Federal regulations and pending legislation affecting nutrient management


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For more: http://www.extension.org/67738 Decisions are being made everyday in Washington, D.C. by federal agencies, Congress, and the courts on how farmers and ranchers must manage their manure and their operations. It is important that producers and experts in the field educate their elected representatives and regulators on the important use of nutrients and our efforts to protect the environment at the same time we attempt to feed an ever-growing world.

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  • CWA defers to states on setting WQS
  • Numeric criteria –quantitative measures For example: a 7 day average of 5 milligrams per Liter of dissolved oxygen
  • August 2008, environmental advocacy groups sue EPA for not establishing numeric nutrient criteria for Florida surface waters.January 2009, EPA determines statewide numeric criteria necessary for Florida to be in compliance with the Clean Water Act. EPA commits to promulgating phosphorus and nitrogen criteria for Florida streams, lakes, canals, estuaries, and coastal waters.August 2009, EPA & environmental groups enter into a proposed consent decree mandating that EPA propose numeric criteria January 2010, EPA proposes numeric nutrient criteria for all of Florida’s lakes, streams, springs, and canals.FDEP also proposed criteria for some waters – it passed the FL legislature, was signed by the governor, and sent to EPA for approval. This was an attempt by FL to regain state control of water quality standardsNovember 2012, EPA approved FDEP partial state criteria but also proposed criteria for waters not covered by the state criteriaMarch 2013, FDEP and EPA reach agreement calling for legislation that will put the state in charge of determining numeric limits on nutrients in state waterways.
  • TFI’s initial legal challenge of EPA’s efforts to impose NNC in Florida was joined by National Cattlemen’s and FL Cattlemen’s Association and other interested parties.It resulted in a decision inU.S. District Court to vacate the streams standard based on lack of scientific grounding. This decision set the stage for the recent EPA FDEP agreement.
  • 2008, environmental groups sue EPA alleging that the individual states within the MRB had failed to make adequate progress in addressing nutrient issues or developing nutrient criteria2011, EPA issued a letter denying the petition’s requestMarch 2012, environmental groups sue EPA over its decision not to develop federal numeric nutrient criteria (NNC) for the MRBTFI, Farm Bureau,
  • 13 states intervened in support of EPA The Fertilizer Institute (TFI), the American Farm Bureau Federation (AFBF), the National Pork Producers Council (NPPC), Agricultural Retailers Association (ARA), and the National Corn Growers Association (NCGA), submitted a joint memorandum as interveners in opposition to the plaintiffs and in support of the Environmental Protection Agency (EPA).Our brief argues that:the plaintiffs failed to show the necessity of EPA setting a multi-state NNC, that the Clean Water Act specifically gives deference to the states in setting water quality standards, and the plaintiffs failed to show that the states in the MRB are failing to improve water quality standards
  • If surface water monitoring indicate that a water body or segment are impaired, it is placed on the 303(d) listThe stateis then required to develop a strategy for WQS attainment
  • Dates back to 1992 lawsuit between OK and ARIn 2005 the OK Attorney General sued the poultry industryOK requested a TMDL and AR was not thrilled about itIn 2009 EPA developed a TMDL for Phosphorus in the watershedThat TMDL should be finalized in fall of this year
  • The largest TMDL ever developed by EPA identifies the reductions of nitrogen, phosphorus and sediment across NY, PA, MD, DE, VA, DC, and WVThere are actually 294 TMDLs, one for each of the three pollutants for 98 impaired Bay segments (eg - Maryland drains to 58 of the segments and will be subject to 174 TMDLs). The TMDL sets Bay watershed limits requiring a 25 percent reduction in nitrogen, 24 percent reduction in phosphorus, and 20 percent reduction in sediment by 2025
  • EPA will conduct oversight of WIP implementation and states’ progress toward meeting two-year milestonesFarm Bureau, TFI, the National Association of Home Builders, and others sued arguing that the EPA overstepped its legal authority and encroached on the states’ responsibilities by setting specific allocations for nitrogenThe suit also questions the validity of the models used to help establish nutrient loads in the TMDLOral arguments were heard in October 2012
  • 4R nutrient stewardship provides a framework to achieve cropping system goals – increased production, increased farmer profitability, enhanced environmental protection, and improved sustainability. To achieve those goals the 4Rs utilize fertilizer best management practices that address the Right Fertilizer Source, at the Right Application Rate, the Right Time for the plant to utilize the nutrients, and in the Right Place for optimal crop uptake. The four “rights” are necessary for sustainable plant nutrition management. The assessment of any planned nutrient management practice must consider the economic, social, and environmental effects to determine whether or not it is a “right” practice for that system. The 4R nutrient stewardship framework is an essential tool in the development of sustainable agricultural systems because its application can have multiple positive impacts. There is an immediate connection between applying the right nutrient source at the right rate, the right time, and in the right place and the beneficial impacts on components of the natural capitol evidenced through better crop performance, improved soil health, decreased environmental pollution and wildlife protection.
