Feb. 29 resulted in a major leap backward for U.S. farmers and ranchers—and it will take years to fully grasp the consequences. On that day, the U.S. Supreme Court allowed EPA to proceed with its Total Maximum Daily Load (TMDL) plan for the Chesapeake Bay watershed. By declining to hear the case, the Supreme Court has cleared the way for EPA to apply the Bay TMDL plan as a blueprint for other major watersheds, including the Mississippi River watershed.
There is no denying water quality is a major issue in the U.S. Excess nutrients and sediments form major hypoxic dead zones that choke out aquatic life in many of our important estuaries. There is also no denying agriculture is one of several major sources of pollutants harming our waterways. It is only fair agriculture shoulder the load for its fair share of pollutant reduction when it comes to cleaning up our waterways. However, EPA’s top-down approach in the Bay TMDL does not bode well for producers in other watersheds.
The plain text of the Clean Water Act (CWA) does not hint at EPA’s authority to carry out comprehensive, multistate pollutant reduction plans. Instead, the CWA primarily targets point sources of pollution, such as factories or municipal water treatment plants, by placing hard limits on the quantity of pollutants these sources can release into waterways. However, if reductions in pollutants from point sources are not sufficient to meet water quality standards, the CWA calls on states to develop TMDLs for individual waterways as well as implementation plans to reduce both point sources and nonpoint sources of pollution to achieve water quality goals. TMDL plans oftentimes impact agriculture because most farm operations, with the exception of CAFOs, are considered nonpoint sources of pollution.
The CWA provides state governments with the exclusive authority to regulate nonpoint sources of pollution. This makes sense because state governments are more adept and flexible at handling the local land use issues that contribute to nonpoint source pollution. Even in the case of large interstate water bodies, the CWA calls on state governments to work together through interstate management agreements to achieve water quality standards. However, frustrated by the lack of progress in cleanup efforts, EPA largely ignored the states’ role in the Bay TMDL.
With the Bay, EPA established a TMDL for the entire 64,000 square-mile watershed. It also allocated the allowable pollution among individual point sources and types of nonpoint sources (land uses) within the watershed. Then, it ordered states to develop implementation plans to reduce pollutants from the point and nonpoint sources within their borders based on the allocations. EPA’s allocation model heavily favored reducing pollutants attributed to farming. As a result, EPA estimates 600,000 acres of cropland in the Bay watershed will need to come out of production. Land use decisions are typically the prerogative of state and local governments. However, EPA’s TMDL allows a federal bureaucracy to overrule these typically local decisions.
The American Farm Bureau Federation and other groups sued EPA to stop the Bay TMDL on the basis it went beyond CWA’s restrictions on federal authority. However, through a maze of tortured logic, a federal district court and the Third Circuit Court of Appeals upheld EPA’s plan. The last best chance to stop EPA’s overreach was the U.S. Supreme Court. Now, that ship has set sail for the Mississippi River.
This column is not a substitute for legal advice.