Family Farmers Are Highly Regulated
The most common accusation of Whatsupstream sponsors is also one of the most outrageous: that farms are unregulated. As you will see here, farms are among the most regulated of any industry or type of business in the nation. Federal, state and local regulations all affect farmers influencing or controlling just about every aspect of how they farm. We will focus here on environmental regulations, but there are many others including food safety, labor laws and many others.
Federal environmental regulations are enforced by the US Environmental Protection Agency (EPA). The EPA’s website lists all the federal laws under their enforcement affecting farmers and the environment at this weblink: https://www.epa.gov/agriculture/agriculture-laws-and-regulations-apply-your-agricultural-operation-statute#CWA-SDWA
There are thousands of pages of detailed regulations, but all fall under these specific laws:
- Clean Water Act (CWA)/Safe Drinking Water Act (SDWA)
- Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA)
- Resource Conservation & Recovery Act (RCRA)
- Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA/Superfund)Clean Air Act (CAA)
- Emergency Planning & Community Right to Know Act (EPCRA)
Clean Water Act:
National Pollutant Discharge Elimination System–this applies to animal operations that have proven discharge to water or are larger Concentrated Animal Feeding Operations (CAFO) that apply manure to land. Animal feeding operations not required to obtain a NPDES permit may be regulated by state programs. This regulation also requires a permit for application of pesticides and regulates “applications of (1) biological pesticides and (2) chemical pesticides that leave a residue, in which applications are made directly to waters of the United States, or where a portion of the pesticide will unavoidably be deposited to waters of the United States.”
Specific regulations also apply to stormwater discharges, forestry operations and aquaculture.
Clean Water Rule:
Numerous specific regulations that affect farming including: dredging or fill, injection wells, small drinking water systems (farm wells for human use), oil pollution prevention, spill prevention (requires Spill Prevention Plan for farms that store more than 2500 gallons of oil including animal or vegetable oil) or a Facility Response Plan for larger oil storage.
Clean Air Act (CAA)
Regulations that may affect farmers include particulate matter requirements, NOX and VOC rules for farms located in non-attainment areas. Farms may be required to have a permit if “fugitive emissions” exceed specified level and farm vehicles must comply with National Emission Standards as well as Mobile Source Program rules. Additional rules apply to chemicals that may be used on farms including the requirement to provide a Risk Management Plan if the farm contains more than a threshold quantity of specified chemicals or toxic substances. Farms with livestock that generate more than 25,000 metric tons of CO2e are required to report under the Greenhouse Gas (GHG) reporting rules.
Federal Insecticide, Fungicide and Rodenticide Act (FIFRA)
Regulations applying to any and all farmers using pesticides, requirements for protective clothing for workers, required training and certification for those applying ‘cides. Regulations relating to proper storage and disposal and requirements to follow county bulletins related to protection of endangered species.
Resource Conservation and Recovery Act
Regulations requiring proper disposal of hazardous waste materials, requirements for underground storage tanks including oil and gasoline tanks, heating oil tanks and septic tanks. Used oil storage must meet specific storage and transport requirements.
Comprehensive Environmental Response Compensation and Liability Act (CERCLA)
Requires reporting of releases of hazardous substances to the National Response Center and specific rules relating to hiring of contractors for response and clean up actions.
Emergency Planning and Community Right to Know Act (EPCRA)
Farms handling more than a specific quantity of hazardous substances must report an inventory to state and local emergency planning entities. An emergency release of hazardous substances requires an immediate report to state and local officials.
US Fish and Wildlife Service and National Marine Fisheries Service enforce the Endangered Species Act.
US Food and Drug Administration enforces the Food Safety Modernization Act:
The FDA Food Safety Modernization Act (FSMA) is the most sweeping reform of U.S. food safety laws in more than 70 years. It aims to assure the safety of food throughout the supply chain through the introduction of new requirements to food manufacturers, processors, transporters and distributors.
The FSMA legislation consists of seven new regulations. The key regulation around food transportation is the Sanitary Transportation of Human and Animal Food (sometimes referred to as SFTA – the Sanitary Food Transport Act), which defines requirements around…
For refrigerated products, every storage compartment must be pre-cooled and have a temperature monitoring device. Shippers must also define temperature conditions must be met throughout transportation.
