Top ag regulatory issues to watch in 2016

WASHINGTON, Feb. 10, 2016 - As the Obama Administration nears the finish line after eight years, federal agencies are working to flesh out congressional intent in the 2014 farm bill, and proposing, finalizing and implementing a host of environmental, worker safety and other regulations that will affect the farm community. Based on interviews with trade groups and a review of regulatory agendas from various federal agencies, here are the top regulatory issues to watch in the coming months.

WOTUS, or Waters of the United States. The mother of all regulatory issues, WOTUS -- clarification: killing WOTUS -- is the top priority for many farm groups. The matter is currently before the Sixth Circuit Court of Appeals in Cincinnati, which has stayed implementation nationwide and will decide whether challenge to the rule should be litigated in the appeals court or district courts. The ag industry is worried that vast areas of farmland will be subject to regulation if the rule is allowed to stand, but EPA insists that normal farming activities will not be affected. Far from backing down, EPA and its co-regulator, the Army Corps of Engineers, said they “look forward to vigorously defending the merits of the Clean Water Rule, which the agencies continue to believe is fully consistent with the law and based on the best available peer-reviewed science.” Stay tuned for news from the court, as the litigation moves forward this year.

Clean Power Plan on hold. Farm groups have been closely watching the CPP, but in a 5-4 decision Tuesday, the Supreme Court ordered a halt to enforcement until legal challenges are resolved. The D.C. Circuit Court is slated to review the merits of the many lawsuits challenging the plan on June 2. The plan would impose carbon dioxide emissions limits for the first time on existing power plants. The plan also gives the states wide leeway on how to reduce CO2 emissions, and EPA has said “sustainably-derived agricultural and forest biomass feedstocks” are acceptable for use in state plans to reduce CO2. The American Farm Bureau Federation, however, says the plan is delving into sustainability without defining it. AFBF believes that farm-grown biomass such as switchgrass or corn cobs should be considered carbon-neutral since they sequester carbon when they’re grown. Andrew Walmsley, congressional relations director at AFBF, says the group is pushing to get EPA to consider emissions from such sources de minimis, or levels low enough that they don’t trigger regulation.

Ground-level ozone. EPA’s ozone rule, which lowered the acceptable amount in air to 70 parts per billion, also is on the agricultural radar. Farm Bureau’s Walmsley said the new limit will be difficult to meet. “Naturally occurring levels of ozone are close to that,” he said of the new standard. Soon EPA will have to start looking for how to reduce emissions in rural counties, and that means farms. One area of concern is prescribed burns, which farmers use to kill invasive species. Historically, the Clean Air Act’s “exceptional events” provision has been used to exempt prescribed burns, said Scott Yager, the National Cattlemen’s Beef Association environmental counsel. NCBA would like that practice to be retained.

Particulate matter.  NCBA also is worried about an EPA-proposed rule that would regulate ammonia as a precursor to fine particulate matter. Noting that ammonia is a natural byproduct of cows, Yager asked, “What can you do to stop cows from defecating or urinating? It just kind of happens.” The fertilizer industry also would be affected by the proposal. But so far, the plan is too murky, Yager said. EPA needs to acknowledge the uncertainties and offer a clear pathway to compliance, NCBA said in comments submitted to the agency. “We want to make sure that producers can continue doing what they’re doing,” Yager said.

Process Safety Management standard. Ag retailers and their reps in Washington are still working to get OSHA to conduct a full-fledged rulemaking in order to subject dealers to this standard, now scheduled to go into effect Oct. 1 after ag groups were able to get a delay included in the report accompanying the 2016 omnibus appropriations bill. Dealers who stock and sell anhydrous ammonia would either comply, to the tune of about $2,000 to $27,500 per facility – OSHA’s estimate followed by the Agricultural Retailers Association’s – or get out of the anhydrous ammonia business altogether, a major concern, given the popularity of that form of nitrogen fertilizer. ARA Senior Vice President Richard Gupton also notes that EPA is revising its Risk Management Plan rule, designed to prevent accidental releases of hazardous emissions.

