1. Environmental Issues Update
Tom Hebert, NCFC Consultant
February 10, 2016
Speaking Up for Agriculture & Cooperative Sustainability

2. Clean Water Act, Nutrients and Water Quality
Today’s Talk
WOTUS Rule
Clean Water Act, Nutrients and Water Quality
CAFO Related Issues

4. Waters of the US Rulemaking

5. The rule went into effect on August 28, 2015 in 37 states – and in short order it was stopped. A federal district court in North Dakota has granted a preliminary injunction in 13 states. And then the 6th Circuit Court of Appeals have issued a national stay of the rule. EPA and the Corps are now working under the previous rule.
The legal situation is very complicated and we hope by year’s end to have a clear picture. The first issue will be whether the district courts or the circuit courts are the right venue to hear these suits. The 6th Circuit Court is now struggling with that issue, as are district courts and even the 11th Circuit. Did I say this was complicated. That question could easily get us to the Supreme Court in a year or two, and this would all have to take place before the underlying legality of the substance of the rule can be addressed by the courts.
Congress has tried and not succeeded to invalidate the final WOTUS rule. We expect continued efforts by Congress to do this, but it doesn’t look like they will be successful anytime soon.

6. Clean Water Act, Nutrients & Water Quality

7. Chesapeake Bay TMDL Farmers in key states now must have NMPs
Agronomic rates
Seasonal limitations
Conservation practices
Farm-by-farm permit accounting being sought – enforcement coming?
No analysis done yet of bottom line costs or benefits
Modelling to “show” outcomes
What happens if monitoring shows no change?
Lessons
States invited EPA to play over-aggressive role
Gov’t now farmers’ “partner” – is that good policy?
Myths are being perpetuated
Practical farm-level enforcement issues
What happens if water quality does not improve?
Blame farmers and impose more aggressive controls?
Accept that there are limits to what can be achieved?

8. Des Moines Water Works Suit
CEO is active and aggressive
Voluntary doesn’t work, Not enough adoption of the right BMPs, Too slow, Need mandatory permits
Building a monitoring and data record to sue
High spring nitrate loads and drinking water removal
Allege that ag tile discharge is a CWA point source subject to NPDES permitting
“They have to have a permit for this – so should farmers”
Require drainage districts to get NPDES permits?
As a practical matter, doesn’t work
Districts have no authority, budget, means to impose permit controls
Is the goal to generate a policy crisis that forces the state to act on permitting farmers?

9. Des Moines Water Works – Status
Can these districts even be sued?
Des Moines populous generally very supportive
Other cities openly reject DMWW approach
CWA ag stormwater exemption at risk
Iowa agriculture organized
Fighting the recognized threat
Iowa ag and state government keep focus on implementing the IA’s Nutrient Strategy

10. IA Governor Proposes $4.7 Billion for Water Quality
Education capital fund
Extended sales tax
Increased sales
75% for ag, 25% cities
Awaits legislative consideration

11. Will Lake Erie’s HABs Lead to TMDL?
CWA Impaired?

12. Some Other Nutrient Issues
Minnesota mandates stream and ditch buffers
Missouri facing legal and EPA challenge to finish numeric nutrient criteria

13. CAFO POLICIES AND DEVELOPMENTS

14. Cow Palace and RCRA – what is next?
Tulare, CA Dairy’s Solar Energy Field
Notice of Intent to Sue Pursuant to Resource Conservation and Recovery Act, 42 U.S.C. Section 6972?

15. New EPCRA lawsuit on emissions reporting
2006 rule and Waterkeeper suit had been on hold
Some CAFOs are reporting emissions
Suit now active in DC Circuit
Did the 2006 rule lawfully exempt CAFOs from CERCLA reporting?
Matter is briefed…awaiting decision

16. EPA release of CAFO data under FOIA
Decision is pending
Court ordered stay in place

17. Speaking Up for Agriculture & Cooperative Sustainability
Questions?