Vehicles must be maintained in a sanitary condition, and are subject to inspection. Loading/unloading stations must be provided with handwashing facilities.
Temperature certification/data exchange
A log of temperature conditions for the duration of the transportation must be provided to the receiver/shipper by the carrier upon request.
Carriers must provide basic sanitary transportation practice training to their personnel.
All records must be maintained for a period of 12 months.
Labor Laws (note: Federal only–state laws also apply)
Fair Labor Standards Act of 1938
Occupational Safety and Health Act of 1970
Migrant and Seasonal Agricultural Worker Protection Act of 1983
Immigration Reform and Control Act of 1986
Family and Medical Leave Act of 1993
Personal Responsibility and Work Opportunity Reconciliation Act of 1996
Equal Employment Act
Washington State and Local Laws and Regulations
The Dairy Nutrient Management Act is just one of many regulations affecting farmers. It has proven to be effective in significantly reducing dairy farm contributions to water quality issues.
There are numerous state and local regulations that affect farming. An incomplete listing of some of these laws can be found at: http://www.farmlandinfo.org/law?field_law_category_tid=289&field_topic_tid=All&field_state_tid=344
We will mention the most significant relating the false accusation of the Whatsupstream campaign and the Western Environmental Law Center.
Dairy Nutrient Management Act
This important act was passed in 1998 in part because of the closure of the Lummi Nation Portage Bay shellfish beds. In 1997 Washington state officials identified dairy farms in the area as being the likely primary contributors of fecal coliform contamination that led to the closures. This Act required dairy farms to submit nutrient management plans, or “farm plans” that would specify how manure was to be handled. Runoff into ditches, streams and rivers from manure application to fields is a major concern so this Act required farmers to apply manure at the right time, in the right amounts, under the right weather conditions.
Initially enforced by the Department of Ecology, dairy inspectors were cut from the DOE budget in 2002 and the dairy industry led the effort to ensure continued funding of inspectors and enforcement through the Department of Agriculture. Inspections and enforcement have proven to be effective with significant — even dramatic — improvement in water quality in the Nooksack river basin related to the Portage Bay shellfish beds. The Lummi Nation atlas of 2008 noted the improvements related to the enforcement of Ecology and Agriculture Departments. Water quality reports by the Department of Ecology provide further strong support for this improvement. Water quality in this basin declined in mid-2014 and 2015 requiring a repeat of the shellfish bed shutdown, but dairy farms are no longer considered the primary issue in this water quality problem (See “Solving the Water Quality Puzzle”).
For complete information about the Dairy Nutrient Management Act:
Growth Management Act (GMA)
The GMA was passed in 1990 and is a critical component of land use and planning. The Municipal Research and Services Center website states:
The GMA was enacted in response to rapid population growth and concerns with suburban sprawl, environmental protection, quality of life, and related issues. The GMA has been amended several times, and is codified in many chapters but primarily in Chapter 36.70A RCW.
The introduction to this far-reaching law states:
The legislature finds that uncoordinated and unplanned growth, together with a lack of common goals expressing the public’s interest in the conservation and the wise use of our lands, pose a threat to the environment, sustainable economic development, and the health, safety, and high quality of life enjoyed by residents of this state. It is in the public interest that citizens, communities, local governments, and the private sector cooperate and coordinate with one another in comprehensive land use planning. Further, the legislature finds that it is in the public interest that economic development programs be shared with communities experiencing insufficient economic growth.
Comprehensive Plans and Critical Areas Ordinances (CAO)
The GMA required local governments to develop Comprehensive Plans that detail how they will meet the requirements of the GMA. These plans must be updated every eight years and must use Best Available Science to determine the appropriate requirements.
The MRCS website states:
All Washington cities and counties are required to adopt critical areas (environmentally sensitive areas) regulations (RCW 36.70A.060). Critical areas include wetlands, aquifer recharge areas, fish and wildlife habitat conservation areas, frequently flooded areas, and geologically hazardous areas. In 1995 the Growth Management Act (GMA), RCW 36.70A, was amended to require counties and cities to include the best available science in developing policies and development regulations to protect the functions and values of critical areas. All counties and cities in the state are required to review, evaluate, and, if necessary, revise their critical areas ordinances according to a schedule established by the state Legislature and approved by the Governor.