Restricted-use pesticides: Applicator requirements. EPA will be working to finalize new requirements to protect the approximately 1 million applicators of restricted-use pesticides. State agencies submitted comments saying the agency underestimated implementation costs by a factor of 10. “We have some pretty big concerns about the economic analysis,” said Nathan Bowen, head of public policy at the National Association of State Departments of Agriculture. NASDA estimates that EPA would need to provide at least $500 million per year in each of the first 10 years the new rule was in effect for states to adequately meet the added regulatory burden. The economic analysis prepared for the agency “estimated the proposed rule will impact over 800,000 small farms and over 400,000 commercial applicators,” and a Small Business Advocacy Review panel convened by EPA found that “the rule will impose unnecessary and unjustified burdens on [small businesses] and that alternatives exist that would reduce the economic impact of the rule on small entities while still accomplishing the agency’s objectives.”

Pesticides: Worker Protection Standards. EPA issued a final rule in November designed to protect the nation’s 2 million farm workers, including annual training requirements and a minimum age threshold of 18 to handle pesticides. EPA estimated compliance costs between $65 million and $75 million per year. NASDA was unable to come up with an estimate of its own. However, in commenting on the proposal in 2014, the group said the costs for states implementing the requirements would be “significant, especially during the first several years of implementation.”

Pesticides: What’s next? The agrichemical industry is worried that EPA has changed the rules for how it deals with crop protection chemicals. At NASDA’s recent annual meeting, CropLife America’s Beau Greenwood pointed to the imposition of new label requirements without new risk assessments and the use of tolerance revocation to eliminate uses, instead of outright cancellation. “Public opinion shouldn’t be the basis of scientific public policy,” Greenwood said. CLA is very concerned about EPA’s “shift away from risk-benefit regulation.”

Food Safety Modernization Act. This law was signed in 2011, but the regulations are still trickling in. The latest development was publication in November of the final Produce Safety Rule, which requires that water used to grow produce or that might come in contact with it be tested for microbial contamination. A big difference between the proposed and the final rules is that FDA will allow growers to meet the standards if the E. coli level is above the maximum limit, so long as they can show that the bacteria have died off within a certain amount of time. FDA estimated the costs of the rule at $366 million per year and benefits – from prevention of more than 300,000 illnesses – at $925 million. Farms do not have to comply immediately. The smallest operations will have up to six years to meet the water requirements, for example. That’s just one of the new FSMA standards. “Final rules on sanitary transportation of human food and animal feed, and on mitigation strategies to protect food against intentional adulteration, are expected in March and May of 2016, respectively,” said the law firm Faegre Baker Daniels in a post on USDA’s regulatory priorities.

Manure and RCRA. Dairy operations could find themselves under the umbrella of the Resource Conservation and Recovery Act, designed to address solid and hazardous waste, if conservationists are successful in getting other courts to adopt a ruling from a federal judge in Washington state. About a year ago, U.S. District Judge Thomas O. Rice concluded that a dairy’s application of manure violated RCRA. “It really just opens the Pandora’s box,” NCBA’s Yager said. RCRA, he said, “has never been used before to compel change at farms.” The group that brought the lawsuit, he said, is now looking at other dairies in the state, and NCBA is monitoring developments in Kewaunee County, Wisconsin, and Tulare County, California, that could focus attention on manure management at dairy operations.

Unmanned aerial vehicles. Commonly called drones, UAVs could be a boon for precision agriculture, allowing farmers, for example, to monitor crop health so they can figure out which areas need inputs such as nitrogen, phosphorus or potassium, and how much. A recent report from Bank of America Merrill Lynch estimates that the market for ag robots is expected to grow to $16.3 billion in 2020, from $817 million in 2013. But “we need to make sure they’re safely integrated,” the NAAA’s Moore said. His group is supporting the use of technology that will make small drones detectable by ag aviators when they’re flying, as well as requirements that drones be painted in colors that make them readily distinguishable from their background. Moore also want to see the Federal Aviation Administration require certification for drone operators. FAA published a proposal about a year ago and is expected to issue a final rule around the middle of the year, Moore said.

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