Commentary: Will EPA rewrite Midwest runoff regs?
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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