EPA Takes Aim at Chesapeake Bay

Potentially one of the most concerning developments in the environmental arena is the movement by the Obama Administration to put the Environmental Protection Agency (EPA) in the "driver seat in terms of regulating virtually anything that impacts water quality," explained Don Parrish, senior directory of regulatory relations at the American Farm Bureau Federation.

An executive order published by the Administration in May 2009 called on federal agencies to take a leadership role in protecting the Chesapeake Bay and its surrounding wildlife habitats.

Parrish said the focus on the Chesapeake Bay could have significant implications on agriculture with nutrients and sentiments as the initial targets. He explained it is similar to a cap and trade approach where offsets would have to be found if it is over a certain threshold cap.

"It is almost stark that the approach puts water quality above all other economic and social impacts in a watershed if you're impaired," Parrish said. 

In a Dec. 29, 2009 letter, a draft report and action plan outlines expanding federal permit which may require smaller livestock farmers get permits and may go as far as objecting to any new permits for anything that could impact water quality.

In October, Sen. Benjamin Cardin, D., Md., and Rep. Elijah Cummings, D., Md., introduced legislation in both chambers that gives EPA the authority to promulgate any regulations and issue any permit needed to control pollution to meet water quality goals, notwithstanding any other provision of the Clean Water Act. (For an overview of the impact of the legislation, click here.)

In the Clean Water Act pollution is broadly defined to mean any man-made or man-induced alteration of the chemical, physical, biological, or radiological integrity of water. Therefore, this provision gives EPA the authority to regulate any activity that affects water quality, including the flow of water, any disturbance of land from development or farming, and any source of air deposition.

Parrish warned that if the EPA is able to establish pristine type of numbers, EPA could take Clean Water Act into a mode comparable to the Endangered Species Act which has direct implications on land use, could be just as litigious and may make it hard to create economic activity.

Farmer opposition

Farmers are not opposed to cleaning up the Chesapeake Bay—just to costly mandates that threaten their livelihoods.

At a Dec. 2 news conference during the Virginia Farm Bureau Federation’s 2009 Annual Convention in Richmond, representatives of the state’s largest agricultural organization vowed to oppose unaffordable, one-size-fits-all federal and state mandates.

“Reauthorization of the Chesapeake Bay Program is a good thing, and this organization believes in it,” said Wilmer Stoneman, VFBF associate director of governmental relations. “But when you add Total Daily Maximum Loads or give EPA the authority to regulate every molecule of water,” that’s unacceptable.

“These mandates are coming without enough financial assistance when farmers are already losing money,” said VFBF President Wayne F. Pryor. “We feel there is a better way to attack this issue than to close our gates and fallow our fields.”

Third-generation Amelia County dairy farmer Donna Kerr said she already has voluntarily implemented conservation practices on her 200-head dairy farm. She has planted riparian buffers and cover crops to protect water quality and prevent soil erosion. She also has fenced her cows out of the streams on her land.

“Farmers have always been and will always be stewards of the land, and a cookie cutter approach from the EPA just won’t work,” Kerr said.

Pryor and others said proposed legislation regarding cleanup of the Chesapeake Bay threatens current state and federal cooperative efforts to voluntarily install conservation practices on farms. It establishes a nutrient and sediment cap for all sources in the bay watershed.

“In its current form, the regulations will effectively cap everybody, everywhere on every thing,” Stoneman said.

Another point of contention is the way the EPA’s Chesapeake Bay computer model measures efforts to reduce pollution in the bay. That model takes none of farmers’ federal cost-share efforts over the past four years or voluntary measures into account.

“I’ve been living on equity this past year, and I’m just starting to see the light at the end of the tunnel,” Kerr said. “If the mandates are put in place, I can’t afford them.”

Leigh Pemberton, a Hanover County dairy farmer, said he also has voluntarily implemented conservation practices using cost-share money, but financially he has had his worst year ever.

“These [proposed] mandates will likely force me to go out of business,” Pemberton said.

Stoneman added that farmers are accused of being the largest non-point source contributor of nutrients in the bay and are being unfairly blamed for 50% of the pollution in the bay.

However, farmers have made great strides in reducing the amount of runoff from their farms into the bay. From1987 when bay cleanup efforts began until this year, Virginia farmers used 269,000 fewer tons of fertilizer, according to the Virginia Department of Agriculture and Consumer Services and the Virginia office of the National Agricultural Statistics Service.

“The Chesapeake Bay’s current condition is from 400 years of contact from humans,” Stoneman said. “We can’t overcome that in 30 years or 15 years or even 2 years. It’s going to take time and effort from everyone” to fix it.