Top Environmental Regulations Affecting Agriculture in 2015

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1 Top Environmental Regulations Affecting Agriculture in 2015 Lauren Lurkins Director of Natural and Environmental Resources Illinois Farm Bureau WHAT WE WILL COVER Waters of the United States Proposed Regulation from USEPA/Corps Nutrient Runoff Nutrient Reduction Strategies Individual State Regulations 1

2 WATERS OF THE US On March 25, 2014, USEPA and the Corps proposed a rule that would expand their regulatory authority under the Clean Water Act. Public comment period through November 14, s of 1,000s of comments received SCIENCE REPORT Draft connectivity report used to claim that, from a scientific standpoint, all waters have a chemical and ecological nexus to one another. Not a new concept. The new concept: USEPA/Corps made a policy decision that all connections between waters are significant regardless of how much or how often they actually have water. 2

3 ECONOMIC REPORT The claim: USEPA/Corps have claimed the rule would have minimal economic impact and not affect many acres (only about 1,300 nationwide). The truth: Tremendous economic impacts on the entire economy (agriculture, home building, mining, road construction, etc.) INTERPRETIVE RULE At the same time they proposed the WOTUS rule, the agencies unveiled an interpretive rule (immediately effective) regarding farmer exemptions for conservation practices. The claim: USEPA/Corps claim these are a good thing for farmers. The truth: These exemptions are a game changer for agriculture. 3

4 CLEAN WATER ACT BASICS The claim: USEPA/Corps say just clarification of their jurisdiction; no expansion. The truth: The proposal gives USEPA/Corps power to regulate or prohibit land-use and farming practices in or near jurisdictional land features and waters. Regulating land, not water! The agencies have been asserting this jurisdiction for some time. Doesn t mean it s right! CLEAN WATER ACT BASICS Navigable waters are waters of the U.S. State and local governments have jurisdiction over smaller, more-remote waters, such as ponds and isolated wetlands. Cooperative federalism 4

5 CLEAN WATER ACT BASICS 2 sections of the CWA impact agriculture the most: Section 404 allows the Corps to issue permits for discharges of dredge and fill material into navigable waters. Section 402 establishes NPDES permitting program in which USEPA or states (with USEPA oversight) can issue permits for discharges of other pollutants into navigable waters. WHAT USEPA/CORPS PROPOSE TO REGULATE Waters that meet definition of navigable waters (no change from current): Large tidal water bodies used in interstate commerce Interstate waters Territorial seas Impoundments of these traditional navigable waters 5

6 WHAT USEPA/CORPS PROPOSE TO REGULATE Tributaries New definition any feature with a bed and bank and ordinary high water mark that contributes flow to traditional waters in any amount, whether directly or through other water bodies. Ponds, impoundments, lakes and wetlands do not need bed/bank/ordinary high water mark to be a tributary. No amount, frequency or duration of flow limits definition of tributary. WHAT USEPA/CORPS PROPOSE TO REGULATE Includes ditches, unless fit two narrow exemptions: Ditches excavated wholly in uplands, drain only uplands, and have less than perennial flow Ditches that do not contribute flow, either directly or indirectly, through another water (including ditch or ephemeral stream) Roadside, irrigation and stormwater ditches would be seen as tributaries 6

7 WHAT USEPA/CORPS PROPOSE TO REGULATE Adjacent waters Current regulation: Only cover wetlands adjacent to waters of the U.S. Proposed regulation: Expanded to include not only wetlands, but all waters adjacent to traditional navigable waters. Defines adjacent : bordering, contiguous or neighboring waters separated from other waters of the U.S. by dikes or barriers. WHAT USEPA/CORPS PROPOSE TO REGULATE Neighboring includes riparian areas and floodplains Riparian areas : transitional areas between water and land where surface or subsurface hydrology influences the ecological process and plant community Floodplain : does not specify flood interval, leaving to agency discretion. 7

8 WHAT USEPA/CORPS PROPOSE TO REGULATE Other waters with a significant nexus Either the waters alone or in aggregate with similarly situated features, have a significant nexus to more traditional navigable waters. Term significant nexus is from U.S. Supreme Court cases more than speculative or insubstantial WHAT USEPA/CORPS PROPOSE TO REGULATE Proposal includes list of exclusions from the term WOTUS BUT the exclusions only apply to limited set of features excavated wholly on upland (not in a water, ephemeral or wetland) with no characteristics of a tributary. 8

