By MARK POWELL

9/12 The National Chicken Council and the National Corn Growers Association joined the American Farm Bureau Federation, filing suit in federal court to stop the Environmental Protection Agency from regulating farms under its new water quality rules.
The Total Maximum Daily Loads (TMDLs) program requires states to control non-point sources of nutrients to waterways: farms and urban areas. Previously, the EPA had restricted its regulatory authority to point-source pollution such as factories and wastewater treatment plants.
“EPA has gone beyond its legal authority in attempting to pull farms into the TMDL program,” said George Watts, president of the National Chicken Council. “If EPA has its way, chicken producers may well have to apply for the same type of environmental permits that large industrial facilities have to get.”
Senior Farm Bureau staffer Don Parrish said the AFBF’s suit, filed on Aug. 21 at the Court of Appeals in Washington, D.C., essentially questions the right of the EPA to control farms under the authority granted them in the Clean Water Act. The Clean Water Act, Parrish said, was crafted in 1972 to address point-source pollution.
The section of the Clean Water Act adapted for the new TMDLs, Farm Bureau argues, is being gerrymandered to allow the agency the assume controls over land use never intended by Congress.
The TMDLs have been highly controversial, with environmental organizations suing the EPA to force it to move forward regulations and even Congress stepping in in an attempt to stop the agency from putting the program in place. Congress could still stop the rules, but Capitol Hill observers call that an unlikely event.
EPA Adminstrator Carol Browner said TMDLs will “finish the job of restoring the quality of America’s waters. The time has come to live up to the promise of the Clean Water Act and make our waters fishable and swimmable once again.”
TMDLs are similar to the tributary strategy process followed in Maryland and other Chesapeake Bay Program states. A “pollution budget” is developed for waterway, setting specific limits on the amounts of nitrogen and phosphorus that can be allowed to flow into the waterway.
State officials in Maryland have for the past few years said that Maryland’s nutrient management law and its tributary strategies should mesh closely with TMDLs, lessening the impact of the federal regulations on ag in the Free State. However, the EPA does state in its TMDL program that if the Chesapeake program does not meet its goals by 2011, the feds could step in.
Some officials have said the TMDLs will become a nightmare for agencies to administer. Estimates of cost have varied wildly. EPA’s estimate is $23 million. The General Accounting Office told Congress the agency significantly underestimated the difficulty and cost of administering the program, particularly as it relates to agriculture and the forestry industry.
On another issue, the EPA is expected to issue proposed regulation changes soon, which would essentially increase the scope of its National Pollutant Discharge Elimination System (NPDES) permitting program to include virtually all poultry farms. The EPA may also mandate regulations making poultry companies liable for the nutrient management of their contract farmers.
These regulations may also be opposed in court by some of the same ag organizations.
Some experts say the courts may be the best resort in addressing such complicated issues. Explaining the onerous nature of environmental regulations on agriculture through legislatures and Congress is not often a winning proposition, observers say.