginia, Delaware, Pennsylvania, New York-and Washington DC. For decades these states have been attempting to clean up the Chesapeake Bay, and in fact, have made tremendous progress. Nonetheless, a “clean” Chesapeake Bay has alluded them; the cleanup plans hindered by growth in population and the region’s economies and difficulty in controlling the diverse sources of contamination.

In December 2010 the U.S. Environmental Protection Agency, EPA, mandated a contamination limit called the TMDL (total maximum daily load for nutrient contamination and sediment) to restore the Chesapeake Bay. The TMDL sets an overall limit for the entire Chesapeake Bay watershed of 185.9 million pounds of nitrogen, 12.5 million pounds of phosphorus and 6.45 billion pounds of sediment per year which is a 25% reduction in nitrogen, 24% reduction in phosphorus and 20 % reduction in sediment from the 2011 levels. The pollution limits were then partitioned to the various states and river basins based on the Chesapeake Bay computer modeling tools and monitoring data. At this time the TMDL addresses only pollution from excess nitrogen, phosphorus and sediment.

Population growth and less than consistent remedial actions on the non-point source contamination has challenged efforts to restore the Chesapeake Bay. Non-point source pollution is pollution that does not come out of a pipe, but are carried to rivers and streams by runoff from rain and snowmelt. The way to reduce impact of this non-point source pollution on the environment is to implement what has been called “best management practices” and stormwater management. BMPs minimize the use of fertilizers, pesticides, etc. and that slow stormwater flow to prevent erosion and achieve a desired level of performance and quality while protecting the environment.

Pollution form urban and suburban stormwater runoff and septic systems is the only category of pollution in the region that has been growing in the 21st Century. In order to reduce the stormwater runoff carrying nitrogen, phosphorus, sediment and other pollutants from existing suburban residential areas, stormwater best management practices will also have to be implemented in the suburban communities. Counties, towns and cities within the Chesapeake Bay watershed are going to have to implement non-point source nutrient management throughout the watershed not only to stop growth in pollution, but reduce the amount of pollution. Homeowner Associations and individual homeowners will need to individually and as a group reduce the nutrients and sediment run off from their properties. EPA did not allow the states to “grandfather” the nutrient levels from existing homes. Suburban and semi-rural BMPs have the potential to significantly reduce nutrient and sediment pollution in the Chesapeake Bay, but state regulators and various health departments have struggled to reach, educate and motivate the public to implement, let alone maintain mitigation strategies. States have struggled with something as simple as trying to increase compliance with septic regulations by the public.

Nutrient management and soil and water conservation districts play a pivotal role in preventing such runoff in the agricultural community. In fact, conservation districts have been in the business of fighting erosion (which prevents nutrient and sediment pollution) since the mid-1930s, but conservation districts have met with varying degrees of success from state to state. Agricultural operations are businesses that can see the direct result of maintaining their top soil and that have learned over the years to deal with various regulations, still there are challenges. When dealing with the individual homeowner and the disperse sources of non-point source contamination; septic systems, poor drainage, impervious ground cover, lawn and plant fertilization, and household behaviors the challenges are much greater.

Nonetheless, it was the farmers who challenged the TMDL. In January 2011 American Farm Bureau Federation and the Pennsylvania Farm Bureau filed a complaint in federal court against the EPA to throw out the TMDL. The two Farm Bureaus were joined by the National Association of Home Builders, the National Chicken Council, the National Corn Growers Association, the National Pork Producers Council, the National Turkey Federation, The Fertilizer Institute, and the U.S. Poultry & Egg Association. This group known collectively as “the Farm Bureau Group” made three complaints: (1) that the pollution limits or TMDL exceeded EPA’s authority, (2) that they were based on faulty science, and (3) that the plaintiff did not have adequate time to participate in the comment process and filed a motion for summary judgment against the EPA.

The EPA was joined by the Chesapeake Bay Foundation, Citizens for Pennsylvania’s Future, Defenders of Wildlife, Jefferson County (WV) Public Service District, Midshore River Keeper Conservancy, and the National Wildlife Federation. Several municipal waste water treatment groups were also allowed to intervene on behalf of EPA. The EPA group filed a counter motion for summary judgment against the Farm Bureau Group’s motion for summary judgment and oral arguments were made in October 2012.

Last September the District Court affirmed that the pollution limits that EPA established for the Chesapeake Bay and its tributaries are within the purview of the Clean Water Act and are based on sound science. The Court also found that the Farm Bureau and Homebuilders had ample time to review and comment on the proposed limits. Summary judgment was granted to the EPA.

The Farm Bureau Group is appealing that decision to the Third Circuit Court of Appeals in Philadelphia and have now been joined by a group of 21 of the nation’s 50 attorneys general who in February filed a friend of the court brief expressing concern that the Bay TMDL would set a precedent for other water bodies, including the Mississippi River basin. This month Thirty-nine members of Congress joined the Farm Bureau Group in their challenge to the EPA mandated TMDL and oversight of the Watershed Implementation Plans, saying the EPA went “far beyond” its authority when it set the TMDL limits and required states to develop the prescribed plans acceptable to the EPA showing how they would meet those limits on the timeline mandated by the EPA. This same structure of overall pollutant reduction with a mandated and supervised plan for implementation is also being used by the EPA to mandate reduction in carbon dioxide from power generation across the United States under the Clean Air Act.

This past spring when the Chesapeake Bay Foundation (CBF) and the Choose Clean Water Coalition (CCWC) issued their report reviewing the results of the 2012-13 pollution reduction milestones against the states’ approved plans they found that pollution is being reduced in every state and Washington DC. However, they report that Pennsylvania and Delaware fell short in meeting their overall nitrogen pollution reduction target for 2013. In particular, estimated loads from the agricultural sector actually increased for nitrogen in Pennsylvania. The wastewater sector is already meeting or exceeding 2017 nutrient reduction goals in Pennsylvania, Delaware, Washington DC and Virginia. Non-point source pollution control on agricultural operations and control of the individual homeowner in urban and suburban areas is proving challenging everywhere, but Maryland. However the CBF and CCWC voiced their concerns about the underlying data for Maryland's calculations on retrofitting stormwater management saying: “There is a lack of transparency concerning both the numbers being reported to the state, as well as how the reductions are calculated.” In addition, while Maryland is tracking dead on target in meeting its pollution reduction milestones they have a long way to go to meet the 2017 and 2025 goals.

Now the Chesapeake Research Consortium and Bay Journal are planning a conference to discuss what they believe is the real policy solution to restoring the Chesapeake Bay. These organizations are looking to discuss and the possibility of and implementation of growth limits on population and the economy to achieve a sustainable Chesapeake Bay. The TMDL stated goal is to restore the Chesapeake Bay to its ecological condition in 1950. The targets of the TMDL are estimates of what those pollution levels were at that time. In 1950 there were approximately 8 million people living and working in the Chesapeake Bay watershed. 

Today there are approximately 16 million people living and working in the 64,000 square mile Chesapeake Bay watershed. The Chesapeake Research Consortium and the Bay Journal are questioning if a restored Chesapeake Bay can be achieved if the population an economy is “allowed” to continue to grow. It is a valid and realistic concern; however, these groups do not seem to question if EPA is can use the Watershed Implementation Plans for the Chesapeake Bay states to control land use, growth and water quality policy decisions. Congress did not grant to EPA the authority to control land use under the Clean Water Act. Growth and sustainability are issues that need to be addressed on the local level.