Keeping an Eye on EPA Policies, ESA Reform, Pesticide Lawsuit


by Todd Neeley, DTN Staff Reporter

OMAHA (DTN) — The U.S. Environmental Protection Agency will try to make sense of nearly 800,000 public comments in finalizing the waters of the United States rule early in 2015. Ag groups and others opposed to the rule question whether EPA can make a serious effort to respond to concerns within six months after the public comment period closes in November. In addition, EPA will face added pressure to enforce the rule at a time when the agency is shedding staff.

EPA said in a statement to DTN that the agency has the necessary staff to finish the process on time. EPA also said the process will be made easier because many comments were identical letters sent through mass mailings. “The agencies have brought in field staff and contractor support to help manage this significant workload, and as a result will be able to respond to all comments adequately,” EPA said.

Tracy Meehan, former EPA assistant administrator for water, said the rule is likely to face a legal challenge. “They have to get it done under the Administrative Procedure Act and to protect their position in the inevitable litigation to follow,” he said. “Moreover, WOTUS is a lot smaller than the carbon rules, which is much larger in terms of the number of comments, etc.”

Don Parish, senior director of regulatory relations for the American Farm Bureau Federation, said he expects bipartisan legislative efforts. “We already are having people on the Hill reach out asking 'where do we go from here?'” he said. “Basically they're saying, 'how can we make this bipartisan?' I am stunned about the level of concern about this proposal. I think you're going to see industry pull out all the stops to pull back on the administration first. If the administration goes final, it will go to litigation.”

Conventional wisdom is the Obama administration is unlikely to sign Clean Water Act bills from a Republican Congress. In addition, once finalized, an expansion of EPA authority would happen at a time when the agency is cutting staff through employee buyouts. Agency staffing is expected to be at its lowest level since the late 1980s.

Ray Kagel, a former U.S. Army Corps of Engineers field officer and owner of Idaho-based Kagel Engineering, said staff cuts could make it difficult to keep up with the new rule. “The EPA Corps of Engineers are currently and always have been understaffed to fully administer and enforce Section 404 CWA regulations,” he said.

When Kagel worked for USACE, low staff numbers led to many complaints and violators going untouched. “If the new rules and definition of WOTUS are implemented, then I suspect that the agencies will indeed seek bigger budgets from Congress for more personnel,” said Kagel.

Ethan Mathews, director of public policy for the National Corn Growers Association, said EPA needs to make many changes to the rule to address agricultural concerns. “As NCGA indicated in our comments on the WOTUS proposed rule, EPA's proposal will require substantial revision before it can meet the agency's stated goal of providing certainty to the regulated community,” he said.


Agriculture interest groups have their eyes on potential movement on Endangered Species Act reform, as well as the recently proposed National Ambient Air Quality standards for low-level ozone pollution.

Although the ESA has listed approximately 1,600 species as endangered in the past 41 years, just 29 have been recovered. Habitats for 70{18648621dc58566f60964eb5074c58f5f97501fe95033d5d25ee4862e704a74a} of all listed species are found on private land — putting farmers and ranchers at legal risk in how they use their land. Most recently the U.S. Fish and Wildlife Service listed the lesser prairie chicken as threatened, raising eyebrows among landowners in Kansas, Oklahoma, Texas, New Mexico and Colorado.

Ryan Yates, a director of Congressional relations at the American Farm Bureau Federation, said 2005 was the last time Congress made a serious attempt at ESA reform when a bipartisan bill passed the House and died in the Senate.

“The political winds have made it difficult to take on environmental reform legislation,” he said. “The good news is we're seeing that because of increasing regulatory pressures from USFWS, we've seen members of Congress from both sides of the aisle begin to look at the ESA differently.”

In 2013, a group of 12 federal lawmakers formed the ESA Congressional Working Group that issued a final report in February 2014 with a number of reform recommendations. It led to the House passing a reform bill requiring data used by federal agencies for ESA listing decisions to be made publicly available and accessible through the internet. It required the federal government to disclose data used prior to an ESA listing. The bill also would require the USFWS to track funds spent on litigation and cap attorney's fees.

In the coming year, the Senate may take up legislation from Sen. John Boozman, R-Ark., to address federal designation of critical habitats even when species are not present in suitable habitats, Yates said.

“This shows that this is not a partisan issue anymore,” Yates said. “There is recognition that ESA is not a regional issue either.”

The proposed National Ambient Air Quality standards for low-level ozone are also worth watching. EPA proposed reducing the standard for ozone-depleting pollutants from 75 parts per billion to as low as 65. The potential concern for agriculture is because EPA already regulates larger point-source polluters, lowering the standard could require farmers living in non-attainment areas to reduce ozone emissions.


There are a number of EPA-related lawsuits the agriculture industry will continue to monitor this year.

The Center for Biological Diversity and other environmental groups filed suit Jan. 20 2011, alleging EPA violated the Endangered Species Act by not consulting federal wildlife officials about the potential effects pesticides and other ag chemicals have on hundreds of species.

The lawsuit originally listed more than 300 registered pesticides and other ag chemicals and their potential effects on about 200 species. The number of chemicals and species was narrowed down in a refiling of the case. The outcome could make it more difficult for farmers across the country to use the chemicals they need.

Meanwhile, the U.S. District Court for the Northern District of California in San Francisco ruled in October 2014 EPA had not failed to initiate ESA consultation on the chemicals. The ruling allowed the plaintiffs to file an appeal with the Ninth Circuit Court where it is still pending.

In addition, an American Farm Bureau Federation lawsuit in the U.S. District Court of Minnesota to prevent EPA from releasing further information about concentrated animal feeding operations, or CAFOs, remains in limbo. Since then, EPA released a proposed electronic reporting rule opposed by agriculture groups. Their concern is the rule would allow personal information of CAFO owners to be more readily available.

In addition, a lawsuit filed by the Gulf Restoration Network in a U.S. district court in Louisiana attempting to force EPA to set numeric standards across the Mississippi River basin to reduce nutrients runoff leading to hypoxia in the Gulf of Mexico, also continues on.

The case moved to the U.S. Court of Appeals for the Fifth Circuit, where environmental groups seek to overturn the U.S. District Court for the Eastern District of Louisiana's decision to stay the lawsuit to allow EPA to respond. Environmental groups contend basin states have not done enough to address nutrients runoff. EPA still could be required to set specific numeric standards, affecting millions of farmers.



© Copyright 2015 DTN/The Progressive Farmer. All rights reserved.

Posted by Jami Howell

Notify of
Inline Feedbacks
View all comments
Would love your thoughts, please comment.x