Reexamining the Ag Exemption

The discrepancy in how stormwater is regulated–strictly for urban areas and construction sites, less so or not at all for agricultural lands–has been a sore spot for stormwater managers for years, but one we rarely talk about because it seems impossible to change. At Stormwater magazine, we’d like to open that discussion.

Many urban stormwater managers feel their programs’ incremental and costly efforts are undermined by unregulated ag discharge. An often-cited example is the dead zones in the Gulf of Mexico and elsewhere; the one in the Gulf this year is about the size of Connecticut, and that’s an improvement from previous years. Researchers have shown that the source of most of the nutrients causing the dead zones is agricultural runoff. Compared to that, a city’s illicit discharge detection and elimination program, no matter how successful, can seem a paltry undertaking.

StormCon this past August in Portland included a program update and Q&A session with representatives from EPA. One question from the audience–it comes up almost every year in some form–was “Why isn’t runoff from agricultural land regulated in the same way urban stormwater runoff is?” The EPA folks, understandably, declined to give a detailed answer, though one of them did say it would take an act of Congress for things to change.

And this is true: Although National Pollutant Discharge Elimination System (NPDES) permits are required for a few agricultural endeavors, such as concentrated animal feeding operations, most agriculture is exempt through longstanding precedent. In a recent rule to clarify what the Clean Water Act covers, EPA and the US Army Corps of Engineers were very careful to note that the proposed rule preserves current agricultural exemptions.

“Voluntary and regulatory programs serve complementary roles in providing agricultural producers with the assistance and certainty they need to achieve individual business and personal goals, and in ensuring protection of water quality and public health,” states EPA on its website. We’ve mentioned a number of these voluntary programs in Stormwater and in Erosion Control, such as the Conservation Innovation Grants available through the Department of Agriculture’s Natural Resources Conservation Service–available for projects that promote nutrient management and soil health, among other things–as well as the NRCS’s Conservation Partnership Initiative and the Conservation of Private Grazing Land Program.

The problem is, federal funding to support these voluntary programs has been shrinking. And although some farmers, ranchers, and landowners willingly participate in such programs–improving their irrigation practices, using different tillage techniques, or limiting the amount of fertilizer applied, for example–ensuring that these efforts are truly effective takes time, effort, and money. The government has set up water-quality monitoring stations in some states to demonstrate which practices are most effective, and some of the techniques can actually save money–getting more benefit from well-timed applications of smaller amounts of fertilizer, say. But as long as participation is voluntary, many of these programs just won’t seem worth it to many large agricultural producers.

There is some precedent for reversing these types of exemptions. Oil and gas production sites were briefly exempt from Clean Water Act regulations through a provision in the Energy Policy Act of 2005, but lawsuits by environmental groups brought that to an end, and such sites are now essentially covered under the same rules that govern discharges from any other construction site. The agricultural exemption is of longer standing, however, and arguably more steeped in tradition.

We plan to explore the issue of regulation for ag runoff in upcoming issues of Stormwater. In the meantime, let us know what you think. How effective are voluntary conservation programs? Is it a good idea–or even feasible–to regulate runoff from ag lands in the same way we do urban runoff? Leave a comment below, or e-mail [email protected].