Farmers Flock to Chesapeake Bay Court Hearing

10/13/2012 7:00 AM
By Chris Torres Staff Writer

HARRISBURG, Pa. — Even though lots of fieldwork has to be done and planning for next year is in full swing, several farmers found themselves in federal court recently, hearing a case they feel challenges the viability of farms in the region.

“This is an opportunity where EPA has been challenged. I was interested in seeing that challenge,” said Richard Pardoe Jr., who farms 475 acres in Milton, Northumberland County.

He and more than a dozen other farmers came out to hear oral arguments Oct. 4 in the Pennsylvania Farm Bureau’s challenge of the Environmental Protection Agency’s total maximum daily load, or TMDL, of pollutants for the Chesapeake Bay.

The case is being heard in U.S. District Court for the Middle District of Pennsylvania.

Farm Bureau, along with the American Farm Bureau Federation, sued EPA in early 2011, days after the agency finalized the TMDL for the entire 64,000-square-mile Chesapeake Bay watershed.

The TMDL sets specific nutri ent runoff allocations for states whose waters feed into the Chesapeake Bay and requires states to set and meet new two-year milestones for progress.

The goal is to have all pollution controls in place by 2025.

States have developed watershed implementation plans, or WIPs, detailing how they plan to meet their specific nutrient allocation targets.

The impact on the farming community is being felt in various ways. In Pennsylvania, for instance, there has been an increased effort to get more farmers to show proof they are meeting their legal requirements in documenting how they manage nutrients on the farm.

Certain areas have also been targeted by EPA as nutrient “hot spots,” such as the Watson Run and Muddy Run areas of Lancaster County, where inspections of farms have been under way.

But the Farm Bureau claims the agency overstepped its statutory authority given by the 1972 Clean Water Act by issuing the nutrient allocations in the first place.

Farm Bureau also claims the government didn’t allow enough public comment before the TMDL was finalized in late 2010 and that the modeling used to generate nutrient allocations is flawed.

Several ag organizations, including National Chicken Council, National Corn Growers Association, National Pork Producers Council, National Turkey Federation, The Fertilizer Institute and U.S. Poultry & Egg Association have joined the lawsuit as co-plaintiffs.

The case could have wide-ranging implications because it could limit the government’s ability to establish <\h>TMDLs or pollution diets on waterways across the country.

Presenting Farm Bureau’s case before Judge Sylvia Rambo, attorney Richard Schwartz argued that the Clean Water Act protected states’ rights to establish their own water quality standards and that Congress did not authorize EPA to expand its statutory authority over an individual state’s rights.

“What EPA has done is put themselves in the driver’s seat of allocation,” Schwartz said.

David Ross, another Farm Bureau attorney, attacked the modeling EPA used as the basis for its nutrient allocations, saying it is flawed because it can’t accurately measure nutrient loadings at the local level and that it acts as a backdoor way for the government to control local land planning.

Representing the federal government, Justice Department lawyer Kent F. Hanson said the development of the TMDL was the latest in a history of cooperation between the states and federal government dating back to 1983.

He pointed to the Chesapeake 2000 agreement, which set a 2010 goal of restoring the bay to a healthy level and if not, giving EPA the right to establish a TMDL.

Hanson denied claims that the government is trying to coerce states into certain land uses, pointing to the fact that the states generated their own plans to clean up their portion of the total nutrient allocation.

EPA approved the states’ WIPs and in some cases threatened backstop actions, including widening the scope of concentrated animal feeding operations, or CAFOs, which are considered point-source polluters and regulated by the federal government.

He also said the government actively engaged the public beyond its official 45-day public comment period on the TMDL through holding numerous public hearings and posting notices and documents available on the Internet.

“This talk of coercion is really unsupported by the facts,” Hanson said.

Jon Mueller, an attorney for the Chesapeake Bay Foundation, which joined EPA in the lawsuit along with several other environmental groups and some municipal wastewater authorities, also argued that cooperation between the states and federal government on the Chesapeake Bay was well-documented and that even the states acknowledged a TMDL might be necessary once they realized the 2010 goals set in the 2000 agreement weren’t going to be met.

“This wasn’t a top-down issue. This was a cooperative effort that had been going on from way back in the 1980s. What we see here is not coercion,” Mueller said.

Schwartz answered back on rebuttal, saying the federal government tried to use its authority to get a result and overstepped the rights of the states.

“These allocations are outside EPA’s statutory authority. This was a case of the government asserting its will to bring about a result,” he said. “Indeed, this case is about impact on people. How the people pay for cleaning up the bay is a decision Congress has given to the states.”

For Julie Flinchbaugh, who helps manage her family’s orchard in York — Flinchbaugh’s Family Orchard & Farm Market — attending the hearing was a way not only to represent how impactful government regulations are on farms, but also to show that the farming community does care about what it does to the environment.

She said she gets happy whenever a big rainstorm comes through and she can see clear, clean water coming off the fields, a result of the many improvements made by her family over the years.

“Most importantly, we feel the need to represent that this is important to ag and our businesses. I came to make sure we are standing up for ourselves,” Flinchbaugh said.

Don Ranck, owner of Verdant View Farm in Paradise, remembers being part of a committee 25 years ago that helped establish nutrient-management regulations on farms in the state. He said he’s spent thousands of dollars putting in various improvements on the farm to help control nutrient runoff.

“This is a very important thing to me. I just jumped at the opportunity when there was an opportunity to come see this case,” Ranck said.

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