A lawsuit by an environmental organization, now being considered by the U.S. Supreme Court, could have far-reaching ramifications for agriculture and timber operations by requiring permits for runoff water under the Clean Water Act.
GARY BAISE, center, Washington attorney, visits with Randy Knight, right, Mississippi Farm Bureau Federation president, and John Kilgore, Mississippi Farm Bureau beef commodity chairman, at the organization’s annual commodity conference.
A case pending before the U.S. Supreme Court “is indicative of another attempt by environmentalists to run you out of business,” Washington, D.C., attorney Gary Baise told farmers attending the Mississippi Farm Bureau Federation’s annual commodity conference.
Baise, an Illinois farmer who is a principal with the Olson Frank Weeda Terman Matz Law Firm and has 30 years in government and private practice, says the case brought by the Northwest Environmental Defense Center originated in Oregon and had it been successful “would have shut down most logging in the Northwest.”
And he says, it has potentially far-reaching ramifications not only for timber interests in Mississippi and elsewhere, but also for animal and row crop agriculture.
He represents agriculture clients that producers and ag organizations, in cases involving the Clean Water Act, the Clean Air Act, and other regulations.
The issue in the Oregon case involved a lawsuit by an environmental organization claiming that rain runoff from logging roads constitutes a threat to fish, vegetation, and other wildlife that could be miles downstream from the original source, and asking that runoff from logging operations be subject to the same Clean Water Act rules as industrial storm water and that loggers be required to obtain discharge permits for culverts, ditches, and other water-channeling measures.
A federal appeals court upheld the environmental group’s petition, but timber companies and state officials asked the high court to intervene.
Under CWA rules, Baise says, “If you have water that is channeled into a ditch next to your logging road and install culvert so you can cross that ditch, it becomes a point source under the Clean Water Act, meaning you have to have a permit. And it gets worse: EPA is now imputing and writing Best Management Practices on how you must run your operation. Those BMPs will then commented upon by the environmental and public interest groups.
“The permitting process alone would put you, and me, out of business. It could be applied to any of us in agriculture — any storm water runoff from your property would have to be permitted.”
For 35 years, the Clean Water Act has contained exemptions for water runoff from farms and timberland, Baise says. “The Agriculture Storm Water Runoff Exemption and the Silviculture Water Runoff Exemption say that, unlike sewage treatment plants and industrial operations, we don’t need to have to a Clean Water Act permit.
“But, this court case says, no, these should not be exempt. It was argued about five weeks ago in the Supreme Court. On the weekend before the case was to be argued, the EPA put out a new rule that was actually helpful to agriculture, saying they would have discretion as to whether or not to require storm water runoff permits under the CWA.The environmentalists have already said, however, that they’re going to sue the EPA over this fairly sensible decision.”
A decision by the court should be handed down in the next 30 to 45 day, Baise says.
“I think it will come down in favor of agriculture — but even so, the environmentalists are going to continue to come up with tactics to try and get control over your property. In many respects, this comes down to an issue of private property rights being litigated under the Clean Water Act. These groups aren’t going to give up on trying to shut down commercial agriculture and timber in this country.
“We’re going to be doing everything we can to try and protect the private property interests in this case.”
Baise, citing examples of the EPA levying jail terms and fines topping $1 million against agricultural and logging operations, quoted a Washington Post editorial that “The Environmental Protection Agency is earning a reputation for abuse,” and cited a top agency administrator who observed that “EPA’s policy for enforcement is: Hit them as hard as you can, make an example of them, and go after them.”
Starting in the Bush administration, Baise says, “The EPA has become an agency all to its own. It does not have sufficient adult oversight. I’m among a few who say that instead of a single administrator, it needs to be a commission, like the Federal Communications Commission or the Securities and Exchange Commission, so there would be more diversity in who is running things.”
In other areas of environmental concern, Baise notes, a lawsuit has been filed in New Orleans, with motions now under way, that could have a significant impact on states within the Mississippi River watershed by requiring control of nutrients coming off agricultural land into streams and rivers.
“They’re also going to try to get rules for emissions into the air, such as from anhydrous ammonia, which can convert to nitrous oxide (N20). California has already held hearings on ways to limit use of anhydrous — just another way to control agriculture by limiting our inputs.”
And he notes, the Department of the Interior has been petitioned to add more than 400 plants and animals to the endangered species list, “many of which are found on southern forest lands,” which could further hamper timber operations.
“We’re going to see a lot more” lawsuits by environmental/activist groups — “another trend that is not healthy for our freedoms, and a threat to agriculture in the future,” Baize says.
“The American Farm Bureau Federation is helping support agriculture’s interests in this issue and has taken the lead on your behalf.
“Farming today is increasingly risky, and more and more we’re having to worry about our neighbors. We know we have a great story in U.S. agriculture. These things are bothersome and nettlesome, but we’re going to have to contend with them, and we’re going to have to do a better job of educating our non-farm neighbors.
“American agriculture has a magnificent horizon, a great future — but we must work to protect it.”