PROMINENT DC ATTORNEY: EPA PUTS ANOTHER BULLS-EYE ON FARMLAND OWNERS, OPERATORS
Jan. 24, 2014
By Gary Baise
Watch the government bureaucrats in December of any year.
The Government Accountability Office issued a report (Clean Water Act -Changes Needed if Key EPA Program if to Help Fulfill the Nation's Water Quality Goals) in late December, 2013, which will put another EPA bull's-eye on farmland and ranch operators and owners.
GAO says "...more than 25 years after Congress amended it [Clean Water Act]...to institute a program to control nonpoint source pollution, a majority of our nation's waters continue to be impaired." GAO says "Major challenges remain for addressing nonpoint source pollution." (Interpretation: too much runoff from farms and ranches.)
The GAO report is important to agriculture because this investigative arm of Congress carries substantial credibility. Too bad this report seems not to understand agriculture and what tillage and animal agriculture is doing to reduce runoff.
Such ignorance is dangerous.
A major error
As noted earlier, you might believe Congress only started 25 years ago to control nonpoint source pollution from agriculture and other sources. I suggest the authors of the GAO report look at Section 208 of the Federal Water Pollution Control Act passed in 1972, now known as the Clean Water Act.
Section 208 was drafted to encourage, develop, and implement area-wide waste treatment management plans.
Section 208(j) (1) is an entire section where USDA is authorized and directed to develop programs and enter into contracts "...for the purpose of installing and maintaining measures incorporating best management practices to control nonpoint source pollution for improved water quality..." in states and areas where the administrator believes there needs to be an improvement in water quality standards.
Any checking by GAO on the success of this program? Apparently not!
This is a 103-page report including appendices. Nowhere do I find any recognition that GAO even knows about Section 208.
GAO suggests that Section 319 added to the Clean Water Act in 1987 is the real beginning of dealing with agricultural stormwater runoff issues. Not so.
Ag stormwater exemption
Nor is there any recognition that Congress has specifically said in the same act that agricultural stormwater is specifically exempted from EPA"s permitting controls. The GAO report clearly is an effort to undermine and destroy the agricultural stormwater runoff exemption.
GAO concludes that "The chemical, physical, and biological integrity of the nation's waters including designated uses of fishing, swimming, and drinking - has stalled largely because nonpoint source pollution has not be controlled."
The latest EPA National Water Quality Inventory indicates that agriculture is the leading contributor to water quality impairments. In fact, EPA says agricultural and other nonpoint source pollution is "...degrading 60 percent of the impaired river miles and half of the impaired lake acreage surveyed by states, territories, and tribes." EPA says the most common pollutants are sediment and nutrients running off agricultural land and from animal feeding operations.
GAO supports EPA's conclusion without apparently working very closely with USDA and the programs it has been working on since 1972. GAO's report is focused on EPA's effort to improve water quality by controlling nonpoint sources. The report notes that EPA has developed with the states over 50,000 Total Maximum Daily Load requirements for streams and lakes. GAO notes these TMDLs have stalled because nonpoint source pollution, from agriculture, has not been adequately controlled.
GAO's report, which for a change I do not recommend you waste your time reading, is an effort by the GAO to talk to state officials, review 191 TMDLs, have 25 TMDLs reviewed by water resource experts, and talk to state officials who report that TMDLs "...generally do not exhibit factors most helpful for attaining water quality standards, particularly for nonpoint source pollution (e.g., farms and stormwater runoff)."
GAO tells Congress that "EPA does not have direct authority to compel landowners to take prescribed actions to reduce pollution." GAO says two key factors stymie implementation of TMDLs controlling nonpoint source pollution from farms and other sources: a lack of legal authority and sufficient funding.
GAO does recognize, in its conclusions, that it might want EPA to work with USDA because it notes there is important data related to TMDL implementation on streams which is collected by USDA on conservation projects but this information "...remains outside of EPA's authority to obtain from USDA without landowners' consent" because GAO says EPA cannot track USDA's actions or make any subsequent changes,
GAO recommends giving EPA more authority over agriculture saying "Congress should consider revising the acts' [CWA] largely voluntary approach to restoring waters impaired by such pollution." That means giving more permitting authority to EPA over runoff from your farming and ranching operation.
As I said in an earlier blog, watch December actions by Washington. They are usually lumps of coal in your stocking.
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.