Agricultural water pollution on the line

The Bush Administration has been trying since 2005 to change Clean Water Act rules so that agricultural interests can dump polluted water into public lakes and streams without obtaining a permit. Each step of the way, Florida environmentalists represented by Earthjustice lawyers have filed lawsuits to block the Environmental Protection Administration (EPA) from implementing the new rules. On June 9th, the Bush EPA tried once again and again environmentalists are going to court to block the proposed rules. Click here to read an article about the legal challenge.

The rule change proposal is the Administration’s response to three lawsuits – one in South Florida, one in Upstate New York and one in the upper Klamath River Basin. Each lawsuit seeks court action to require those discharging agricultural waste water into a public waterbody through a “discrete conveyance” (i.e. a pipe or a pump) to obtain a pollution discharge permit. Prior to these cases it was assumed that all agricultural discharges were “non point sources” and therefore exempted from the Clean Water Act’s discharge permit requirements. The Florida case went all the way to the Supreme Court which opened the door to permit requirements if agricultural wastewater is moved from one waterbody to another through a discrete conveyance. The Bush Administration countered with the rule change.

The implications of extending Clean Water Act permit requirements to agricultural discharges are huge in the West where water has been wheeled freely using subsidized power and giant pumps. The pumps in the photo below are owned by the U.S. Bureau of Reclamation and operated by the Tulelake Irrigation District in far Northeast California. They pump agricultural wastewater high in phosphorus, nitrogen and pesticide residues into wetlands on the Tule Lake National Wildlife Refuge. If the Bush Administration’s attempt to exempt this type of discharge from Clean Water Act permit requirements fails, these pumps and many others on the Klamath Project and throughout the West will need permits and the water the pumps discharge will need to comply with requirements imposed by state or regional water quality authorities.

In California and Oregon farms and ranches which discharge wastewater have, for the most part, avoided direct regulation by water quality officials. Instead state departments of agriculture and resource conservation districts with farmer and rancher dominated boards have been in charge of developing farm and ranch water quality plans that rely on best management practices to protect water quality. The voluntary compliance approach has not significantly reduced agricultural water pollution; good actors in agriculture are already using the BMPs and bad actors, who stubbornly resist change, scoff at voluntary plans.

In similar fashion, the TMDL process[1] - which is supposed to clean-up rivers and streams where non-point pollution is significant - has proven to be a paper tiger – creating plans that can not or will not be enforced.

Regulation of pollution from factory-style livestock operations and dairies is big news in the West. But considering the implications for western agriculture, westerners appear to be dumbfoundingly unaware of the battle concerning more traditional agricultural operations playing out in Florida courtrooms. You can bet, however, that water quality lawyers and activists are watching closely. The implications of this epic battle for the environment are huge. Over 30 years ago the Clean Water Act promised streams, rivers, bays and near shores that are “swimmable and fishable.” Where the promise has not been realized a major reason is failure to adequately limit agricultural pollution.

This is likely the Bush Administration’s last chance to exempt agricultural discharges from Clean Water Act permit requirements. If this attempt fails, the system of regulation which has dramatically reduces industrial pollution may finally be applied to discrete discharges of polluted water from farms and ranches - at least where those discharges are transfered into a different water body from the one in which they originated.