OP-ED: JUDGE RAMBO TAKES ON AMERICAN AGRICULTURE
Oct. 29, 2013
by Gary Baise, Attorney At Law
"The ecological and economic importance of the Chesapeake Bay is well documented ... And yet, nutrient pollution and sedimentation remain a critical concern." So says Judge Sylvia H. Rambo, U.S. District Court judge in Pennsylvania.
Judge Rambo, in a 99-page opinion filed on Sept. 13, 2013, challenged and dismissed the arguments of the American Farm Bureau on behalf of farmers saying "the court concludes that the framework established by the bay partnership in developing the bay TMDL is consistent with the provisions of the CWA (Clean Water Act) and APA (Administrative Procedures Act)."
Judge Rambo's decision changes the playing field for American agriculture.
The opinion says that the court must give deference to EPA's unlimited interpretation of its power pursuant to the CWA. EPA is able to use scientific models which apparently have major flaws and is excused for using those models. EPA can work for years on a proposed regulation and only give farmers 45 days to comment. And to add insult to injury, EPA does not have to make an effort to ensure that all documents are in the file to review before issuing a new regulation which is law.
Judge Rambo's opinion is worth reading by all who engage in commodity crop and livestock agriculture.
The legal dispute centers on arcane sections of the CWA. The AFBF brief makes a valiant effort to argue major legal complexities involving terms you have not heard of. Total Maximum Daily Loads (TMDLs), Waste Load Allocations (WLAs) and Load Allocations (LAs) constitute large portions of the AFBF brief of 81 pages. These terms are a critical part of regulating nitrogen, phosphorus and sediment entering the Bay.
Nutrient pollution requires a "pollution diet," according to EPA.
Lest you think this is only a Chesapeake Bay issue, you need to think again. Judge Rambo says EPA, in consultation with states, can tell the states how many pounds of nutrients can run into any state's water bodies.
Specifically the Chesapeake Bay TMDL tells urban areas, waste treatment plants and farmers how many pounds of nitrogen and phosphorus will be allowed into state streams and waters. For example, EPA's TMDL of 186,000,000 pounds of nitrogen, 12,500,000 pounds of phosphorus and 6,450,000,000 pounds of sediment per year will be allowed to be discharged in to the Chesapeake Bay.
Sixty percent of the controls on point and nonpoint sources need to be completed and implemented by 2017 to assure clean water in the Chesapeake Bay.
What are TMDLs?
A TMDL is applied when water quality standards approved by the state and EPA are not being met. An example is dissolved oxygen which is needed for fish to survive. A WLA may be imposed on a point source such as a factory or sewage treatment plant to help meet the water quality standard. A Load Allocation is also part of a TMDL, used to predict inflows of nutrients from nonpoint sources. Thus, a TMDL represents the cumulative total of pollution loading from point sources, and nonpoint sources such as a farm and natural background sources.
The court says it recognizes that "nonpoint sources of pollution (i.e. agriculture) are a major contribution to water quality problems." The farmers' brief attempts to argue that TMDLs should not be divided between WLAs and LAs. This argument was not accepted by Judge Rambo.
EPA uses models to determine nutrient loads entering the Bay. The farmers' brief argues that EPA failed to provide the farmers with key components of models used to estimate sediment and nutrient loads coming into the Bay from agriculture.
Judge Rambo dismissed the argument.
Other models EPA uses simulate what pollutants are deposited into the Bay. The farmers' brief claims, "EPA failed to provide the public with complete and accurate documentation for the model." Judge Rambo said that EPA's actions were not arbitrary and capricious and found "...no support of Plaintiffs' argument that EPA stretched the Watershed Model's capabilities too far."
You get the picture. The legal arguments advanced in the farmers' brief were summarily rejected by Judge Rambo in her first 94 pages.
In the last four pages of her opinion the court actually responded to the last six pages of the farmers' brief, which cited to USDA data regarding what is actually going on with American agriculture and the enormous effort undertaken by most production facilities to keep nutrients on their property for crop use, and to prohibit soil from leaving the properties.
For example, the court was told that EPA models are incorrect and therefore, nutrient and sediment amounts running off farms is incorrect. NRCS data apparently shows that 88 percent of the 4.38 million acres use conservation tillage practices. Just 7 percent use conventional tillage.
"Despite NRCS's findings, EPA's models assume that 50% (instead of 7%) of all cultivated crops use conventional tillage,..." If these numbers are correct, EPA is clearly miscalculating the amount of nutrients and sediment coming from Bay agriculture.
The Chesapeake Bay TMDL program is coming to the Midwest and the Mississippi River Basin. Judge Rambo bought all of EPA's and the environmentalists' legal arguments. It appears the court did not even accept the few facts which were presented to her by the farmers' brief.
Gary H. Baise is a principal at OFW Law (Olsson Frank Weeda Terman Matz P.C.)
This article first appeared in Farm Futures magazine. The opinions presented here are expressly those of the author. For more information, go to www.OFWlaw.com.