The Promise Of Progress On Water In 2016
December 6, 2015 After a year of investigating water challenges across the country, CropLife® magazine editors wanted to ask experts what 2016 might hold, especially for a few hot issues. Many said the nation is entering a new era of cooperation among agriculture, environmental concerns and government on water protection. But these efforts are going only so far. New lawsuits and legislation against ag interests continue to highlight the emotionally charged, combative nature of water problems.
Perhaps the latest regional nutrient stewardship conflict lies in west-central Iowa, where the Des Moines Water Works (DMWW) has filed a lawsuit in federal court against 10 drainage districts, citing their responsibility for unusually high nitrate levels in the Raccoon River. The goal of the lawsuit is to force Sac, Buena Vista, and Calhoun counties to get Clean Water Act permits for alleged water pollution discharges from farm drainage tile systems. Financial penalties are also being called for to reimburse the utility for extra costs being incurred to treat nitrate-tainted water.
Dave Coppess, executive vice president of sales and marketing at Heartland Co-op, West Des Moines, IA, says the lawsuit is now in the judgment summary phase. The trial is scheduled to begin August 8, 2016.
“Attorneys for the drainage districts are arguing that DMWW cannot seek damages given the districts have limited ability to assess taxes against property owners,” he explains. DMWW contends “implied immunity is ripe for reconsideration.” “If this is an indication of the progress so far, it’s going to be a long, expensive court case,” Coppess says.
He believes that ag retailers and farming in general nationwide have a lot at stake: “Losing this case could imply huge constraints that would be imposed against all water districts, not only in Iowa, but across the nation. If the DMWW prevails, every farm may be required to have a National Pollutant Discharge Elimination System (NPDES) permit to discharge water from a field into its respective watershed. Meeting the standards of an NPDES permit could require extensive re-plumbing of many field drainage and water management systems and substantial costs to our farmers.”
Coppess says the lawsuit will require an estimated $1 million-plus to litigate its first phase. The Agribusiness Association of Iowa (AAI) has organized an Agricultural Legal Defense Fund, a 501 (c) 3, for contributions used to defend the production agriculture industry, and there has been strong response from all sectors of agriculture to support the fund.
Another water system that made headlines for nutrient problems this summer is the Great Lakes. In fact, this year saw Lake Erie’s largest algae bloom on record, with the densest portion covering 300 square miles. Fortunately, the green carpet stayed more to the center of the lake’s western basin, towards Canada, and away from municipal water intakes.
The bloom was fueled by unusually heavy summer rains and stakeholders hope the conditions won’t repeat. “The big wild card is the weather. If spring rain is significant, there will be problems. If spring rain is moderate, then I believe there is a strong chance of the bloom being much smaller in 2016,” says Chris Henney, president of the Ohio AgriBusiness Association (OABA).
No matter the conditions, the rigorous Western Lake Erie Basin 4R Certification Program is moving full steam ahead. Launched in 2014, it now has 21 certified branch locations in the Basin states (Ohio, Michigan, and Indiana) with commitments from 50 more heading into 2016. More than 1.4 million acres of farmland are managed under the certified facilities.
On the southeast coast, Florida may be entering a new era in water protection in 2016. For the past two decades, the state’s Everglades and Lake Okeechobee regions have been the focus of regulations — and successful stewardship programs that have far exceeded nutrient load reduction goals. As he shared at a recent ag financial conference, Adam Putnam, agricultural commissioner, believes it’s time to start addressing other parts of the state, including spring sheds and a possible coming water supply crisis in central Florida.
Suggested Florida solutions, some built in to legislation set to return to the assembly in early 2016, could come through conservation easements and infrastructure improvements (such as in septic systems).
California’s Sheer Scale
Perhaps nowhere is the impact of infrastructure problems more evident than in California. As Danny Merkey, director of water resources with the California Farm Bureau Federation (CFBF), describes, it would take two weeks for him to teach a “crash course” on how the massive state’s water works. But one startling lesson he made clear: “California has enough water, we just don’t manage it well.”
