The Fertilizer Institute: Water Works

Capitol Building

Getting a handle on the legislative outlook for 2011 requires first a look to the recent past. After the wild 2010 mid-term election, the dust is still settling in Washington, DC. In November, voters gave the Republicans a majority in the U.S. House of Representatives and allowed the Democrats to hold onto the majority by a slim margin in the Senate. In the House, Republicans won more than 60 seats.

As in past elections, being an incumbent was not much of a safety net. Three senior Democratic Committee Chairmen — Rep. John M. Spratt, Jr. (SC), the chairman of the House Budget Committee, Rep. Ike Skelton (MO), chairman of the House Armed Services Committee, and Rep. James L. Oberstar, chairman of the House Transportation and Infrastructure Committee, were all defeated.

In the Senate, Blanche Lincoln (D-AR), Chairman of the Senate Committee on Agriculture, Nutrition and Forestry was defeated by Rep. John Boozman (R-AR). Republicans also gained seats in Florida, Illinois, Pennsylvania, Kentucky, Wisconsin, North Dakota and Alaska.

An 11th-hour effort was underway in the “lame duck” session of Congress to include S.1816 The Chesapeake Clean Water and Ecosystem Restora­tion Act, and in the potential Lands, Waters and Wildlife omnibus legislation. The fertilizer industry and the agriculture community should be aware that S.1816 would pose significant negative changes to the Clean Water Act.

Advocates of the bill are claiming that the tough measures found in S.1816 are justified based upon the results of the draft USDA “Assessment of the Effects of Conservation Practices on Cultivated Cropland in the Chesa­peake Bay Region” showing the contributions of agriculture to the Bay. In order to address false claims such as these, The Fertilizer Institute (TFI), the Agricultural Retailers Association (ARA) and other members of the Ag­ricultural Nutrient Policy Council (ANPC) recently asked LimnoTech, one of the nation’s leading water sciences and environmental engineering consulting firms, to compare the assumptions and numbers found in the USDA study and EPA‘s Total Maximum Daily Load (TMDL). The comparison revealed astounding differences between USDA and EPA data concerning pollutant loadings for the Chesapeake Bay. The technical conclusions reached by LimnoTech about the implications of the very different data used by USDA and EPA call into serious question the validity of EPA’s scientific conclusions regarding the role of agriculture as a source of pollutants and the need for the overly aggressive measures now called for by EPA.

Water, Water Everywhere

Another water-related issue is coming from Washington — but this time from EPA. Partially in response to an environmental litigant’s lawsuit, EPA has taken over the development of numeric nutrient criteria (NNC) for the state of Florida. The first of these were issued in November. Wisconsin, responding to pressures from EPA and the environmental community, is now adopting NNC for phosphorous. Kansas may very well be the next battleground for this issue and TFI currently estimates that approximately 44 states have NNC under development in one form or another. Most states’ NNC work is in a holding pattern as states are all watching to see what EPA does with the NNC for Florida, under the reasonable assumption that the approaches/levels used there will be what EPA will accept from other states.

What are NNC and why do they matter? Nutrient criteria are part of the internal, technical workings of the Clean Water Act (CWA), within the general grouping of the CWA technical program called “Water Quality Standards” (WQS). The WQS program and the water quality criteria within it are the “guts” of Clean Water Act implementation.

Regulators use water quality criteria as one of the direct guides to allowable pollutant quantities in a National Pollutant Discharge Elimination System (NPDES), permit holder’s discharge and to determine what is considered acceptable in discharges from non-point sources. Additionally, water quality criteria are used by regulators to judge if a water body contains too much of a specified pollutant and if it is unable to meet its “designated use,” thereby classifying it is as “impaired” under the CWA.

Once a water body is identified as “impaired” under the CWA, the TMDL program is triggered with its cascading requirements and issues, as is now unfolding in the Chesapeake Bay.

Nutrient criteria within the WQS can be classified as either narrative or numeric. An example of a narrative nutrient criteria might be “No phosphorous will be allowed in this stream at levels that will prevent desired levels of aquatic flora and fauna.”