Over time, the importance of flexibility in applying best available science in planning and implementation has been well established. Same source:
Because setbacks and other protective measures can significantly restrict new land uses and activities on constrained lands, critical areas ordinances implementing the new requirements have been controversial in some communities. Wide stream setbacks and buffer requirements, often bolstered by best available science documents, have been particularly difficult to accommodate on small urban lots or for farming operations that require access to water for cattle and irrigation. The following information and examples illustrate approaches for using incentives or adding flexibility to regulations to ease difficulties for property owners, while continuing to protect important resources.
Voluntary Stewardship Program (VSP)
This important, collaborative program is administered by the Washington State Conservation Commission, which states on its website:
Washington State’s Voluntary Stewardship Program (VSP) provides an alternative approach for counties to address Growth Management requirements for agricultural activities. This negotiated program uses a watershed-based, collaborative stewardship planning process, relying on incentive-based practices that protect critical areas, promote viable agriculture, and encourage cooperation among diverse stakeholders.
This program was developed in collaboration with all stakeholders in 2007 after years of controversy and lawsuits over implementation of the Growth Management Act. It provides plans, guidelines and incentives for the protection of critical and sensitive areas including wetlands, aquifer recharge areas and fish and wildlife habitat. It takes into consideration the competing demands of various stakeholders including farmers, tribal interests, community growth, and conservationists.
Counties within Washington state had the option in 2012 of adopting this as the basis for protection of these critical areas, or plan and implement their own requirements under GMA. 28 of 39 counties opted in to the VSP including Skagit County. Whatcom County opted to manage the critical areas without using VSP.
The following pesticide laws apply in Washington, in addition a number of local laws and regulations may also apply:
Washington Pesticide Control Act
Washington Pesticide Application Act
General Pesticide Rules
Worker Protection Standard
The Washington State Department of Agriculture enforces state pesticide laws:
The Pesticide Management Division of the Washington State Department of Agriculture (WSDA) is responsible for ensuring that pesticides are used safely and legally. To accomplish this responsibility, WSDA performs a number of activities including registering pesticides, licensing pesticide applicators, dealers and consultants, investigating complaints of possible misuse, maintaining a registry of pesticide sensitive individuals and administering a waste pesticide collection program. These duties are performed under the authority of the Washington Pesticide Control Act (15.58 RCW), the Washington Pesticide Application Act (17.21 RCW), the General Pesticide Rules (WAC 16-228), the Worker Protection Standard (WAC 16-233) and a number of pesticide and/or county specific regulations.
Summary of Farm Water Quality Protection in Washington
State by Dept of Ecology, 2008 (Yakima)
In Washington State, the primary agency responsible for the protection of both ground and surface water quality is Ecology. Ecology’s Water Quality Program operates according to several laws and rules. Primarily, the program operates under Chapter 90.48 RCW, and also called the Water Pollution Control Act. Under this law, Ecology is given authority to implement measures to protect both ground and surface waters from pollutants. Ecology used the authority granted in the statute to develop regulations pertaining to the protection of ground and surface water quality, permitting of discharging activities, and financing of water quality protection activities. The protection of ground water quality is addressed in Chapter 173-200 WAC, Water quality standards for ground waters of the state of Washington. This regulation lists water quality criteria (numerical limits for specific contaminants) that apply to all groundwaters of the state. These criteria are used when evaluating the performance of permitted discharge activities (such as sprayfields and holding ponds), BMP implementation, or when conducting clean-up activities at historical or current waste sites.
State and Federal Discharge Permits
Ecology issues State Waste Discharge Permits when land is used for disposal of wastewater. These may be issued to a specific entity with conditions designed to protect water quality, or a group of entities with shared discharge characteristics and set of conditions. These are termed as “general permits”. NPDES (National Pollution Discharge Elimination System) permits are issued by Ecology under authorities granted to it by the EPA. Generally, these types of permits are issued to industries and municipalities for treated discharges into surface waters such as Sulphur Creek Wasteway or the Yakima River. Permits issued by Ecology describe penalty provisions which may be put into effect if discharge limitations (or other conditions specified in the permit) are not met. Repeated violations of the permit can result in closure of the discharging activity and fines for potential clean-up activities.