Merkey explains that the state’s water infrastructure was designed 70 to 80 years ago, and “we have done nothing to update it.” In addition, that infrastructure cannot capture precipitation the way it comes today — in warmer, flashier storm systems rather than via the slow, steady melt of the Sierras’ snowpack. Finally, Merkey says water authorities have not kept up with environmental policy. “We never envisioned that policy would push so much water toward the environment as it does today,” he emphasizes.
But 2016 holds promise. CFBF and its allies have the potential to start nailing down some of the new water storage projects that will be coming before the California Water Commission, including the first down payment on the water infrastructure in over 40 years (funded by a bond issue eight years in the making). “It’s just a down payment, not nearly what we need, but you can’t make up for 40 years of lost time overnight,” Merkey says.
Also now in the works are projects to divert excess precipitation from a possible El Nino this winter. Pilot projects could direct water flow onto prime locations for groundwater recharge.
Merkey says worries for 2016 include how to educate people who really don’t understand the complexity of California’s water. Then too, agriculture faces frustrating roadblocks that some parties throw up to water solutions. Opponents’ primary concern: Making new water available would induce growth in an already development-heavy state.
Federal Intervention
Development and agricultural runoff have been concerns in the Chesapeake Bay watershed for decades. Fortunately, collaborative efforts are growing here. Mike Twining, vice president of sales and marketing, Willard Agri-Service, Worton, MD, reports the newest partnership in this watershed is the Chesapeake 4R Alliance, cofounded by the Delaware Maryland Agribusiness Association and The Nature Conservancy. It’s the first public/private partnership to improve water quality in the Chesapeake through a solution that’s also good for agriculture. The effort aims to increase local 4R nutrient stewardship by bringing together agribusiness, conservation groups, researchers, and government agencies — and Twining is on the steering committee.
In November, Twining sat on a public panel discussion at Washington College to discuss farming and clean water. “It was sponsored by the Sassafras River Association and the Chester River Association in coordination with the Center for Environment & Society at Washington College and was a great opportunity to increase communication and understanding,” he says. Among other topics, Twining talked about the proactive steps farmers are taking throughout the bay watershed and how agriculture should be the preferred land use in the bay watershed by all parties concerned about cleaning up the water of the Bay.
Not everyone in the Bay region is impressed with agriculture’s efforts so far, including EPA and environmental groups such as the Chesapeake Bay Foundation. In 2010 the agency drew up the Chesapeake Bay Clean Water Blueprint that requires that the six Bay states and the District of Columbia follow specific plans to meet EPA-enforced nitrogen, phosphorus, and sediment pollution limits. The American Farm Bureau Federation (AFBF) says the blueprint creates serious concerns about EPA’s role in land use and specific water quality goal setting — and is a huge overstep of the Clean Water Act.
In 2016 the AFBF will be taking the fight to the Supreme Court, after losing two lower court decisions in the past
five years.
Also in the courts is the Obama Administration’s new rule, released in June, that attempts to define the “waters of the United States” (WOTUS). EPA states the rule is intended to clarify its jurisdiction over the nation’s waterways — a subject that’s been the subject of litigation for the past 30 years, with the U.S. Supreme court weighing in.
In October, the Sixth U.S. Circuit Court of Appeals (North Dakota) blocked nationwide implementation of the rule until litigation over its legality is worked out. Thirteen states had filed suit with the court on August 27, one day before the agencies began implementing it in the remaining 37 states.
The decision allows time for the legality of the rule to be adjudicated before growers, businesses, and states that are affected.
Chip Bowling, president of the National Corn Growers Association, noted, “The Army Corps of Engineers has stated this rule is not based on science or law and is unlikely to withstand a legal challenge. When even the federal agencies responsible for this rule can’t agree on its constitutionality, it’s time for EPA to withdraw the rule and start this process over.”
EPA had, in fact, waged an election-style campaign on social media to convince the public that the WOTUS rule is about clean water.
Efforts in the Senate to stop the rule have been unsuccessful and at press time some commentators projected the issue could end up as a rider on a late-session spending bill or in a years-long court fight.
In gauging the public’s reaction to recent water issues, OABA’s Henney summarized what many in the industry are experiencing. “I’m hearing different things,” he says. “Many citizens understand that agriculture is working to address our share of the problem, but folks are impatient. Others don’t understand and are asking for unrealistic concessions from farmers.” The coming year promises to be busy for ag advocates at both local and national levels.
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