Farm Bureau Seeks CWA Case Rehearing

July 23, 2002

The American Farm Bureau Federation has filed a petition seeking a rehearing of a Clean Water Act (CWA) case that may significantly affect farmers and ranchers nationwide.

A ruling by the U.S. Ninth Circuit Court of Appeals allows the Environmental Protection Agency "a breathtaking assertion of power" beyond what is authorized by federal law, according to the Farm Bureau petition.

"If the ruling stands, the Environmental Protection Agency will have greatly expanded authority beyond the letter and intent of the Clean Water Act," said American Farm Bureau Federation President Bob Stallman. "This would cost farmers and ranchers financial resources they cannot afford to lose."

Farm Bureau asserts that the court's ruling is inconsistent with the CWA and mandates a result opposite its own precedent. The petition points out other appeals court rulings of the 9th Circuit that are "contrary to the inventive reading of the CWA adopted by the panel here."

The court ruled May 31 that federal limits on water pollution, called total maximum daily loads (TMDLs), apply to non-point sources of pollution, including agriculture, even though the CWA restricted federal TMDL regulation to point source pollutants, or end-of-pipe discharges, only. Non-point pollution can come from numerous sources, including suburban lawns, forests, farms and rural lands. It is unpredictable and difficult to measure. Farm Bureau argues that is the very reason Congress intended that direct federal regulation under TMDLs apply to point source pollutants only.

Point source pollutants, which include mostly industrial and municipal waste, can be measured and controlled with more precision. Non-point pollution is regulated by states under a separate section of the CWA.

The American Farm Bureau Federation July 15 filed the petition along with the California Farm Bureau Federation, the Mendocino County Farm Bureau and Mendocino County landowners Guido and Betty Pronsolino. The Pronsolinos could face more than $1 million in losses for their properties in the Garcia River watershed as a result of the court ruling.

Even though the river is affected by non-point source pollution only, the ruling would allow EPA to require the State of California to restrict the landowners' permits for logging and farming.