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Warning Lights Coming From EPA For Ag

DC Dialogue

Court case on Chesapeake Bay TMDL could empower agency as well as first look into what EPA will define as navigable waters.

Published on: September 20, 2013

If the Environmental Protection Agency wasn't already on the radar of the agricultural community, it is now with several recent activities reconfirming the dangerous road EPA could take regarding regulations.

A federal judge in Pennsylvania ruled Sept. 13 that the Chesapeake Bay Total Maximum Daily Load (TMDL) established by EPA is not only legal, but also that the EPA has the right to oversee how the states meet the water quality standards established under the TMDL plan.

Agricultural groups, led by the American Farm Bureau Federation, had fought in the courts EPA's implementation of the pollution diet because it wrongly puts federal agency staff in charge of intensely local land-use decisions.





The judge's discourse was troublesome in how it justified EPA's role in those decisions.

"Although nothing in the [Clean Water Act] specifically authorizes EPA to take this holistic, or watershed approach, it is equally true that nothing in the CWA prohibits such an approach," said U.S. Court Judge Sylvia H. Rambo.

In laymen's terms, if Congress doesn't tell EPA what not to do, it is okay for them to do it. "EPA gets to make rules up as they go along because Congress didn't tell them they couldn't," said Don Parrish, senior director of regulatory affairs at AFBF.

Parrish voiced deep reservations for the ruling, but also characterized the judge's dissent as offering no original thinking, but instead took the briefs from the Department of Justice and EPA and formulated it into her opinion.

Farm Bureau must decide within 60 days whether it will appeal the latest decision, which has many of the likely attributes to come before the Supreme Court because of the broad implications it can have on farmers in watersheds across the country, Parrish added.

Navigable waters

One of the other top-of-mind issues for farmers regarding EPA is how it will define navigable waters and regulate those under the Clean Water Act. Agricultural bodies have typically been considered exempt, but the rule being circulated interagency has folks at the U.S. Department of Agriculture and Department of Transportation concerned about the expansiveness.

EPA said that recent decisions of the Supreme Court have underscored the need for EPA and the public to better understand the connectivity or isolation of streams and wetlands relative to larger water bodies such as rivers, lakes, estuaries, and oceans, and to use that understanding to underpin regulatory actions and increase certainty among various CWA stakeholders.

In EPA's announcement, the agency said that exemptions will continue for agricultural stormwater discharges, return flows from irrigated agriculture, normal farming and ranching activities, construction and maintenance of farm or stock ponds or irrigation ditches, upland soil and water conservation practices and construction or maintenance of farm roads.

Parrish said farmers will end up having to fend for themselves if EPA comes knocking with additional regulations. Even though EPA is saying it will only regulate what is aquatic in nature, the Army Corps of Engineers was directed by EPA to make it much more encompassing. He said the U.S. Department of Agriculture and Department of Transportation have some concerns about how broadly the rule is written.

Parrish challenged agriculture members need to have their voices heard and push EPA to regulate only what is aquatic in nature.

"This is huge. This is a land grab is what it is," Parrish stated. If farmers aren't okay with having those areas where water exists following a rainfall, they need to get involved by contacting members of Congress and the Administration.

Stonewalled on climate policy?

Also this week a House Energy and Commerce Committee subcommittee failed to draw much attendance, or seemingly much attention, at a planned marathon climate change hearing set for Sept. 18. Of 13 federal officials requested to testify, 11 declined, leaving just the Secretary of Energy Ernest Moniz and the Environmental Protection Agency (EPA) administrator Gina McCarthy participating. Predictably, Energy and Power Subcommittee leaders expressed disappointment at this turnout and the lack of information being provided on climate policy, which is a central feature of the administration's energy policy.

Committee Chairman Emeritus Joe Barton (R., Texas) criticized that neither McCarthy or Moniz, nor the other 11 agencies, answered the straightforward questions contained in the committee’s August 6, 2013 letter.

“We asked nine questions, and I asked the staff if your agencies had answered these questions, and I am told they had not,” said Barton. “The point I’m trying to make is we’re trying to have a good faith effort here to have a real dialogue, but in order to have a dialogue, we have to have the facts and we’re being stonewalled. Which means the American people [are] being stonewalled.”