Baise: Another bull's-eye on farmland owners

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Gary Baise Watch the government bureaucrats in December of any year. The Government Accountability Office issued a report (CLEAN WATER ACT –Changes Needed if Key EPA Program if to Help Fulfill the Nation's Water Quality Goals) in late December, 2013, which will put another EPA bull's-eye on farmland and ranch operators and owners.

GAO says "…more than 25 years after Congress amended it [Clean Water Act]…to institute a program to control nonpoint source pollution, a majority of our nation's waters continue to be impaired." GAO says "Major challenges remain for addressing nonpoint source pollution." (Interpretation: too much runoff from farms and ranches.)

The GAO report is important to agriculture because this investigative arm of Congress carries substantial credibility. Too bad this report seems not to understand agriculture and what tillage and animal agriculture is doing to reduce runoff.

Such ignorance is dangerous.

A major error

As noted earlier, you might believe Congress only started 25 years ago to control nonpoint source pollution from agriculture and other sources. I suggest the authors of the GAO report look at Section 208 of the Federal Water Pollution Control Act passed in 1972, now known as the Clean Water Act.

Section 208 was drafted to encourage, develop, and implement area-wide waste treatment management plans.

Section 208(j) (1) is an entire section where USDA is authorized and directed to develop programs and enter into contracts "…for the purpose of installing and maintaining measures incorporating best management practices to control nonpoint source pollution for improved water quality…" in states and areas where the administrator believes there needs to be an improvement in water quality standards.

Any checking by GAO on the success of this program? Apparently not!

This is a 103-page report including appendices. Nowhere do I find any recognition that GAO even knows about Section 208.

GAO suggests that Section 319 added to the Clean Water Act in 1987 is the real beginning of dealing with agricultural stormwater runoff issues. Not so.

Ag stormwater exemption

Nor is there any recognition that Congress has specifically said in the same act that agricultural stormwater is specifically exempted from EPA''s permitting controls. The GAO report clearly is an effort to undermine and destroy the agricultural stormwater runoff exemption.

GAO concludes that "The chemical, physical, and biological integrity of the nation's waters including designated uses of fishing, swimming, and drinking – has stalled largely because nonpoint source pollution has not be controlled."

The latest EPA National Water Quality Inventory indicates that agriculture is the leading contributor to water quality impairments. In fact, EPA says agricultural and other nonpoint source pollution is "…degrading 60 percent of the impaired river miles and half of the impaired lake acreage surveyed by states, territories, and tribes." EPA says the most common pollutants are sediment and nutrients running off agricultural land and from animal feeding operations.

GAO supports EPA's conclusion without apparently working very closely with USDA and the programs it has been working on since 1972. GAO's report is focused on EPA's effort to improve water quality by controlling nonpoint sources. The report notes that EPA has developed with the states over 50,000 Total Maximum Daily Load requirements for streams and lakes.  GAO notes these TMDLs have stalled because nonpoint source pollution, from agriculture, has not been adequately controlled.

 GAO's report, which for a change I do not recommend you waste your time reading, is an effort by the GAO to talk to state officials, review 191 TMDLs, have 25 TMDLs reviewed by water resource experts, and talk to state officials who report that TMDLs "…generally do not exhibit factors most helpful for attaining water quality standards, particularly for nonpoint source pollution (e.g., farms and stormwater runoff)."

GAO tells Congress that "EPA does not have direct authority to compel landowners to take prescribed actions to reduce pollution." GAO says two key factors stymie implementation of TMDLs controlling nonpoint source pollution from farms and other sources: a lack of legal authority and sufficient funding. 

GAO does recognize, in its conclusions, that it might want EPA to work with USDA because it notes there is important data related to TMDL implementation on streams which is collected by USDA on conservation projects but this information "…remains outside of EPA's authority to obtain from USDA without landowners' consent" because GAO says EPA cannot track USDA's actions or make any subsequent changes,

GAO recommends giving EPA more authority over agriculture saying "Congress should consider revising the acts' [CWA] largely voluntary approach to restoring waters impaired by such pollution."  That means giving more permitting authority to EPA over runoff from your farming and ranching operation.

 As I said in an earlier blog, watch December actions by Washington. They are usually lumps of coal in your stocking.

Gary H. Baise is a principal at OFW Law (Olsson Frank Weeda Terman Matz P.C.). This article first appeared in Farm Futures magazine. The opinions presented here are expressly those of the author. For more information, go to www.OFWlaw.com.

