Washington Insider -- Wednesday

No New Review of Chesapeake Region's TMDL Approach

Here’s a quick monitor of Washington farm and trade policy issues from DTN’s well-placed observer.

Senate Ag Panel Approves Roberts’ GMO Labeling Preemption Bill

A GMO food labeling preemption bill passed the Senate Ag Committee by a vote of 14 to 6 with three Democrats on board. The measure is expected to go to the Senate in the next few weeks, with supporters saying they have the needed 60 votes to act on the bill.

Democrats supporting the measure were Sens. Amy Klobuchar of Minn., Heidi Heitkamp of N.D., and Joe Donnelly of Indiana. Additional Democrats are expected to support the bill when it reaches the Senate floor, which bill proponents say will happen in the coming weeks.

Outlining his rationale for introducing the bill, Senate Ag. Committee Chairman Pat Roberts, R-Kan., said, “It is clear that what we’re facing today is not a safety or health issue. It is a market issue.” Roberts noted that “this is really a conversation about a few states dictating to every state the way food moves from farmers to consumers in the value chain.”

The bill is needed “to ensure that the national market can work for everyone, including farmers, manufacturers, retailers, and consumers,” Roberts continued. He stressed that without a national biotech labeling standard, “the cost to consumers could total as much as $82 billion annually – approximately $1,050 per hardworking, American family,” according to a recent study.

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Supreme Court Turns Away EPA Chesapeake Bay Plan Challenge

The Supreme Court rejected a petition by the American Farm Bureau Federation (Farm Bureau) which challenged the legality of the Environmental Protection Agency’s (EPA) cleanup plan to restore the Chesapeake Bay, effectively affirmed lower court rulings that upheld the plan.

Opponents of the plan, including Farm Bureau, contended that the EPA overstepped its authority by setting a total maximum daily load (TMDL) for nitrogen, phosphorus and sediment entering the bay. Specifically, opponents said the prescriptive measures for meeting the TMDL usurped authority traditionally left to states.

No states which were affected by the Chesapeake Bay plan had objected to it, the EPA noted. Twenty-one other states, along with 92 members of Congress had joined the Farm Bureau in challenging the plan’s legality. The Farm Bureau admitted that their challenge is effectively dead and affected states announced that they will move forward with implementing the plan.

States affected by the Chesapeake Bay plan are New York, Delaware, Pennsylvania, Maryland, Virginia and West Virginia. The District of Columbia is also a party to the plan and its implementation.

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Washington Insider: No New Review of Chesapeake Region’s TMDL Approach

There is a sense of accomplishment in many ag circles now regarding efforts to limit EPA’s and the Corps of Engineers’ rules for crop and livestock producers. At the same time, it is worth noticing that increasingly restrictive programs are being imposed in some highly polluted areas like the Chesapeake Bay area and these include tighter future regulations for agricultural operations in those regions.

For example, this week the US Supreme Court declined to hear a petition by the American Farm Bureau Federation challenging the legality of a cleanup plan to restore the Chesapeake Bay. The eight justices, without comment, let stand the rulings of a federal district court and the U.S. Court of Appeals for the Third Circuit in Philadelphia that upheld the total maximum daily load approach to defining nutrient reduction goals for the bay.

The farm bureau had challenged the plan on grounds that the EPA overstepped its authority—that, the measures it proposed are “too prescriptive” and should be left to the seven states and the District of Columbia that make up the Compact area. The AFBF had been joined by twenty-one states and 92 members of Congress. The challenge focused specifically on the TMDL requirements for nitrogen, phosphorus and sediment that the EPA calculated were necessary to prevent further impairment.

The EPA had noted in its brief that none of the affected states was objecting to the overall bay restoration strategy, which they had helped craft.

EPA said was pleased with the Court’s decision not to hear the challenge and that this “confirmed that EPA’s action is authorized by and consistent with the Clean Water Act…We can now continue to build on the progress made in restoring local waters and the Bay.”

At issue is the TMDL calculation that EPA is using for the Chesapeake Bay Watershed that determines the amount of pollutants each point source, such as a wastewater utility and each nonpoint source, such as a farm, may discharge into a body of water and still meet water quality standards.

In the Chesapeake Bay area, the 2010 TMDL included point and nonpoint source limitations on nitrogen, phosphorous, and sediment for 92 segments of the bay identified as over-polluted. It also allocated those limits further to specific point sources and nonpoint source sectors, a move that the farm bureau and others argue is a federal takeover of local land-use decisions.

After the decision, AFBF general counsel, Ellen Steen, told Bloomberg that the bureau had no plans to seek a legislative fix and that, for now, the case is over. Congress “spoke quite clearly already in the Clean Water Act,” Steen said. “Our problem is with an agency and two lower courts that have declined to adhere to the plain words written by Congress.” Steen says AFBF will watch the EPA actions closely and oppose what she called its abuse of its power.

Rena Steinzor, environmental and administrative law professor at the University of Maryland in Baltimore, told Bloomberg that “The Supreme Court’s refusal to consider an appeal means the TMDL will continue to move forward and we don’t have to worry about its legality. We can focus on the difficulty of implementing it now,” she said.

The nonprofit Chesapeake Bay Foundation, which supported the EPA brief to reject the farm bureau petition, welcomed the decision “that [the] Chesapeake Clean Water Blueprint is perfectly legal,” William Baker, president of the foundation, said. He urged those who opposed the plan to now “devote their time, expertise, and money to working with all of the clean water partners to help Save the Bay.”

The Chesapeake Bay is an enormously valuable resource to its region, and the political support for the Foundation, and for its strong corrective actions reflect widespread awareness of that fact. However, the efforts by AFBF and others to constrain EPA’s efforts suggest that the new rules, which are in early stages of development can be expected to be increasingly controversial in the future.

Nevertheless, the Compact’s efforts to define and impost tough anti-pollution rules is being watched closely by other pollution-threatened areas such as the Maumee River, Lake Erie and even the enormous Mississippi Basin with its growing Caribbean “dead zone,” among several others and agriculture may well be in the middle of most of these disputes. For the longer term, the recent experience also suggests that the anti-pollution fights likely will get much more intense and controversial in the future, Washington Insider believes.


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(GH/CZ)