Many common farm practices that occur without federal permit are in jeopardy
Coast to coast, the topic of water is flooding conversations in farm country. For example, in Ohio, lawmakers approved a bill that prevents spreading manure or other fertilizers on frozen or saturated fields. Recent efforts in Maryland regulate fertilizer use near the Chesapeake Bay.
In Iowa, the Des Moines Water Works has sued three Iowa counties for alleging failing to manage agricultural runoff.
“To argue that agricultural draining is a nuisance—boy, you’re basically saying that farming is a nuisance,” said Roger McEowen, director of the Center for Agricultural Law and Taxation at Iowa State University, on a recent “AgriTalk” segment. “I did not think we’d see the day when a public utility in Iowa would claim that agricultural practices were nuisances.”
The Iowa suit concerns many in the industry, even though the 1972 Clean Water Act has long exempted agriculture from stormwater runoff rules.
On a national scale, the “Waters of the U.S.” rule remains a concern. Based on the feedback from farmers, ranchers and others, EPA and the Army Corps of Engineers are reworking the language to clarify the rules.
Will the new version of the rule, which is expected to be released this spring, be an improvement? Many farm groups, including the American Farm Bureau Federation, are doubtful.
“It is impossible to know how many farmers, ranchers and forest landowners will be visited by [EPA] enforcement staff or will be sued by citizen plaintiffs’ lawyers—and it is impossible to know when those inspections and lawsuits will happen,” said Ellen Steen, the American Farm Bureau Federation’s general counsel, at a House Agriculture subcommittee in March. “What is certain is a vast number of common and responsible farming, ranching and forestry practices that occur without a federal permit would be highly vulnerable to Clean Water Act enforcement under this rule.”
“EPA is a large agency that seems to be looking for problems to solve and agriculture has fallen squarely within its crosshairs,” adds John Dillard, an attorney with OFW Law and Farm Journal legal columnist.