As many farmers already know, the Environmental Protection Agency has a history of expanding its regulatory reach, even when it doesn’t necessarily have the authority to do so.
The most recent example of this overreach was the agency’s attempt to expand the definition of “Waters of the United States” under the Clean Water Act. Dubbed “WOTUS,” the expansion would have given the EPA control over any water that had a “significant nexus” to water traditionally under the EPA’s jurisdiction. Although it seemed silly, the question was whether this new interpretation would now include things like ditches and mud puddles.
WOTUS was by the EPA, but federal courts halted it until further judicial review is done. Congress recently passed legislation denouncing WOTUS, though President Obama vetoed the bill.
But now the EPA is working on implementing a project that makes WOTUS look like a cake walk.
What is the Chesapeake Blueprint?
Back in May of 2009, a newly inaugurated President Obama issued an executive order which essentially instructed the EPA to clean up The Chesapeake Bay. President Obama stated that the quality of the Bay’s water was not meeting state requirements, or the standards set forth in the Clean Water Act. He blamed the pollution in the Bay on nitrogen, phosphorus and sediment from “many sources, including sewage treatment plants, city streets, development sites, agricultural operations, and deposition from the air onto the waters of the Chesapeake Bay and the lands of the watershed.”
In December of 2010, the EPA responded by publishing the 280-page document entitled “Chesapeak Bay TMDL Document.” TMLD stands for “Total Maximum Daily Load,” which is the Clean Water Act’s term for the total amount of a given pollutant that a body of water may receive but still comply with the Act. In other words, it gives the maximum amount that any given body of water may have of a specific substance on any regular day. In this case, it should be the total amount of nitrogen, phosphorus, and sediment that the Bay has in it on any random day.
But the EPA took the executive order as another opportunity, much like its WOTUS rule, to expand its reach under the Clean Water Act. The EPA decided that its regulatory authority was not limited to just the Bay, but rather to upstream tributaries all the way up to drainage ditches, and even to land from which rainfall might find its way into ditches and tributaries. To accomplish this, the EPA divided the entire Bay watershed into 92 smaller segments. Within each of those smaller geographic subsections, it specifies exactly what source each substance can come from.
As American Farm Bureau explains: “As a practical matter, the power to set numeric limits for sediment and nutrients by source type within specific geographic areas equals nothing short of the power to allow farming here, but not there, building here, but not there.”
In other words, it gives the EPA to get down to the local level and determine how and when land can be used for certain things – all in the name of clean water. As explained in the Washington Examiner: “It would have the federal government taking on zoning powers reserved to states, counties and towns.” Furthermore, this expansion of power could mean that more and more activities are subject to federal fines and may require federal permits. For example, small animal operations have so far been exempt from needing permits through the EPA, but the TMLD document could change that.
President of American Farm Bureau, Bob Stallman, stated: “It’s about whether EPA has the power to override local decisions on what land can be farmed, where homes can be built, and where schools, hospitals, roads and communities can be developed. This is nothing less than federal super-zoning authority. As much as we all support the goal of achieving a healthy Chesapeake Bay, we have to fight this particular process for getting there.”
To put things in perspective, the Chesapeak Bay watershed covers around 64,000 square miles. It includes most of Virginia, West Virginia, Maryland, Delaware, Washington DC, Pennsylvania, and New York. This would be a huge amount of land that the EPA would now essentially control, including a large number of farmed acres.
Why Does It Matter to Me?
But, you probably don’t live in the Bay area. You probably don’t live in the Bay watershed either. If the EPA wants to clean it all up and plans on imposing local control over land use, then so be it.
But, please, did you really think the EPA would stop there? Yeah, right…
After watching the EPA vehemently work to implement the WOTUS rule, we know that they’re itching to expand their regulatory authority across the map. President Obama’s executive order set them up to do so. The plan he asked the EPA to develop was supposed to be designed so that it “can be replicated in efforts to protect other bodies of water.”
Consider this: every single inch of land in the United States is part of one watershed or another. Every. Single. Inch. Once the Chesapeake Bay plan is implemented, the EPA can start expanding across the country and continue until it has reached every corner of our country. In essence, the TMDL gives the EPA the power to control land use in every part our nation.
Every land use decision across our country, including whether you’re allowed to continue farming your land, will be brought under federal control.
Here’s another fun part to mention: initially, local and state governments will be allowed to control how the plan is implemented, as long as they do so according to the EPA’s TMDL plan. However, if they fail or don’t follow the plan as the EPA as written it, that power will be stripped away. The EPA will then walk in and have direct control over enforcing the plan in every single part of the watershed.
What’s Being Done About It?
Shortly after the EPA issued its TMDL document in response to the president’s executive order, American Farm Bureau filed a lawsuit in Pennsylviania to stop implementation of the new regulations. Farm Bureau was joined by several other organizations, most notably the National Association of Home Buildings, the National Chicken Council, the National Corn Growers Association, and the National Pork Producers Council. Farm Bureau argued that the new regulations would exceed the EPA’s authority under the Clean Water Act.
Unfortunately, the district court deferred to the EPA, finding their interpretation of the CWA was reasonable. The Third Circuit Court of Appeals agreed.
On November 16, 2015, Farm Bureau and the other parties filed a petition asking the United States Supreme Court to hear the case. On February 19, 2016, the Supreme Court will decide at its weekly conference whether to hear Farm Bureau’s petition. You can find all the briefs filed here.
If the Supreme Court chooses not to hear the case, this will clear the way for the EPA to start rolling out its new regulations in the Chesapeake watershed. But it won’t stop there: the executive order made it clear that this plan should be replicated throughout the country. In essence, without the Supreme Court’s review of this case, the EPA will be handed regulatory power for restricting land use across an entire watershed and, ultimately, control over every land use decision that could affect anything the EPA considers WOTUS (which, these days, is pretty much everything).
How Can I Help?
American Farm Bureau is urging people to make some noise about this issue. Historically, the Supreme Court has ruled on cases of interest to the American people. But it has to be legitimate interest and it needs to be in more traditional mediums.
So, one of the suggestions is to write letters to the editor. Whether its your local newspaper, or a larger newspaper, this is an excellent way to get people talking. If you’ve never written a letter to the editor, it’s total easy! Making it even more easy is this video by Elizabeth Held highlighting how to write the letter and how to make sure it gets published.
I will be sure to stay up on this issue and let you know what the Supreme Court decides.