Commentary: Will EPA rewrite Midwest runoff regs?

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Editor's Note: Gary H. Baise is an Illinois farmer and trial attorney at the law firm Olsson Frank Weeda Terman Matz PC, specializing in agricultural and environmental issues in state and federal court. He also serves as outside General Counsel for the U.S. Grains Council, Agricultural Retailers Association, National Association of Wheat Growers, National Sorghum Producers and counsel to the American Soybean Association. Occasionally, Baise will shed light on legal issues facing agriculture. Additionally, he will include his impressions on what these issues mean to producers.

A U.S. District Court judge in Louisiana has ordered EPA to decide whether to regulate nitrogen and phosphorus runoff (nutrients) from farm fields using the Clean Water Act (CWA).

The court decision discusses grounds for motions to dismiss and motions for summary judgment. The decision is not an easy one to follow, but the result of the case is very clear.

The case is Gulf Restoration Network v. Lisa Jackson and EPA and was handed down on Sept. 20. The environmentalists' eventual goal is to set new nutrient standards for all the stream and river waters throughout the Mississippi River basin.

They allege the nitrogen and phosphorus tillage agriculture uses are fueling a dead zone in the Gulf of Mexico, creating toxic algae blooms and damaging drinking water supplies.

Your future is in the hands of EPA lawyers!
The case is receiving attention because it orders EPA to act within 180 days from Sept. 20. 

EPA, in attempting to dismiss the lawsuit, explained that the most effective way to address the nutrient pollution in the Mississippi River basin would be to work with states and the agricultural community to strengthen nutrient management programs.

The judge reviewed a decision by EPA that rejected a 2008 environmentalist petition for rulemaking requesting EPA to control nutrients which run off of farm fields.

These groups ignore the agriculture stormwater runoff exemption in the CWA.

Override state standards?
They specifically want EPA to override all state water quality standards and have EPA promulgate new standards or laws which would set "numeric water quality standards controlling nitrogen and phosphorus pollution." Further the environmentalists want EPA to establish Total Maximum Daily Loads (TMDLs) for the Gulf of Mexico, the Mississippi River, and each Mississippi River tributary.

EPA even says the environmentalists' proposal is "unprecedented and complex" and would be hugely demanding on EPA personnel and time. EPA says staff from the entire agency might be needed to undertake this daunting task.

EPA's position is 50 percent of U.S. streams have medium to high levels of nitrogen and phosphorus. Seventy eight percent of coastal waters exhibit eutrophication. And, nutrients exceed background levels in 64 percent of shallow wells in agriculture and urban areas.

Can you see what is coming?
EPA moved to dismiss the plaintiffs' complaint and the court denied this motion. The environmentalists claim they have a right for the court to review the denial of a final action. The court did say "Plaintiffs are not seeking to have this court order EPA to promulgate federal nutrient criteria." The court was concerned that EPA refused to make either an affirmative or negative necessity determination.

USDA assessment shows conservation gains
From reading the judge's opinion, it appears no one is paying attention to a USDA assessment announced on Aug. 27. This new report from the Natural Resources Conservation Service (NRCS) was the completion of a watershed wide assessment of conservation efforts by producers in the Mississippi River watershed. The new findings show facts which seem to be missing from the context of this case.

Nothing unusual here!
The lawyers representing EPA and the Department of Justice probably sympathize with the environmental groups and are not aware that conservation work by agriculture has reduced edge-of-field losses of sediment by 35 percent, nitrogen by 21 percent and phosphorus by 52 percent.

The report not only shows positive impacts of conservation but it also signals the need for additional conservation work.

Similar assessments in the upper Mississippi River, Tennessee-Ohio, Missouri and Arkansas-Red-White basins show substantial success in keeping 2.1 billion pounds of nitrogen and 375 million pounds of phosphorus from leaving fields each year.

The report claims "these figures translate to a 55 percent, 34 percent and 46 percent reduction in sediment, nitrogen and phosphorus edge-of-field losses, respectively, compared to what would have been lost if no conservation practices were in place."

The future is pretty clear if not bleak: if agriculture does not start telling its story in a positive fashion in the courts and its story is left to lawyers and courts that know or care little about agriculture, then our future is not very bright.

Gary H. Baise is a principal at OFW Law (Olsson Frank Weeda Terman Matz P.C.). This article first appeared in Farm Futures magazine. The opinions presented here are expressly those of the author. For more information, go to www.OFWlaw.com.


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