Fighting Back

In early December, TFI filed a legal challenge to EPA’s rule. The lawsuit was filed in the U.S. District Court for the Northern District of Florida Pensacola Division. In the complaint, the lawsuit contends that:
•  EPA’s Final Rule is unlawful and should be vacated because it establishes water quality criteria that ignore causation, regulate water bodies that are achieving their designated use and restrict nutrients that do not cause impairment.
•  By using simple and overly broad statistical principles EPA’s rule will classify a certain percentage of water bodies as impaired when they in fact are not.
•  EPA’s new criteria usurp Florida’s statutory authority to develop standards and are fundamentally in conflict with Florida’s existing efforts to implement narrative water quality standard for nutrients.
•  EPA unlawfully ignored the requirements that water quality criteria be based on true biological impairment and instead established numeric criteria for nitrogen and phosphorus in water bodies where they would not actually cause such an imbalance.
•  EPA’s shortcut numeric criteria are not based on sound scientific rationale or scientifically defensible methods because they would unlawfully restrict nitrogen and phosphorus in lakes, streams and springs that are not impaired. In other instances, where the lakes, streams or springs are impaired, EPA’s standards will unlawfully regulate nutrients that are not causing the impairment.
•  EPA’s regulation wrongly assumes that nitrogen and phosphorus levels above EPA’s numeric criteria will cause algal growth and thus impairment.
•  EPA has ignored its own Science Advisory Board and set nitrogen standards when in fact nitrogen is not limiting (and thus not responsible) for impairment in fresh water bodies.

A New Climate For Climate Change

The significant change in the makeup of the new Congress most likely mean that “cap-and-trade” style climate legislation is off the table — at least in the short term. As is the case with water issues, we are faced with a very active (and activist) EPA that is moving forward with several rules to control greenhouse gas emissions. In total, at least six separate rule-makings that could impact the fertilizer industry. While several of these rules are the subject of legal challenges from other potentially regulated industries, EPA has made it clear that it believes it has the authority to move forward and is doing so.

Topics:

Leave a Reply

Legislation Stories

LegislationUSDA: Quick Implementation Of Disaster Assistance Programs A ‘Top Priority’
July 9, 2014
USDA has processed 106,000 payments to farmers in 40 states across the country who suffered livestock and grazing losses between Oct. 2011 and passage of the 2014 Farm Bill. Read More
LegislationTFI Praises White House For Signing WRRDA Into Law
June 11, 2014
The bill streamlines U.S. Army Corps of Engineers projects, prioritizes authorized waterway improvements and provides needed adjustments to the Inland Waterways Trust Fund. Read More
LegislationAg Policy: Plenty Of Fertilizer Issues Ahead
January 2, 2014
From West Fertilizer to the Chesapeake Bay, fertilizer producers and dealers are keeping an eye on several Beltway developments in 2014. Read More
LegislationLack Of Farm Bill Leaves Farmers Facing Uncertainty In 2014
December 13, 2013
With just a few legislative working days remaining in 2013, the likelihood of a new farm bill is waning, leaving farmers in limbo once again. Read More

Top 100 Articles

CropLife 100CHS: Driving Momentum To Help Farmer-Owners Grow
December 11, 2014
CHS Inc., the nation’s leading farmer-owned cooperative and a global energy, grains and foods company, must capture new opportunities to Read More
CropLife 100BRANDT, Verdesian Ink Distribution Agreement
December 9, 2014
The agreement grants BRANDT the exclusive right to sell and market Verdesian’s patented Steric chemistry in the Turf and Ornamental and eastern U.S. ag markets under the BRANDT Reaction product line name. Read More
CropLife 100CropLife 100: The Colors Of Custom Application
December 5, 2014
Although many color spray rigs are in the yards of the nation’s top ag retailers, the majority of them still come in only a few shades. Read More
CropLife 100Pinnacle Invests In Meridian Agriculture Distribution
December 4, 2014
Meridian will provide retailers with supplier-branded products and numerous opportunities to differentiate themselves from their competitors. Read More
CropLife 100CropLife 100: Entering A New Seed Era
December 4, 2014
The seed category has been re-vitalized during the past few years, and more good news (and varieties) are headed the industry’s way in 2015. Read More
CropLife 100CropLife 100: The Depressed State Of Fertilizer
December 3, 2014
Following downright giddy growth earlier this decade, fertilizer sales have fallen back down to earth the past two years. Read More

