Environmental Regulation

Environmental Issues
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Sixth Circuit Case
In January, the Sixth Circuit Court of Appeals handed down the first U.S. court ruling that pesticide discharge is a point source of pollution subject to additional regulation and permitting under the Clean Water Act (CWA).
The impact of this decision, made in the case of National Cotton Council of America v U.S. Environmental Protection Agency, is that EPA will almost certainly require producers to obtain National Pollutant Discharge Elimination System (NPDES) permits or some other type of permit for each and every pesticide application, even if applied within label requirements. In June, the Court ordered a two-year stay of the decision to allow time for EPA and state regulators to implement it properly, and in August, the Court rejected a request from NAWG and other agricultural organizations for a rehearing by the entire Sixth Circuit.
NAWG will closely follow the process EPA undertakes to implement this ruling and the likely effects on producers and agriculural operations. EPA estimates the ruling will affect approximately 365,000 pesticide applicators that perform 5.6 million pesticide applications annually.
Clean Water Restoration Act
A number of Supreme Court rulings in recent years have have complicated the definition of the “navigable waters of the United States,” over which the Environmental Protection Agency and the Corps of Engineers have authority under the Clean Water Act.
To clarify this – and remove the term “navigable,” expanding regulatory jurisdiction – Sen. Russ Feingold (D-Wis.) introduced Clean Water Restoration Act, S. 787. In June, the Senate Environment and Public Works Committee approved this bill after accepting an amendment from Sen. Max Baucus (D-Mont.) clarifying that it could not expand the jurisdiction of the Clean Water Act beyond the scope originally intended by Congress.
The amendment would also codify the exemption for prior converted cropland, which now exists only in federal rules; ensure that the existing permitting exemptions for agriculture in the CWA remain intact; and require that any rulemaking be completely consistent with the traditional scope of the statute.
NAWG expressed preference for the Baucus amendment over the original bill language, but remains opposed to removing the term “navigable” from Clean Water Act language, a position held by many mainstream agricultural organizations.
Farm Bill Conservation Programs
NAWG continues the 2008 Farm Bill implementation process as it relates to conservation programs. Key conservation programs authorized in that bill include:
Conservation Reserve Program (CRP): the CRP cap was reduced to 32 million acres, and the law now allows managed harvesting of biomass subject to the purposes of CRP and soil, water and wildlife considerations. For more, visit the USDA CRP page.
Wetlands Reserve Program (WRP): the WRP cap was set at just over 3 million acres. For more, visit the USDA WRP page.
Conservation Stewardship Program (CSP): a revamped version of the Conservation Security Program in the 2002 Farm Bill, this is a voluntary program that encourages agricultural and forestry producers to maintain existing conservation activities and adopt new ones. The program was authorized in the 2008 Farm Bill and capped at 12.796 million acres enrolled per fiscal year. Continuous sign-up for CSP began Aug. 10; for more visit the USDA CSP page.
Environmental Quality Incentives Program (EQIP) – provides payments up to 75 percent of the incurred costs and income foregone of certain conservation practices and activities. For more visit the USDA EQIP page.

Many of the things farmers do on a daily basis to produce food and maintain their land come under strict environmental oversight.

NAWG works on a variety of environmental issues to ensure policymakers have accurate information and to advocate for laws and regulations that are appropriate for agricultural operations.

Waters of the United States

In April 2014, the Environmental Protection Agency and U.S. Army Corps of Engineers proposed a regulation defining waters of the United States under the Clean Water Act. Subsequently, a final regulation was issued in May 2015. NAWG expressed concern regarding both the proposed regulation and the final regulation for the expanded jurisdiction of the Act and lack of clarity provided to growers.

NAWG endorsed legislation to require EPA to revise the regulation and issue a new proposal. Read more here.

NPDES Permitting

In early 2009, the Sixth Circuit Court concluded in the case of National Cotton Council of America v. Environmental Protection Agency (EPA) that pesticide discharge is a point source of pollution subject to additional regulation under the Clean Water Act (CWA), meaning producers would need additional permitting for every crop protection application.

The Supreme Court declined to take the case on appeal, so the Sixth Circuit’s ruling stands as law despite being duplicative of existing regulation and fraught with unintended complications. EPA estimates the ruling will affect approximately 365,000 pesticide applicators that perform 5.6 million pesticide applications annually.

NAWG strongly supports a legislative fix to this problem. NAWG supports S. 1500, the Sensible Environmental Protection Act and H.R. 897, the Reducing Regulatory Burdens Act.

Click here for more information on this issue.

SPCC

The Spill Prevention, Control and Countermeasure (SPCC) rule requires regulated facilities to develop and implement plans to help prevent oil discharges from reaching navigable waters. SPCC regulations were first issued in 1974, but did not touch agriculture until 2002.

The Water Resources Reform and Development Act of 2014 modified the requirements of SPCC for agriculture. The requirements for agriculture were updated after the EPA released a study in June 2015, as directed by the WRRDA law in 2014.

NAWG supports increasing the exemption to up to 10,000 gallons and supports H.R. 3123 the FUELS Act.

Information from farmers on SPCC compliance and the new requirement is available from EPA here.