Environmental issues and regulations are becoming a significant concern for agriculture.  Some of these environmental concerns include management of nutrients, management and use of water supply, and the potential impact on food from per and polychlorinated alkyl substances (PFAS).  These pressures come from federal and state lawmakers and environmental groups.

Jurisdictional Waters

There has been some regulatory relief with the newly-defined jurisdictional waters in the Navigable Waters Protection Rule (NWPR) that became final on June 22, 2020.  Many in the regulated community considered the NWPR as a more-reasonable approach to defining regulated waters.  To be fair, many environmental groups were not pleased with the new definition.

The agriculture industry, in particular, viewed the rule favorably.  The previous definition of the waters of the United States (or WOTUS) under the Obama administration was far-more encompassing.  This definition would likely have put significant limitations on farming practices.

Navigable Waters Protection Rule

The final NWPR appreciably narrowed the definition of waters of the United States.  The new rule also provided some “certainty” with respect to regulated activities.  This is important, as uncertainty tends to stop or limit growth for businesses.

As we have discussed this issue in detail in other blogs as well as in publications, we won’t go into too much detail.  But we will point out the obvious:  depending on the outcome of the 2020 Presidential election, this rule may again undergo potentially-significant modifications.

In contrast to federal regulations, many states are taking a different approach to ag-environmental issues.  Here are just a couple of observations.

Michigan New Permit Requirements

On April 1, 2020, the Michigan Department of Environment, Great Lakes, and Energy’s (EGLE) permit for large livestock farms took effect.  An article in MiBiz states, “The new permits are intended to enhance protection of the environment and public waters from excessive nutrient pollution and aim to reduce the effect animal waste has on the health of the Great Lakes, inland lakes and rivers.  To protect the public and waters, the state is required to update the National Pollutant Discharge Elimination System (NPDES) general permit covering CAFOs every five years.”

Picture of Farming

Farms are facing many environmental pressures from management of nutrients and water to of the potential impact of PFAS (Photo by James Baltz on Unsplash).

Michigan Farm Bureau’s View of New Rule

According to Michigan Farm Bureau’s Laura Campbell, Manager of the Ag Ecology Department, “Throughout the NPDES permit review process and public comment period, farmers have expressed ongoing concerns over the lack of factual justification for many of the new permit requirements.  Unfortunately, the final permit is still considered overly burdensome, increasing farm costs and threatening their economic viability.”

Michigan Farm Bureau President, Carl Bednarsi, said, “Throughout the development phase of this draft permit, Michigan Farm Bureau, the state’s livestock industry, along with technical staff from Michigan State University and USDA’s Natural Resource Conservation Service provided recommendations to EGLE staff.  Unfortunately, the final permit is a demonstration of government overreach and regulatory creep that will be economically catastrophic to Michigan agriculture, while providing little, if any, environmental improvements.”

Challenge of Rule Provisions

A coalition of farm groups is challenging the new rule, including:

  • The arbitrary restriction on the amount of phosphorus in the soil to which manure can be applied.
  • The mandated installation of permanent, 35-foot vegetative buffer strips around every surface water, tile-line intake, and ditch located on any land to which permitted farm manure nutrients are applied, in addition to the existing 100-foot prohibitions from applying manure nutrients from those sites. The permit invalidates work of the Michigan Agriculture Environmental Assurance Program by denying environmentally-conscious and compliant farms the program’s promised benefit.
  • The permit enforces additional restrictions, some of which are unspecified, based on a farm’s location within a Total Maximum Daily Load watershed.
  • A virtual ban on wintertime land application of manure for both permitted farms and non-permitted farms receiving manure from the permitted farms.

For more information, see the Michigan Farm Bureau and the Michigan Department of Environment, Great Lakes, and Energy.

Wisconsin’s New Policy

The Wisconsin Department of Natural Resources’ (DNR) new policy regarding high-capacity wells is causing some controversy in the Badger state.  A high-capacity well is one that draws 100,000 gallons or more per day.

Agriculture is one of the largest users of waters.  According to the University of Michigan’s Center for Sustainable Studies, the two largest users of fresh water are thermal electric power at approximately 41% and irrigation at approximately 37%.