Latest News

Seed/BiotechKaren Arthur Joins AgriThority As Seed Treatment Produc…
December 19, 2014
Prior to joining AgriThority, Arthur directed research and development programs, overseeing laboratory and field research, to build the Valent U.S.A. seed treatment portfolio. Read More
EquipmentJohn Deere To Sell Crop Insurance Business
December 19, 2014
Deere & Co. has reached a definitive agreement to sell its crop insurance business, subject to regulatory approval, to Farmers Mutual Hail Insurance Co. of Iowa. Read More
Crop InputsNufarm Fills Regulatory VP Position
December 18, 2014
Nufarm announced today that Rob Schwehr has been promoted to the position of Vice President of Innovation & Regulatory Affairs for Nufarm Americas. Read More
Seed/BiotechReport: China Approves Viptera Corn, U.S. Officials Awa…
December 17, 2014
Chinese authorities have informed some agriculture industry officials the government has approved U.S. imports of a type of genetically modified corn developed by Syngenta. Read More
FertilizerMonty’s Plant Food Brings In New Sales Rep
December 16, 2014
Monty's Plant Food Company has hired Warren Kearns as its newest Sales Representative for the South Carolina area. Read More
EquipmentHagie Wins 2014 CropLife IRON Product Of The Year Award
December 15, 2014
The self-propelled sprayer maker has a hit on its hands with the new STS Series model. Read More
Syngenta
Seed/BiotechSyngenta Sees China Approving Contentious GMO Corn Soon
December 15, 2014
Syngenta will make an announcement when it receives official documentation from China that Agrisure Viptera corn, known as MIR 162, has been cleared for import. Read More
Crop InputsVerdesian Life Sciences Names Vice President Of Communi…
December 15, 2014
Amy Bugg will oversee the execution of all promotional strategies for the corporate brand and the complete product portfolio. Read More
StewardshipFarmers, Retailers Attend 4R Certification 4U Workshop
December 15, 2014
More than 160 farmers and ag retailer attended the “4R Certification 4U” workshop December 12 to learn more about the 4Rs of nutrient stewardship, water quality research in the area and cost-sharing opportunities. Read More
Matt Hopkins10 Best New Agriculture Apps For 2015
December 15, 2014
These new agriculture apps are certain to help ag professionals do their jobs more efficiently in 2015 and beyond. Read More
ManagementARA Learnings, Retail Buying Intentions: Welcome To Cro…
December 12, 2014
This informal video program puts news and events effecting retailers into context, and features Editors Paul Schrimpf and Eric Sfiligoj. Read More
Seed/BiotechMonsanto Herbicide-Tolerant Technology Closer To Commer…
December 12, 2014
The final EIS moves Monsanto one step closer to the introduction of Bollgard II XtendFlex cotton and Roundup Ready 2 Xtend soybeans, paving the way to provide access to dicamba-tolerant soybeans and cotton. Read More
Seed/BiotechUSDA Issues Final Environmental Impact Statement On Her…
December 12, 2014
The USDA Animal and Plant Health Inspection Service (APHIS) is issuing a final environmental impact statement on varieties of cotton and soybeans that have been genetically engineered for resistance to several herbicides, including the one known as dicamba. Read More
CropLife 100CHS: Driving Momentum To Help Farmer-Owners Grow
December 11, 2014
CHS Inc., the nation’s leading farmer-owned cooperative and a global energy, grains and foods company, must capture new opportunities to Read More
LegislationARA Applauds CFATS Passage Prior To Holiday Adjournment
December 11, 2014
The streamlined bill provides a four-year authorization of the CFATS program and guidance to DHS on key issues of chemical facility security Read More
Seed/BiotechBayer CropScience’s ILeVO Approved By EPA
December 11, 2014
EPA has approved ILeVO, the only seed treatment that protects the root system against infections caused by the Sudden Death Syndrome fungus and has activity against dangerous nematodes. Read More
Biologicals in Emerging Markets Map.
Crop InputsBiocontrols Could Quadruple By 2025; Will Regulators Pl…
December 11, 2014
The European experience with GMOs offers caution — and a promise — for biologicals. Read More
Crop InputsBASF Donates $75,000 To Feeding America
December 10, 2014
The donation will support Feeding America’s National Produce Program, an initiative that helps with planning, transportation and logistics to ensure fresh produce deliveries to the 200 member food banks around the country. Read More