9 WHAT USEPA/CORPS PROPOSE TO REGULATE 3 exclusions to WOTUS relevant to farming: Artificially irrigated areas that would revert to upland should application of irrigation water to that area cease Artificial lakes or ponds created by excavating and/or diking dry land and used exclusively for such purposes as stock watering, irrigation, settling basins and rice growing Gullies and rills and non-wetland swales (although USEPA acknowledges difficult to tell these from ephemeral streams that will be regulated) DIFFERENCES UNDER THIS PROPOSED RULE No limit to federal jurisdiction End-run around Congress Ignores U.S. Supreme Court mandate that imposes limits on federal jurisdiction and rejects USEPA/Corps theory that they can regulate a water feature of dry land if one could find any hydrologic connection to a traditional navigable water. 9

10 DIFFERENCES UNDER THIS PROPOSED RULE No legal right to a permit Would have to wait for permit to build fences, use pesticides, etc. Subject to citizen lawsuits and penalties of $37,500 per discharge per day if act without a permit. FARMER EXEMPTIONS Interpretive rule (USEPA, Corps, USDA) Immediately final, but agency guidance that can be changed at any time Over 50 conservation practices Only apply to Section 404 (Dredge and Fill) permits (no exemptions from weed control, fertilizer applications, etc under Section 402) Only apply to farmers who have been farming continuously since

11 FARMER EXEMPTIONS Only apply if follow NRCS standards. Before: Farmers could undertake these practices as part of their normal farming practices Now: Farmers must comply with NRCS standards or risk CWA enforcement WOTUS STATUS If the proposed rule moves forward, expect it to be final in the Spring, so in the courts by the end of 2015, and in appeals by end of President s term Legislation passed the House to stop the rulemaking and send USEPA back to the drawing board. Focus is now on the Senate. Focus also on attempts to defund implementation of the rule. More legislation proposed in beginning of 2015? 11

12 NUTRIENT RUNOFF Nutrient Reduction Strategies Individual state regulations GULF HYPOXIA Hypoxia means low oxygen. It is primarily a problem for estuaries and coastal waters. Hypoxic waters have dissolved oxygen concentrations of less than 2-3 ppm. Hypoxia can be caused by a variety of factors, including excessive nutrients (primarily nitrogen and phosphorus), and waterbody stratification due to saline and temperature gradients. 12

13 GULF HYPOXIA The Mississippi River basin drains approximately 41% of the US (31 states) and is divided into 6 sub-basins. 13

14 2014 HYPOXIC ZONE The 2014 Hypoxic Zone measured 5,000 square miles. The area was predicted to be 4,633 to 5,708 square miles. This area was smaller than last year (5,840 square miles). 14

15 MISSISSIPPI RIVER BASIN IN THE COURTS Legal battles over USEPA action on nutrient limits for the Mississippi River basin started in Environmental groups, led by Natural Resources Defense Council, petitioned USEPA to develop numeric nutrient limits for nitrogen and phosphorus for the entire 2,530 mile long river and its tributaries. Requested standards are similar to those enforced in the Chesapeake Bay watershed. MISSISSIPPI RIVER BASIN IN THE COURTS Under the Clean Water Act, states are responsible for adopting their own water quality standards. USEPA is supposed to step in only when states demonstrate they cannot or will not comply. Environmental groups assert that states have done little to meaningfully control the levels of nitrogen and phosphorus. 15

16 MISSISSIPPI RIVER BASIN IN THE COURTS The difficulty of the task requested by the environmental groups is underscored by the sheer size of the Mississippi River s basin (31 states). USEPA said in one legal brief that efforts to set federal numeric nutrient criteria for even 10 states at one time would involve sizeable regulatory and oversight burdens. GULF HYPOXIA TASK FORCE Consists of 5 federal agencies, 12 states and tribes in the Mississippi River Basin. The Task Force was established in 1997 to reduce and control hypoxia in the Gulf. On June 16, 2008, the Task Force released a 2008 Action Plan. Goals: Reduce Hypoxic Zone to 1,930 square miles Reduce Nutrient Loading to the Gulf 45% Total Phosphorus and Total Nitrogen 16

