Agricultural Water Issues Keep Overflowing

Agricultural Water Issues Keep Overflowing

A worsening drought in California. A public utility’s lawsuit in Iowa.  Water quality legislation in Ohio. Buffer zones in Minnesota. And a speech that touched on the controversial proposal known as the “Waters of the U.S.” rule.

Coast to coast, the topic of water is flooding the conversation in farmland.  “Are water quality issues coming to a head in agriculture all over?” asked John G. Dillard, an associate attorney at OFW Law in Washington, D.C. “Yes.”

Dillard, who specializes in agricultural issues, including water quality, points to recent efforts in Maryland to regulate fertilizer use due to concerns about the Chesapeake Bay. In Ohio, lawmakers recently approved a bill that prevents farmers from spreading manure or other fertilizers on frozen or saturated fields.

And then there’s Iowa, where the Des Moines Water Works has sued three Iowa counties over what it sees as their failure to manage agricultural runoff.

“To argue that agricultural draining is a nuisance—boy, you’re basically saying that farming is a nuisance,” Roger A. McEowen, director of the Center for Agricultural Law and Taxation at Iowa State University, said on AgriTalk. “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 as they note that the 1972 Clean Water Act has long exempted agriculture from stormwater runoff rules. “I think the agriculture stormwater exemption is going to be a useful tool in fighting this lawsuit,” Dillard said.

Craig Hill, president of the Iowa Farm Bureau, agreed. “I think it’s a weak claim,” said Hill, referring to the utility’s legal argument. “However, it does [create] huge risk to agriculture and any landowner.”

Listen to Hill's comments on AgriTalk here:

What else remains a water-related worry for farmers, other than spring rains? The controversial “Waters of the U.S.” rule, which is scheduled to be discussed on Capitol Hill on March 24.

EPA Administrator Gina McCarthy addressed the issue during a speech at the National Farmers Union convention in Kansas earlier this month. “I want to tell you up front that I wish we had done a better job of rolling out our Clean Water Rule–from calling it WOTUS instead of the Clean Water Rule, to not being more crystal clear out of the gate about what we were and were not proposing, to not talking to all of you and others before we put out the interpretive rule.”

Based on the feedback from farmers, ranchers and others, she said the EPA and Army Corps of Engineers went back to rework and clarify the rules. Those are expected to be released this spring.

“We’re making a target effort to protect the waters that matter most. We’re thinking through ways to narrow the definitions in our proposal and make them clearer,” McCarthy said. “But one thing absolutely won’t change—and that’s the exclusions and exemptions for agriculture in the Clean Water Act. This rule doesn’t touch them.”

Will the new version of the rule be an improvement?

think we’ll have to wait to see what comes out,” said Dillard, who drew a contrast between the water quality challenges of the past and today. “I think when the Clean Water Act was passed 40 years ago, there was a lot of low-hanging fruit and clear-cut problems. We don’t have rivers burning anymore,” he noted. “But EPA is a large agency that seems to be looking for problems to solve and agriculture has fallen squarely within its crosshairs.”

It's a situation which frustrates the American Farm Bureau Federation, which doubts even a revised rule would be workable for the agricultural community.

“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,” Ellen Steen, the American Farm Bureau Federation's general counsel, told a House Agriculture subcommittee in March. “But what is certain is that a vast number of common, responsible farming, ranching and forestry practices that occur today without the need for a federal permit would be highly vulnerable to Clean Water Act enforcement under this rule.”

That type of regulatory risk troubles AFBF President Bob Stallman. If the new version of the rule is also unfriendly to farmers, he plans to continue the battle.

"The only other option we have is to continue to work with the leadership in Congress to see ff we can get some legislation that will block funding or block implementation of he rule," Stall said. "I don't care where it come from as long as it gets done."

What is happening with water quality issues in your area? What are lawmakers proposing? How is the agricultural community reacting? Let us know on the AgWeb discussion boards.

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Spell Check

john cook
wil;liamsport, OH
3/25/2015 08:45 AM

  I am currently setting up a field to examine the runoff in field tiles of phosphorus and nitrogen sources for proof of infiltration of these fertlizers into the water supply. Can I get any sort of money to help in this project? I have installed separate tile lines into a common ditch with separate tile lines below each line of fertilizer being used. I plan on making three reps. of each source of nitrogen and take weekler water samples as well as tissue samples.

Niederham, NM
1/28/2019 12:34 PM

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