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At stake: federal grant money
The TMDL, which sets a completion date of 2025, also outlines consequences that the EPA will impose on states that fail to make sufficient headway. Among these are the withholding of EPA grant money and stricter requirements for federally regulated pollution sources such as factories and waste-water treatment plants.
"This plan gives me the greatest optimism I've ever had," says Mr. Hoagland, who has worked on bay issues for nearly 25 years.
Agricultural groups beg to differ. After the lawsuit was filed, Virginia Farm Bureau president Wayne Pryor issued a statement supporting bay restoration in principle, but warning that the TMDL puts "the entire economy ... at stake."
The lawsuit raises several objections to the cleanup plan. First, as the TMDL neared completion, groups like the AFBF increasingly criticized data used in its development. One complaint focused on the EPA's exclusion of data on existing, "voluntary" conservation measures – ones that farmers have undertaken outside public-subsidy programs and that therefore are mostly unrecorded.
Although the EPA has acknowledged this shortcoming and is working on an accounting system for voluntary practices, farmers worry that credit will not be issued quickly for existing conservation efforts and that the agriculture sector will thus be asked to make more than its fair share of pollution reductions.
Another criticism centers on inconsistencies between EPA data used to develop the TMDL and data collected by the US Department of Agriculture for a report on farm pollution controls in the watershed. These discrepancies were identified last fall in a study commissioned by several agriculture groups.
The EPA has defended its data. According to Mr. Capacasa, the expansive set of bay water-quality data gathered during previous restoration efforts has allowed the agency to write the most scientifically rigorous TMDL ever. That claim has the support of several prominent university scientists in the bay region, who signed a letter last fall declaring the scientific community's consensus that the TMDL data and models are "both useful and adequate."
EPA has 'overreached,' critics say
The lawsuit, Mr. Parrish says, also claims that the EPA overstepped its authority granted under the Clean Water Act, because it has set individual pollution limits for each state in the watershed and for the bay's tributary rivers.
"The ends in this case do not justify the means.... We believe the EPA overreached," Parrish says.
Capacasa responds that the EPA believes it has a "very defensible TMDL that meets the requirements of the Clean Water Act."
The EPA, which has until March 14 to respond to the lawsuit, is now reviewing the case, Capacasa says.
While the American and Pennsylvania farm bureaus are the only groups so far to challenge the TMDL in court, municipal storm-water associations in Virginia and Maryland have also expressed concern about the TMDL's economic impact. Both groups cite a study that estimated a cost of at least $700 per household per year to retrofit urban storm-water controls to satisfy the pollution allocations included in a draft version of the TMDL.
Back at his farm just outside Stuarts Draft, Va., McPherson lists the actions he's already taken over the years to protect Christians Creek and, ultimately, the bay: adopting no-till practices instead of repeatedly plowing his fields, fencing his cattle from long sections of the creek, and fertilizing his crops with far more precision and restraint than the "happy homeowners" whose emerald lawns also drain into the bay.
"There's so much that we've changed," he says, the sunset casting a glow across the barnyard. "[But] we're [still] getting singled out because we're the ones who can be controlled the easiest."