17 USEPA MEMO MARCH 2011 Working in Partnership with States to Address Phosphorus and Nitrogen Pollution through Use of a Framework for State Nutrient Reductions. Purpose: Encourage states to develop nutrient reduction strategies while continuing to develop numeric nutrient standards. Lays out 8 elements of a framework for the strategy. USEPA MEMO MARCH 2011 Element 1 Prioritize watersheds on a statewide basis for nitrogen and phosphorus loading reductions. Element 2 Set watershed load reduction goals based upon best available information. Element 3 Ensure effectiveness of point source permits in targeted/priority sub-watersheds. Municipal/industrial, CAFO, urban stormwater 17

18 USEPA MEMO MARCH 2011 Element 4 Agricultural areas In partnership with Federal and State Agricultural partners, NGOs, private sector partners, landowners, and other stakeholders, develop watershed-scale plans that target the most effective practices where they are needed most. Look for opportunities to include innovative approaches, such as targeted stewardship incentives, certainty agreements, and N & P markets, to accelerate adoption of agricultural conservation practices. Also, incorporate lessons learned from other successful agricultural initiatives in other parts of the country. USEPA MEMO MARCH 2011 Agricultural areas (continued) USDA and State Departments of Agriculture are vital partners in this effort. If we are to make real progress, it is imperative that EPA and USDA continue to work together but also strengthen and broaden partnerships at both the national and state level. 18

19 USEPA MEMO MARCH 2011 Element 5 Storm water (non-ms4) and septic systems Element 6 Accountability and verification measures USEPA MEMO MARCH 2011 Element 7 Annual public reporting of implementation activities and biannual reporting of load reductions and environmental impacts associated with each management activity in targeted watersheds Element 8 Develop a work plan and schedule for numeric nutrient criteria development. 19

ILLINOIS NUTRIENT LOSS REDUCTION STRATEGY Wide stakeholder effort from March 2013 to May 2014 Effort led by Illinois EPA and Illinois Department of Agriculture Draft was released November 25, 2014

20 ILLINOIS NUTRIENT LOSS REDUCTION STRATEGY Wide stakeholder effort from March 2013 to May 2014 Effort led by Illinois EPA and Illinois Department of Agriculture Draft was released November 25, 2014 for 60 day public comment period Once final, will go to USEPA SCIENCE ASSESSMENT FINDINGS Illinois contributes 20% of nitrate (410 M lbs) and 11% of phosphorus (37.5 M lbs) that makes it to the Gulf 20

21 STRATEGY TARGETS AND COSTS Baseline Average annual loading of nitrate-n and P from the levels Targets (5 year running average) N: 15% by 2025, 45% ultimate P: 25% by 2025, 45% ultimate Estimated costs - $800 million annually from point source and nonpoint source, with no new funding sources AGRICULTURAL NONPOINT SOURCES Includes recommended BMPs shown through peer reviewed research to reduce nutrient losses In-field (split application of N, cover crops, reduced tillage) Edge of field (bioreactors, wetlands) Land use changes (perennial crops) Information on costs and estimated reductions/acre for N and P Combination scenarios of BMPs to see large scale reductions 21

22 AGRICULTURAL NONPOINT SOURCES Livestock operations - BMPs included for: Land application of manure Runoff management from production areas MAJOR THEMES Focus on building upon existing programs and resources State level Federal level Agricultural initiatives No new legislation or regulation Reinvigoration of voluntary conservation adoption and nutrient management New focus on tracking implementation of BMPs and resulting water quality impacts No one size fits all approach for all of Illinois agriculture Our opportunity to demonstrate that voluntary conservation does work! 22

23 INDIVIDUAL STATE REGULATIONS TO ADDRESS NUTRIENTS Patchwork across the country targeted at addressing localized issues: Chesapeake Bay Executive Order TMDL, state regulations addressing a variety of issues Ohio 4R education program (fertilizer applicator license) last session Ban on spreading manure or commercial fertilizer when conditions are conducive to runoff in Western Lake Erie Basin: Frozen Snow-covered Top 2 inches saturated by precipitation 50% chance of precipitation QUESTIONS? Lauren Lurkins llurkins@ilfb.org (309)

The Clean Water Act Waters of the US Proposed Rule -- What is it and what are the implications for agriculture?

The Clean Water Act Waters of the US Proposed Rule -- What is it and what are the implications for agriculture? August 1, 2014 1 Acronyms and Terms Agencies CWA WOTUS Rule FEMA USGS Environmental Protection