On July 6, 2015, the Third Circuit Court of Appeals upheld the lower court’s decision that affirmed EPA’s authority for the TMDL reductions. The complaint to the District Court, brought by the American Farm Bureau Federation (AFBF), the Pennsylvania Farm Bureau (PFB) and others, asserted that the states, not EPA are responsible for deciding the best means and time frames for the TMDL goals, and that the EPA’s model for the allocations is flawed.

The Chesapeake Bay Foundation, which intervened in the lawsuits along with others, heralded the decisions. President Will C. Baker said upon release of the Appeals Court opinion, “This is a great day for everyone who cares about clean water and the Chesapeake Bay.” Baker urged the parties to stop wasting taxpayer money, drop all legal challenges and work with them to reduce agricultural pollution and realize the goals of clean water for everyone.

When questioned by Farming regarding if Pennsylvania would be stepping up its efforts, Baker said, “We have met with the Governor’s cabinet who recognize they have a lot of work to do but they assured us they will.” Baker continued, “We take them at their word, but we trust and verify.” Baker said that closing the reductions gap in Pennsylvania is a “heavy lift” that will require accelerated efforts, but Baker stressed, “We think it’s doable.” He added, “The officials think they can meet the 2017 goals.” He explained that the technology and science are available and urged, “Implement them.”

PFB expressed disappointment with the Appeals Court decision. Noting that EPA projects that about 600,000 acres, 20 percent, of cropped land in the Watershed would have to be converted to grassland or forest in order to achieve their water quality goals, President Rick Ebert said, “Placing one-fifth of the watershed’s fertile farm land into retirement will have a significant impact on local communities and local food systems.”

PFB reiterated that the EPA model fails to accurately reflect farmer best management practices undertaken at their own expense, such as riparian buffers, contour strips, and no-till cropping. Ebert explained, “Furthermore, cover crops—a growing practice with tangible environmental benefits—are not counted toward meeting water quality goals if the crop is harvested. EPA’s model would rather have the cover crop sprayed dead than see it used as valuable animal feed.” Farmers, however, will continue their improvement measures.

At this writing, PFB and AFBF are analyzing the Court’s opinion. An appeal to the U.S. Supreme Court would need to be sought within 90 days.