  • The 4R nutrient stewardship framework is globally applicable, as it can be applied to a diverse range of agricultural system types and sizes. The site specificity of 4R means it can be applied in areas of rangeland and pasture used for grazing annually seeded crops, greenhouse production, or one a small garden. Because it is not a one practice or one plan for all program, it can be applied to a diverse range of soils and a diverse range of climates. The overarching goal of 4R is to match nutrient supply with crop requirements and to minimize nutrient loss from farm fields.
  • Picture – Lake Erie 2011October 2011 – OH Dept. of Ag, OH EPA, OH DNR adopt 4RsMarch 2012 – Above groups issue final report naming 4Rs Foundation of Nutrient ManagementJune 2012 – Legislature Creates Healthy Lake Erie Fund, $3M – to help implement 4Rs
  • Conservation Innovation Grants are provided on a competitive basis to encourage the development of new or improved conservation practices. Regional Conservation Partnership Program (RCC) - Combines the authorities of the agricultural water enhancement program (AWEP), Chesapeake Bay watershed program, cooperative conservation partnership initiative (CCPI), and Great Lakes basin program into a regional conservation partnership program
  • NIFA and ARS are discretionary as are WIC and FSISRyan House budget – 0 Dem votes in house, 0 in SenateMurray Senate budget – 0 R votes
  • Livestockoperationshave come underseige in thepastdecade, withmulti-milliondollarlawsuitsfiledagainst individual operationsfrom Washington stateto Texas. Here’s a quicktimeline”2004 Waco, TX sued a handful of dairiesupstreamundertheCleanWaterAct as well as CERCLA (superfund) forphosphorusfrommanureappliedfields in runoff. Thedairiesdidnothave a violation of anypermitornutrientmanagement plan. Lake Waco wasneverimpaired.Oklahoma suedTysonson similar grounds, leadingtothe TMDL we’vediscussed.And in 2013 a handful of dairies in Yakima Valley in Washington Stateweresuedfornitrates in groundwater, suingthesedairiesundertheResourceConservation and RecoveryAct (RCRA).Also in thistimeframewehadsomeregulatorychallengesoverthe CWA CAFO Rule thataffectednutrientmanagement. In the 2005 decision in WaterkeeperAllicancethe 2nd circuitsaidthatnutrientmanagementplansmustbepart of a CAFO permit, subjecttopubliccomment. In 2009 EPA signed a settlementagreementwiththe Ches BayFoundaiton. Industry wasnotallowedtobe a part of thediscussionsdespitethedirectinterest in theoutcome of thosenegotiations. The CBF wantsProhibitionsonapplicationsmostmonths of theyear; and Alsowantsthird-partymanureliability
  • Federal regulations and pending legislation affecting nutrient management

    1. 1. Federal Regulations andPending LegislationAffecting NutrientManagementJeff BlackwoodDirector of Government RelationsThe Fertilizer InstituteAshley Lyon McDonald, Esq.Deputy Environmental CounselNational Cattlemen’s BeefAssociation
    2. 2. • FOR IMMEDIATE RELEASEMarch 26, 2013EPA Survey Finds More ThanHalf of the Nation’s River andStream Miles in Poor ConditionWASHINGTON — Today, the U.S. Environmental Protection Agencyreleased the results of the first comprehensive survey looking at the healthof thousands of stream and river miles across the country, finding that morethan half – 55 percent – are in poor condition for aquatic life.―The health of our Nation’s rivers, lakes, bays and coastal waters dependson the vast network of streams where they begin, and this new scienceshows that America’s streams and rivers are under significant pressure,‖said Office of Water Acting Assistant Administrator Nancy Stoner. ―We mustcontinue to invest in protecting and restoring our nation’s streams andrivers as they are vital sources of our drinking water, provide manyrecreational opportunities, and play a critical role in the economy.‖
    3. 3. Clean Water Act became law in 1972
    4. 4. MonitorWatersOther Strategies –NPDES, Sections319, 401, and 404No – 303(d)Set Water Quality Standards(WQS)Narrative or NumericYesMeetingWQS?ApplyAnti-degradationTotal Maximum DailyLoads (TMDLs)
    5. 5. Water Quality Standards (WQS)• WQS – translating broad goals into objectives• Criteria spell out conditions in a water body needed tosupport designated useDesignated Uses:– Drinking Water– Contact - swimming– Noncontact -boating– Fish consumption