Environmentally-Conscious Criteria

According to the Wisconsin Farmer, “The Department of Natural Resources is adding a new list of environmentally-conscious criteria to high-capacity well applications amid a contentious legal battle… The agency now has the power to consider whether high-capacity wells would potentially disrupt other nearby bodies of water, giving the DNR more power over the wells.”  See Wisconsin DNR High Capacity Well Application Review Process.

The change comes after the Wisconsin Attorney General, Josh Kaul, reversed a 2016 opinion from his predecessor, Brad Schimel, who said the DNR did not have explicit authority to consider if high-capacity wells impacted other water bodies, such as lakes.

Power Grab

Ryan Owens is a professor of political science and faculty affiliate in the Law School at the University of Wisconsin-Madison.  In a September 14, 2020, article in National Review, he stated, “Wisconsin’s attorney general seeks to rob the state’s citizens of their sovereignty.  He is trying to grab power that does not belong to him and wants to make mischief while avoiding oversight.  This lawless behavior — aimed today at Wisconsin’s farmers and tomorrow at small towns — must be checked.”

High-Capacity Wells Important to Farmers

Ryan Owens also stated in the article, “These wells are critical to many of Wisconsin’s farmers, who use them to irrigate crops and to raise livestock.  [Many small towns also use high-capacity wells.]  While access to such wells is important during a “regular” farming cycle, if there is such a thing, it is even more so during times of drought, when deep, high-capacity wells can serve as their only sources of water.  Simply put, access to high-capacity wells can make the difference between prosperity or destitution for Wisconsin farmers.”

For a deeper dive into this issue, see this client alert (The Continued Saga of High Capacity Well Regulation in Wisconsin) by Lawyer, David Crass, at Michael Best.

Federal Lawmakers on Proposed CAFO Moratorium

Senator Cory Booker (New Jersey) put forward a new bill late in 2019 titled the Farm System Reform Act (FSRA).  This bill’s aim is “to place a moratorium on large concentrated animal feeding operations, to strengthen the Packers and Stockyards Act, 1921, to require country of origin labeling on beef, pork, and dairy products, and for other purposes.”

Immediate Moratorium

Senator Booker states on his website, “If passed, FSRA will place an immediate moratorium on new large-scale facilities known as CAFOs (Concentrated Animal Feeding Operations).  It will also place limits on existing CAFOs.  It will devote $100 billion over a period of ten years to helping CAFO owners transition to more sustainable forms of agriculture.  By 2040, the bill hopes to phase out the largest CAFOs.”

Senator Booker said, “Large factory farms are harmful to rural communities, public health, and the environment and we must immediately begin to transition to a more sustainable and humane system, such as raising pasture-based livestock, growing specialty crops, or organic commodity production.”

Whether this is simply a political move or a genuine effort to limit or eliminate CAFOs is anyone’s’ guess.

PFAS and Agriculture

The concerns about the impact of PFAS on agriculture may be the most-consequential environmental issue for our nation’s farmers.  There have been some notable instances of PFAS impacting farms.  PFAS found at a farm in Maine was introduced through the common practice of amending the soil with biosolids.  These biosolids, or sludge, are generated at local waste treatment plants and land applied to farm fields.  However, unbeknownst to the farmer in Maine, the waste treatment plant’s influent included PFAS from local industry.  This PFAS was then concentrated in the biosolids and applied to his land.

Farms Impacted by PFAS

Another notable case was in New Mexico.  A large dairy farm was hydrogeologically downgradient from a military base.  Similar to many military facilities, this base used Aqueous Film Forming Foam (or AFFF), which is a known source of PFAS, to fight fires.  The farm’s water was contaminated with PFAS, which meant the property, dairy cows, and milk were no longer assets but significant liabilities.

There are many unknowns regarding the environmental impact PFAS poses to agriculture, and it will likely take several years to before we have a handle on this issue.

This is a brief look at some important ag-environmental issues.  It’s becoming increasingly complex and, as mentioned, political as well.

Environmental Expertise in Agriculture

Dragun Corporation has worked, written, and presented on agricultural-environmental issues for decades.  This includes water supply and assessment of the source of nutrients in groundwater and surface water, and more recently, we have helped to assess the potential impact of PFAS on agriculture.

If you have questions or concerns about an environmental issue with respect to agriculture, please contact us; chances are, we have some insights and may be able to help you.

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