Gary H. Baise is a principal at OFW Law (Olsson Frank Weeda Terman Matz P.C.). This article first appeared in Farm Futures magazine. The opinions presented here are expressly those of the author. For more information, go to www.OFWlaw.com. - See more at: http://www.porknetwork.com/blogs/Baise-OSHAs-grain-bin-gambit-Is-it-legal-240109761.html?author=Gary+H.+Baise&aid=225969821&page=2#sthash.XTlCKflL.dpuf

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John George, P.E.    
Uniontown, KS  |  January, 23, 2014 at 09:14 AM

As the agricultural engineer who played a major role developing the CAFO Permitting process and language before leaving EPA in 1974 to begin helping ag producers deal with EPA and State regulatory agencies, my firm has since served over 5,000 projects in forty states. It is interesting that the environmental activists and bureaucracy routinely impune livestock feeding as the major source of nutrients into our nations waters although non-discharging permits have been in place and enforced since the 70's for all large CAFO's. There is no data to support that statement, but no one bothers to refocus on the actual sources. Obviously most of the Ecos just accept and want to believe that CAFO's are the major culprit! Also as Technical Service Providers for a number of Watershed Districts, it is interesting to us, that while sediment is widely acknowledged as the primary pollutant into our nations waters, the Corps of Engineers (EPA's primary co-regulator of the Clean Water Act) routinely interprets and enforces Section 319 of the Act to require preclusively burdensome mitigation for virtually all of the projects with extensive sediment trapping and retention capabilities throughout rural America. Resultingly, most watershed projects that would provide significant benefits in flood and water quallity protection have progressively been foregone over the last couple of decades.

Thom Katt    
Midwest  |  January, 23, 2014 at 12:36 PM

Thank you for sharing your insight and experience John.

KB    
VT  |  January, 23, 2014 at 09:55 AM

I don't understand how people can look at water quality as an inconvenience or something that gets in the way of business. It is one of three essential needs for life. Profit does not matter if there is no drinkable water.

Thom Katt    
Midwest  |  January, 23, 2014 at 12:33 PM

VT, no one said water quality is an inconvenience. You are drawing conclusions without facts to support them. Farmers are good stewards of the land and have been getting better for decades. Soil conservation methods and efforts have reduced erosion and nutrient loss on thousands of acres of land. I believe Mr. Baise's point is that some federal govenment agencies don't do well at sharing information, spend time developing biased information, don't do well at supporting the mission of other agencies and work more from agenda driven, preconceived notions than they work with facts. The Chesapeake Bay Initiative is one case in point, where EPA didn't work with USDA NRCS in "allocating" pollution contributions to various sources. From my personal exerience, I can tell you that tax dollars spent by EPA under CWA section 319 have been largely wasted. Other federal, state and local government agencies and NGOs have come to recognized 319 as the brand on a cash cow for their administrative expenses. About 28% of every grant goes to administrative expenses. Essentially, that translates into pay salaries of people who will not do any work on the project and probably won't even review the paper work. Unfortuantely it seems more and more like the GAO is being infiltrated and manipuplated by staff and management who write the conclusion of their research first and then go in search of the facts to justify the conclusion.

Thom Katt    
Midwest  |  January, 23, 2014 at 12:33 PM

VT, no one said water quality is an inconvenience. You are drawing conclusions without facts to support them. Farmers are good stewards of the land and have been getting better for decades. Soil conservation methods and efforts have reduced erosion and nutrient loss on thousands of acres of land. I believe Mr. Baise's point is that some federal govenment agencies don't do well at sharing information, spend time developing biased information, don't do well at supporting the mission of other agencies and work more from agenda driven, preconceived notions than they work with facts. The Chesapeake Bay Initiative is one case in point, where EPA didn't work with USDA NRCS in "allocating" pollution contributions to various sources. From my personal exerience, I can tell you that tax dollars spent by EPA under CWA section 319 have been largely wasted. Other federal, state and local government agencies and NGOs have come to recognized 319 as the brand on a cash cow for their administrative expenses. About 28% of every grant goes to administrative expenses. Essentially, that translates into pay salaries of people who will not do any work on the project and probably won't even review the paper work. Unfortuantely it seems more and more like the GAO is being infiltrated and manipuplated by staff and management who write the conclusion of their research first and then go in search of the facts to justify the conclusion.


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