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Chesapeake Bay lawsuit is about proper path to a clean environment

Published Mar. 23, 2011 | Discuss this article on Facebook
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Buckeye Farm News

A lawsuit filed by the American Farm Bureau Federation is challenging the approach that the U.S. Environmental Protection Agency is taking to regulate pollution in the Chesapeake Bay.

“We all want a clean and healthy Chesapeake Bay,” said AFBF President Bob Stallman when the lawsuit was announced in January. “This lawsuit is about how we get there. Farm Bureau believes EPA’s ‘diet’ for the Chesapeake is dangerous and unlawful.”

AFBF says the agency is overreaching by establishing a Total Maximum Daily Load (TMDL) or so-called “pollution diet” for the 64,000 square mile area, regardless of cost. The TMDL dictates how much nitrogen, phosphorous and sediment can be allowed into the bay and its tributaries from different areas and sources.

Farm Bureau has three basic objections to the TMDL rule.

1. First, AFBF believes that the rule unlawfully “micromanages” state actions and the activities of farmers, homeowners and businesses within the six-state Chesapeake Bay watershed. EPA’s plan imposes specific pollutant allocations on activities such as farming and homebuilding, sometimes down to the level of individual farms. The Clean Water Act, the AFBF action contends, 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 in the states.

2. Second, to establish the TMDL, EPA relied on inaccurate assumptions and on a scientific model that EPA itself admits was flawed, AFBF noted. AFBF claims that the TMDL violates the Administrative Procedures Act’s prohibition of “arbitrary and capricious” agency action.

“There is a basic level of scientific validity that the public expects and that the law requires,” explained Stallman. “That scientific validity is missing here, and the impact could starve farming and jobs out of the region.”

3. Third, AFBF asserts that EPA violated the administrative requirement that agencies allow meaningful public participation on new rules. The suit alleges that EPA failed to provide the public with critical information about the basis for the TMDL and allowed insufficient time (45 days) for the public to comment on the incomplete, but highly technical, information that EPA did provide.

“Our laws require agencies to show the public what their actions are based on, so that the public can tell the agencies if they are getting it wrong,” Stallman added. “In this instance, EPA failed to provide critical information.”

EPA finalized the TMDL Dec. 29, despite documented discrepancies in the data it used to establish the TMDL, AFBF said. The six states in the Chesapeake Bay watershed (Delaware, Maryland, New York, Pennsylvania, Virginia and West Virginia) must now follow very detailed watershed plans or else EPA could block necessary permits and cut federal funding to the states.

“Farmers and ranchers already are taking real, on-the-ground actions every day to improve water quality, actions that have been shown by USDA reports to reduce soil erosion and provide other environmental benefits,” Stallman said.

“Those actions will continue, regardless of what happens with this lawsuit.”

“We will take our complaint to the courts,” Stallman added, “while farmers continue the work of caring for our natural resources and feeding the world.”



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