Last week, The Fertilizer Institute became the latest group to join a six-member coalition in filing a notice to appeal U.S. District Court Judge Sylvia Rambo's ruling in favor of USEPA. Her Middle District of Pennsylvania decision would give EPA a green light to enforce its Total Maximum Daily Load mandates for nitrogen, phosphorus and sediment in the Chesapeake Bay watershed.
The 3rd U.S. Circuit Court of Appeals in Philadelphia is the next stop for the lawsuit filed in 2011. The suit was initially filed challenging the integrity of EPA's watershed model assumptions for generating the TDMLs. They remain in question. Even Pennsylvania environmental officials acknowledge that no credit was assumed for voluntary farmer actions in EPA's development of "pollution diets" or mandatory TMDLs for micro-watersheds.
So far, TFI is the latest to join the coalition that includes American Farm Bureau Federation, Pennsylvania Farm Bureau, National Pork Producers Council, National Corn Growers Association, U.S. Poultry and Egg Association and the National Association of Home Builders. The coalition seeks an appeal to preserve states' ability to set land use policy and to determine how water quality goals are achieved.
Nationwide implications of 'wrong science'
If the Sept. 13 ruling is upheld, EPA's authority under the Clean Water Act will expand, giving it broader leeway to dictate land use and development decisions in the Chesapeake Bay and watersheds nationwide. "Congress did not intend to grant EPA limitless power to dictate how private land can be used under the Clean Water Act," contends Pennsylvania Farm Bureau President Carl Shaffer.
"Congress specifically reserved land use decisions for state and local authorities, not EPA," he adds. "We're appealing the court decision, because it would provide EPA with unbridled power to make decisions that could negatively impact farmers, homeowners, municipalities, school districts and businesses within the watershed."
PFB notes that farmers are concerned about EPA's regulatory plan, referred to as a pollution diet. It would make it virtually impossible for farmers to grow their business, severely limiting next-generation opportunities to join the family farm, says Shaffer. "Farmers, local governments and a wide variety of other landowners would be subject to the whim of EPA before making even the most basic decisions about their property."
The National Corn Growers Association strongly supports the need to protect water quality. But as NCGA President Martin Barbre points out, "We don't support a wrongfully decided case when it has a profoundly negative impact on agricultural production and innovation.
"We continue to believe the policies and science behind Chesapeake Bay TMDL are wrong, and that it goes beyond the scope of Clean Water Act authority. We hope the Third Circuit Court of Appeals will reconsider these arguments and ultimately provide state and local jurisdiction more flexibility to work with agriculture in meeting water quality goals."
TFI President Chris Jahn adds that a clean, healthy Chesapeake Bay is a goal shared by all of the agricultural community. "Through the use of 4R nutrient stewardship – using the right fertilizer source, at the right rate, at the right time and in the right place – we can achieve cropping system goals and protect water quality."