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What is Ag Stormwater & Is It Regulated?

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epa-150x150Agriculture’s stormwater runoff is in the news almost every day. Des Moines, Iowa, has filed a major law suit against drainage districts (farmers) and counties alleging that runoff water from farmers’ fields discharged through farm tiles into local rivers must be regulated under the Clean Water Act (CWA). EPA has recently won a major case against the American Farm Bureau (AFBF) and claims it now has the authority to regulate agriculture stormwater runoff using the Clean Water Act’s authority to regulate Total Maximum Daily Loads (TMDLs) of pollutants which run off farmers’ fields and into waters of the state or the United States. This is a problem for tillage agriculture!
Agriculture’s stormwater runoff from fields is viewed as significant and pernicious cause of water pollution in the nation’s waters. Many opponents of agriculture claim state efforts to improve water quality impacted by agriculture have met with little or no success. EPA and its supporters constantly argue that present day agricultural practices cause serious adverse impacts to surface water and ground water.
Des Moines Water Works (DMWW) is claiming that the groundwater coming from farm fields carries high levels of nitrates. DMWW claims farmers’ agricultural stormwater runoff is harming its citizens’ drinking water.
Many of you may ask what is agricultural stormwater runoff and is it regulated?
The federal statute entitled “Clean Water Act” has addressed agricultural stormwater runoff since 1972. One would think defining agricultural stormwater runoff is pretty simple. I can assure you courts have wrestled with this issue for decades and in nearly every case have come to the correct conclusion declaring in every case there is an agriculture stormwater exemption and that farmers as of this date do not need a CWA federal permit to discharge water running off of their fields and from around their concentrated animal facilities.
Federal courts have written extensively on what constitutes agricultural stormwater runoff; what is exempted from federal permitting and what is not. The granddaddy of agricultural runoff cases occurred in 1994 involving a dairy farm in New York State in Concerned Area Residents for the Environment v. Southview Farm. This case involved the farmer applying dairy manure on a field shortly before a substantial rain. The Court ruled “We agree that agricultural runoff has always been considered nonpoint-source pollutants exempt from the Act.” In the Southview Farm case, some manure ran into surface waters while it was raining and some ran in while it was not raining. The Court looked at the common sense meaning of agricultural stormwater. The Court said quite simply that discharges of agricultural stormwater runoff caused by “precipitation” would be exempt from CWA permitting. So the Court clearly ruled that runoff from a farmer’s field “caused by” rainfall would be exempt from the permitting requirements of the CWA.
Another key decision in 2005 also came from the 2nd U.S. Circuit Court of Appeals in New York. That case also protected agriculture stormwater runoff from being regulated by EPA. It said “There is an impropriety of imposing liability for agriculture-related discharges triggered not by negligence or malfeasance, but by the weather – even when those discharges came from what would otherwise be point sources;” (The attorneys for DMWW might want to read this case carefully.)
Another decision in the 11th Circuit Court of Appeals against Closter Farms ruled that “…agricultural stormwater discharge exemption applies to any discharges [that] were the result of precipitation.” It is clear federal courts have supported agriculture’s stormwater runoff exemption.
A second issue has arisen regarding stormwater runoff from around the buildings of concentrated animal feeding operations (CAFOs). Many have argued runoff from the barnyard area surrounding CAFO buildings is from a point source and must be regulated by EPA or a state. EPA claims that it can regulate runoff from the production area and that includes the animal confinement area, manure storage area, raw materials’ storage area and waste containment areas. It is also clear that barnyard areas which are landscaped and surround the buildings constitute none of these activities, so the farmyard where stormwater runs off is also exempted under the agricultural stormwater runoff exemption.
EPA, in 2003, agreed that its regulations requiring a permit only regulated activities within the farm production area.
The issue appears simple but as you can see, it is not.
(This article first ran in Farm Futures on May 18, 2016)
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