Dairies and Animal Feedlots
The Dairy Nutrient Management Act (DNMA), Chapter 90.64 RCW, was enacted in 1998 and applies to all cow dairies, regardless of size, that are licensed by the state to sell milk. Enforcement under the DNMA is the responsibility of WSDA. Enforcement tools are from the state Water Pollution Control Act, Chapter 90.48 RCW.
The DNMA requires that all dairy farms develop and implement a nutrient management plan (plan) to prevent the discharge of livestock nutrients to surface and ground waters of the state. The plans are required to be maintained on the farm for review by inspectors. The DNMA requires that all dairies be inspected for implementation of their nutrient management plans and to ensure protection of waters of the state. Plans are required to be developed using the technical standards developed by the federal Natural Lower Yakima Valley Groundwater Quality Page 19 Resource Conservation Service (NRCS). Local Conservation Districts typically provide the dairies with technical assistance and planning services and are required to approve and certify all plans.
The required elements of the plans address the collection, storage, transfer and application of manure, waste feed and litter, and any potentially contaminated runoff at the site. The primary goals of the plans are to protect water quality from dairy nutrient discharges. Excess nutrients must be exported off site. Plans focus on management of nitrogen, and phosphorus as well as preventing bacteria and other pollutants, such as sediment, from reaching surface or ground water.
WSDA inspects all dairies in the Lower Yakima Valley at least once every 22 months. The inspector evaluates the facility and site conditions, nutrient management practices and record keeping for any risk of nutrients or bacteria impacting surface or ground water quality. Each fall, a selected group of dairies are assessed for conditions of their lagoons and lagoon capacity going into the winter period. In addition, WSDA investigates water quality related complaints about dairies. In all cases, where violations are discovered or a potential to pollute is documented, compliance actions are taken and follow up inspections are made to ensure the problem is addressed.
Concentrated Animal Feeding Operations
Federal rules, Title 40 Part 122, under the federal Clean Water Act define dairies with 750 or more animals and feedlots with 1000 or more animals as Large Concentrated Animal Feeding Operations (CAFO). Large CAFOs are further defined as point sources of water pollution and subject to the National Pollutant Discharge Elimination System (NPDES) permit. However, unlike other point sources that have continuous or regular discharges to surface waters, CAFOs are not considered to automatically have a surface water discharge. Consequently, they may be required to obtain an NPDES CAFO permit only if they have a discharge or potential to discharge.
In Washington, the NPDES permit program, including the CAFO permit, is the responsibility of Ecology. Ecology develops and administers the CAFO permit, decides when a facility is required to apply for a permit, approves the nutrient management plan that is required under the permit and is responsible for enforcing the permit. Ecology issued a CAFO General permit in 2006 that currently covers 5 of the 69 dairies in Yakima County. Coverage is based on previous documentation of a discharge. None of the 11 small or medium sized dairies in the county are considered CAFOs and are not covered by the CAFO permit. There is one permitted feedlot currently in the county.
In 2003, state inspection resources were reduced and responsibility for the DNMA moved from Ecology to WSDA. The two agencies signed a Memorandum of Understanding (MOU) to guide coordination and cooperation between the two agencies for dairies, CAFOs and other Animal Feeding Operations. Because Ecology lost some inspection and technical resources dedicated to livestock work, a key element of the MOU was for WSDA inspectors to provide field inspections and technical assistance to Ecology for CAFO and other AFO related water quality activities. The two agencies continue to coordinate on livestock and manure related complaints and in implementing the CAFO permit. An updated MOU was signed in 2009.
(Local regulations also described)
EPA has broad authority, under SDWA 1431, to address contamination in an underground source of drinking water where EPA determines that it may present an imminent and substantial endangerment to the health of persons. Where drinking water in private wells contains nitrate above the MCL is sufficient to support such a determination by EPA. This authority allows EPA to take action, including collecting samples to investigate the sources of the contamination. In addition, where appropriate, EPA may issue orders to require provision of alternative water supplies by persons who caused or contributed to such conditions.