Commentary: Will EPA rewrite Midwest runoff regs?
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.
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