Flawed EPA plan burdens states, violates federal law

January 20, 2011|By Bob Stallman

The American Farm Bureau recently filed a lawsuit against the U.S. Environmental Protection Agency challenging the agency's "pollution diet" for this 64,000-square-mile watershed. The response of some critics, including this publication's editorial board, might lead readers to believe that the Farm Bureau is opposing the cleanup of the Chesapeake Bay. Nothing could be further from the truth.

Despite the rhetoric of critics, the Farm Bureau's lawsuit is not about whether to clean up the bay. Farmers remain committed to working to achieve clean water for the Chesapeake. A recent draft study by the Natural Resource Conservation Service found that farmers were actively implementing erosion controls on about 96 percent of producing cropland acres in the watershed. As a result of these practices, the Conservation Service found that farmers were reducing sediment contributions to the region's rivers and streams by 64 percent, nitrogen by 36 percent, and phosphorus by 43 percent. The Farm Bureau and its members will continue to work with the states and other stakeholders to adopt practical solutions for a healthy Chesapeake Bay. Those efforts have nothing to do with this lawsuit.

This lawsuit is about a particular plan — officially, the Chesapeake Bay Total Maximum Daily Load for nutrients and sediment — that violates federal law in three ways: it violates the Clean Water Act by binding states to a federally imposed prescription and timeline; the mandatory "load reductions" calculated by the EPA have no valid scientific basis and therefore violate the Administrative Procedure Act (APA); and the EPA did not allow adequate time for the public to respond to its highly technical proposal (also in violation of the APA).

The Clean Water Act requires that states, not the EPA, determine how to achieve clean water. Congress wanted it that way for a reason: because states are more accountable to the public for balancing water quality goals with other goals, such as healthy local economies. By codifying into federal law the EPA's own "allocations" of pollutant loading for businesses, towns, homeowners and farmers, the EPA has bound the states and the public to a particular "diet" with no regard for the economic consequences.

No one knows the full economic cost associated with the EPA's Total Maximum Daily Load, because the EPA has refused to make that analysis after repeatedly promising to do so. We do know that the cost will be great. Maryland, for example, has estimated costs as high as $10 billion from 2012 to 2017. With respect to agriculture, the EPA projects that roughly 20 percent of cropped land in the watershed will have to be removed from production.

Even with the stakes so high, the EPA relied on incorrect assumptions and flawed scientific modeling to calculate its Total Maximum Daily Load. For example, the EPA's estimate of the amount of sediment in the Bay caused by agriculture in 2009 is nearly triple the amount calculated by the National Resource Conservation Service. Such highly questionable figures were fed into a model that the EPA itself admits was flawed. In independent testing, for example, the EPA's "watershed model" produced results that varied by as much as 36 percent when the model was simply run using different machines. The EPA promised to improve its modeling but hurried to finalize an arbitrary "diet" rather than take the time to correct such glaring defects.

Finally, the EPA rushed out its highly technical plan without providing sufficient information or time for the public to check its math. The EPA omitted critical information from its proposal — and then allowed just 45 days for the public to digest and respond to the incomplete information it provided.

The American Farm Bureau is not the only group voicing these concerns. Twenty-nine other farming, forestry and business groups have expressed similar objections. The Farm Bureau is simply the first to file a lawsuit. Whether others will follow has little to do with the merits of this legal challenge but much to do with the considerable financial and public-relations risk of taking on litigation that others will be quick to mischaracterize as an assault on clean water.

The Farm Bureau has chosen to take that risk because it is the right thing to do. The stakes are too high, and the goal of clean water is too important, not to do this right.

Bob Stallman, president of the American Farm Bureau Federation, is a rice producer from Columbus, Texas.

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