    6. 6. Narrative criteria –“no toxics in toxic amounts”Numeric criteria –quantitativeNumeric Nutrient Criteria (NNC)
    7. 7. Numeric Nutrient Criteria are an issue inFlorida and the Mississippi River Basin
    8. 8. 2008 2009 2010 20132012environmentalgroups sue EPAEPAdeterminesNNCnecessaryconsent decreemandating EPApropose NNCEPAproposesNNCFDEP partial criteriapassed the legislature,sent to EPA for approvalEPA Oks partial statecriteria - proposedadditional criteriaFDEP and EPAagreement
    9. 9. TFI’s legal challenge of EPA’s efforts to imposeNNC in Florida was joined by FL Cattlemen’sAssociation and other interested partiesIt resulted in a decision in U.S. DistrictCourt to vacate the EPA stream standardbased on lack of scientific grounding
    10. 10. 2008 2011 20132012environmentalgroups petitionEPAEPA deniespetitionenvironmentalgroups file suitagainst EPA13 states andother groupsintervene onbehalf of EPAEPA issuesstatementaffirmingpriordecision
    11. 11. MonitorWatersOther Strategies – NPDES,Sections 319, 401, and 404No – 303(d)Set Water Quality Standards(WQS)Narrative or NumericYesMeetingWQS?ApplyAnti-degradationTotal Maximum DailyLoads (TMDLs)
    12. 12. Total Maximum Daily Load- calculation of the maximum amount of apollutant that a waterbody can receive and stillsafely meet water quality standardsRoughly 40,000 TMDLs Have BeenListed Across The US6,800 Of Those List Nutrients As TheCause Of Impairment
    13. 13. Chesapeake Bay• TMDL for all waters in Bay watershed–41 million acres–16.6 million people–12 million agricultural acres• Achieve water standards for N, P andsediments–60% achievement by 2017–100% achievement by 202518
    14. 14. Develop Watershed Implementation Plans(WIPs)Establish Bay TMDLSet 2 Year MilestonesMonitor ProgressEmploy Federal Steps if Inadequate ProgressHow Does Chesapeake Bay TMDL Work?
    15. 15. 4R Nutrient Stewardship4R represents the use of fertilizer Best Management Practices to ensure:– the right source -at the right time– at the right rate -in the right place
    16. 16. 4R Nutrient Stewardship• Match nutrient supply with crop requirementsand minimize nutrient losses from fields• fertilizer BMPs are site specific• Prevention vs. mitigation– Fertilizer BMPs help prevent nutrient losses from occurring– 4Rs work in conjunction with other conservation practices
    17. 17. Ohio – 4R as Foundation of StateNutrient Management Strategy
    18. 18. Farm Bill StatusCurrent Farm Billexpires September 30House and Senate AgCommittee Staffs negotiatingMarkups expected late April or May
    19. 19. Farm Bill – Conservation Title2012 bill consolidated 23 existing conservation programs into four fundamentalprogram functions, achieving $6 billion in deficit reductionWorking Lands ProgramsEnvironmental Quality Incentives Program (EQIP)Conservation Stewardship Program (CSP)Conservation Innovation Grants (CIG)Conservation Reserve ProgramRegional Conservation Partnership ProgramFour existing programs are consolidated into one – includes Chesapeake Bay andGreat Lakes BasinEasements ProgramStreamlined existing programs under one program, with two parts: Agricultural LandEasements and Wetlands Easements
    20. 20. Farm Bill FundingSequestration Cuts – Now In Effect throughSeptember 305% - most USDA discretionary programs6% - farm bill commodity and conservationCR granted authority for some flexibility but #unchangedCBO estimates cost of current farm bill overnext 10 years $975bHouse passed budget - cuts Farm Bill by $184 bSenate passed budget - cuts Farm Bill by $23 b
    21. 21. Nutrients & Livestock Operations• 2004 Dairies in Waco, Texas Sued by City of Waco• 2005 Oklahoma Sued Tyson• 2013 Washington State Dairies Sued• 2005 Waterkeeper Alliance et al v. EPA, 399 F.3d 486 (2nd Cir.2005):– Nutrient Management Plans part of CAFO permit• 2009 Chesapeake Bay Foundation Settlement Agreement with EPA– “EPA will propose more stringent permitting requirements for landapplication of manure, litter or process wastewater.”– April 30, 2013 Propose Rule; Final Rule 2014• 2011-present: New 590 Standards /Phosphorus Indices Review
    22. 22. Questions?