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WASHINGTON—The American Farm Bureau Federation filed a lawsuit Jan. 10 in federal court to block the implementation of the U.S. Environmental Protection Agency’s new "nutrient diet" regulatory plan for the Chesapeake Bay watershed.
Finalized at the end of 2010, the plan dictates how much nitrogen, phosphorous and sediment will be allowed into the bay from sources such as sewage treatment plants, manufacturing, small businesses, residential areas and farm fields.
"We’re not opposing the cleanup of the Chesapeake Bay. What we are doing is saying the way this particular program is being used is unlawful," said Ellen Steen, AFBF general counsel. "There are three fundamental problems: EPA is micromanaging in excess of its authority under the Clean Water Act; its numbers are scientifically invalid; and its rush to judgment failed to allow meaningful public participation."
The EPA’s regulatory program relies on establishing total maximum daily loads, or TMDLs, for each tributary waterway in the six-state bay watershed. AFBF believes that unlawfully micromanages state actions and the activities of farmers, homeowners and businesses. The EPA's plan imposes specific pollutant allocations on activities such as farming and homebuilding, sometimes down to the level of individual farms and backyards.
The AFBF lawsuit, filed in Harrisburg, Pa., contends that the Clean Water Act requires a process that allows states to decide how to improve water quality and take into account the economic and social impacts on businesses and communities.
The suit also contends the EPA relied on inaccurate assumptions and on a scientific model that it admits was flawed to establish the TMDL limits, therefore violating the Administrative Procedures Act's prohibition of "arbitrary and capricious" agency action.
"We filed suit to prevent the Chesapeake Bay regulations from setting a national precedent in water pollution policy," Steen said. "The basic provisions of law that EPA claims to be relying on here apply nationally. So if EPA can take this action in the Chesapeake, we can’t see any reason why they wouldn’t take it in other areas. And, in fact, EPA has sent very strong signals that it intends to follow a similar approach in areas like the Mississippi River watershed.
"We’re very concerned about this spreading."
Prior to the issuance of its TMDL plan, the EPA accepted a watershed implementation plan submitted by the administration of Virginia Gov. Bob McDonnell. In less than a year’s time, stakeholders from all sides of the issue worked with the McDonnell administration to develop a plan to address the EPA’s TMDL limits.
"We are for clean water and a thriving Chesapeake Bay; our farms can’t be sustained without it," said Wayne F. Pryor, president of Virginia Farm Bureau Federation. "But requirements such as these have to be achievable and economically feasible. EPA’s expectation for the amount of work that needs to be done is exaggerated, determined in an accelerated and arbitrary way, and without all the facts. The legal action taken by American Farm Bureau is the logical next step to address our concerns. Our entire economy is at stake. Everyone will be touched, so we have to get this right no matter what it takes.
"We believe we have a good state plan; we thank the governor and his staff for working with us and others to mitigate these mandates for all Virginians," Pryor added. "However, the goals for implementation or loadings set by EPA are unrealistic and cannot be reasonably met."
Contact Don Parrish, AFBF senior director of regulatory relations, at 202-406-3667 or Wilmer Stoneman, VFBF associate director of governmental relations, at 804-290-1024.
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