Sabers rattled once more over the Chesapeake Bay cleanup effort as the American Farm Bureau Federation filed suit on Jan. 10, challenging the TMDL or total maximum daily load component of the Chesapeake Clean Water and Ecosystem Restoration Act of 2010.

The latest of a number of complaints was filed by the American Farm Bureau Federation and one of its members, the Pennsylvania Farm Bureau, in a federal court in Harrisburg, Pa.

Currently, the federal EPA has the authority under the Clean Water Act to implement maximum daily levels for nitrogen, phosphorus and sediment. Farmers in Virginia and other affected states contend the data used to establish TDML (total daily maximum loads) is seriously flawed.

Among other criteria, farmers and farmer advocate groups disagree with EPA’s contention that 15 percent of farmland bordering streams that feed into the Chesapeake Bay are under conservation-tillage. Virginia farmers contend over 90 percent of the acreage in question is in conservation-tillage, much of it in long-term no-till.

Farm bureaus in each of the six states impacted by Chesapeake Bay cleanup have challenged various components of the federal act, claiming the federal government’s speed-up of the Chesapeake Bay cleanup will force some farmers out of business.

Mandatory fencing of all streams that feed into any stream that eventually ends up in the Chesapeake Bay is another sticking point for farmers. The high cost of fencing — the Virginia Farm Bureau says $30,000-$40,000 — agriculture support organizations claim would put dozens of family-owned dairy, swine and cattle operations out of business.

Were costs exaggerated?

In response to recent publication of the fencing issue, Libby Norris, Virginia Watershed Restoration Scientist for the Chesapeake Bay Foundation’s Richmond, Va. office says, “The Chesapeake Bay Foundation (CBF) is concerned that recent statements made by the Virginia Farm Bureau and quoted by Southeast Farm Press exaggerate the cost to the average farmer for helping clean up the Chesapeake Bay.

The Farm Bureau’s cost estimates (1) fail to recognize the financial benefits that stream fencing offers livestock producers; (2) appears to reflect the most costly scenarios, i.e., farmers who to date have taken few steps to reduce farm runoff; and (3) neglect the significant funding assistance provided by popular state and federal cost-share programs that defray most of the out-of-pocket expenses for constructing farm conservation practices.”

Ms. Norris says the following agencies and contact personnel could provide cost sharing funds to help farmers comply with the fencing component of the proposed legislation:

• Jack Bricker, Natural Resources Conservation Service (USDA-NRCS), 1606 Santa Rosa Road, Suite 209, Richmond, Va. 23229.

• David Johnson, Virginia Department of Conservation and Recreation, 203 Governor Street, Suite 206, Richmond, Va  23219.

• Low interest loan program: David Paylor, Virginia Department of Environmental Quality, 629 East Main Street, Richmond, Va. 23218.

The Jan. 10, American Farm Bureau Federation suit challenges three components of the proposed TDML rule:

• 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 home-building, 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.

• 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. 

• AFBF asserts that EPA violated the 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.

"We all want a clean and healthy Chesapeake Bay," says AFBF President Bob Stallman. "This lawsuit is about how we get there. Farm Bureau believes EPA's 'diet' for the Chesapeake is dangerous and unlawful.

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

EPA finalized the TMDL on Dec. 29, 2010 despite documented discrepancies in the data it used to establish the TMDL, AFBF said. The six states in the Chesapeake 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 says. "Those actions will continue, regardless of what happens with this lawsuit."

At stake are billions of dollars in the Chesapeake Bay border states. Cost estimates for the 15 year program run the gamut, depending on which economist makes the claim. Virginia officials claim their cost could exceed $7 billion, while Pennsylvania contends their state tab could top $2 billion.

These staggering costs are miniscule compared to the cost nationwide, if the Chesapeake Bay cleanup becomes a model for watersheds across the U.S.

rroberson@farmpress.com