Nutrients & Water Quality
NCFC believes it is more important that states work with agriculture to improve water quality through cooperative efforts to reduce nutrient losses than it is for the states, or EPA, to develop numeric nutrient criteria (NNC). Scientifically sound and workable, NNC are prohibitively expensive to create and any policies that derive from low budget NNC are similarly expensive, impractical and will lead to further lawsuits that deplete resources and distract from the real work to be done. Instead, the states should be allowed and encouraged to pursue the development and implementation of state-led Nutrient Loss Reduction Strategies (NLRS), of which NNC are only but one part. EPA must continue to support its current policy of looking to the states to lead and make decisions about how they approach NNC in the context of their NLRS.
EPA should continue to embrace proactive state efforts that promote innovative, voluntary programs for agriculture that improve water quality through reducing nutrient loads, even where that state currently is not focusing on development of NNC for their states. Furthermore, EPA must continue its policy that it does not need to override Mississippi River Basin (MRB) states’ nutrients and water quality programs by stepping in to establish NNC for them. There remains considerable concern that at some point EPA will reverse its policies about NNC and impose a more aggressive timeline on the states for their development, or take it over themselves. NCFC is focusing efforts on ensuring that this does not happen.
The U.S. Environmental Protection Agency (EPA) has affirmed their intention to continue their 2011 policy deferring to states as they work with farmers and others to carry out nutrient loss reduction efforts under the Clean Water Act (CWA). While this remains a very positive development, it also means that responsibility for making progress now lies at the state level, where conflicting forces can be at work leading to bad policy. Recent activity in the states of Ohio, Iowa and Minnesota indicate the critical importance of state developments for agricultural nutrients and water quality policies.
EPA has focused its attention on NLRS work in the 12 states in the federal-state Gulf of Mexico Task Force. That is a positive development that needs to continue, particularly in light of the continuing legal challenges EPA will face on its NNC policies. In June 2011, EPA denied the petition by environmental groups asking EPA to mandate NNC for all 31 states that drain to the MRB, or at a minimum, for the states on the main stem of the river. In March 2012, the environmental organizations led by the Gulf Restoration Network brought suit against EPA in federal district court claiming that EPA’s decision was “arbitrary and capricious,” and to force EPA to make a formal “necessity determination” on the original petition. The federal court system has so far upheld EPA’s ability to deny such petitions without a formal determination as long as the decision is grounded in the CWA; the case is now back to the district court to determine if EPA’s denial of the petition was so grounded and we are expecting them to affirm this position in their decision later this year.
Ohio’s state legislature has adopted legislation that stops the practice of applying commercial fertilizers to frozen or snow covered soils in the Lake Erie basin. The measure was taken in response to the cyanobacteria bloom in Lake Erie in August 2014, which led to cyanotoxins getting into the drinking water intakes for the City of Toledo. As a result, the city was forced to close the metropolitan region’s water supply for several days. The policy debates around the causes of that and previous harmful blooms acknowledge the great progress that agriculture has made in increasing phosphorous (P) use efficiency, reducing sediment losses and the associated P losses, and the complex challenges agriculture faces to reducing P losses even further from their current relatively low levels. The State of Ohio and the EPA are under pressure from environmental interests to find the entire Lake Erie to be impaired under the Clean Water Act (CWA); this would then require a Chesapeake Bay-like TMDL for the entire Western Lake Erie Basin, encompassing significant portions of western Ohio, southeast Michigan and a portion of Indiana.
EPA Region 7 has been sued by the Missouri Coalition for the Environment (MCE) over the Agency’s failure to promulgate lake NNC for the state. EPA had disapproved the state’s proposed lake NNC in 2011 and neither the state or EPA have taken subsequent formal action to craft new NNC. Missouri Department of Natural Resources (DNR) is preparing revised versions of lake NNC and should that process be formally begun we expect the courts to stay the proceedings under the MCE lawsuit, pending the outcome of the state’s efforts.
The Des Moines Water Works (DMWW) CWA suit against three Iowa counties in the Raccoon River Watershed for failure to properly regulate the discharge of agricultural nitrates in the water leaving the tile drainage systems that the counties manage. The counties have filed a motion for summary judgment dismissing this suit based on whether DMWW has standing to bring this suit, and on whether the waters in tile drainage systems are non-point source agricultural stormwater or a point source discharge. These proceedings should last several months and will not likely complete until sometime in 2017.
In Minnesota, the state has adopted legislation and began implementation to expand and aggressively enforce mandated buffers around streams as well as public and private ditches. The state is now going through a mapping exercise to determine where the applicable public waters are located, and the information will be digitized and available to the public. The legislation has been amended to make clear that most of the ditches on privately held land are not subject to this buffer requirement. Soil and water conservation districts will be directed to work with farmers to help them get the buffers installed. In May of this year, Land O’Lakes announced a joint effort with the state of Minnesota to help farmers wanting to take part in the state’s “certainty” program with advanced soil and conservation mapping technologies.