Washington Insider-- Friday

By DTN's Washington Insider

Here’s a quick monitor of Washington farm and trade policy issues from DTN’s well-placed observer.

Supreme Court Indicates WOTUS Jurisdiction May Be Reviewable

Jurisdictional determinations relative to the Clean Water Act (CWA) made by the Army Corp of Engineers might be judicially reviewable, members of the Supreme Court seemed to indicate during March 30 oral arguments on a legal challenge to the determinations.

The issue is one of several which have been raised about various parts of the Environmental Protection Agency’s (EPA) Waters of the U.S. (WOTUS) rule. The jurisdictional challenge was elevated to the Supreme Court by the Corps request, following contradictory findings at the circuit court level.

The case before the court was originally brought by a Minnesota peat farmer. The farmer was issued a jurisdictional determination by the Corps, which found that the property contained wetlands which were waters of the U.S. and as such, are protected by the CWA.

Jurisdictional determinations by the Corps do not constitute final agency action because they don’t directly change a landowner’s legal rights or obligations, the government argued.

Justices challenged the government’s position. “The person who is subject to it has to take certain steps because of the law,” and “those [steps] sound like important legal consequences that flow from an order that, in respect to the agency, is final, for it has nothing left to do about that interpretation,” Justice Steven Breyer noted.

Arguing that the Corps’ determinations were in fact binding and final, Justice Ruth Bader Ginsburg said “it’s a deliberate attempt [by the Corps] to make this determination formal and binding on the agency.” She continued that “this is the agency’s position. It’s a final adjudication of [the Corps’] position on the jurisdictional question.”

How the government would respond to an adverse ruling by the Court was raised by Justice Sonia Sotomayor, who asked, “Assuming we disagree with you that that should be appealable, what’s the narrowest way to write this that the government would like?” To which Stewart responded that “If the court ruled against us on the ground that it understood the EPA and the Corps to have entered into a binding agreement… [and] the agencies wanted to fix it, they easily could, simply by issuing a new Memorandum of Agreement clarifying their view of the jurisdictional determination’s effect.”

Responding to the government’s answer regarding an adverse ruling, Justice Ginsburg asserted that if the EPA and Corps changed their policy to sidestep the issue, the plaintiff would be exposed to the same jurisdictional issues by way of the underlying statute. The plaintiffs’ lawyer, M. Reed Hopper, responded by noting that his client was only able to challenge the agency practice as it stands today.

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New Zealand’s Leader Warns Congress Not to Reject TPP

Alternatives to the Trans-Pacific Partnership (TPP) trade deal which could include China and other growing Asian economies – but not the U.S. – could become more attractive to other TPP nations should the U.S. Congress reject the deal, New Zealand Prime Minister John Key said in a speech to the U.S. Chamber of Commerce.

The U.S. stands to gain from the TPP in Asian markets, Key noted. “The real issue here is can U.S. corporations get better access to the Asian market? The answer under TPP is yes,” Key said.

Key warned that if Congress does not approve the TPP, member nations will seek trade agreements with other countries, including China, which provides favorable tariffs and trade policies for export businesses. “These nations will not stand still,” he said.

Potential growth in markets for U.S. companies would be more tied to TPP providing an attractive framework that might draw in China, South Korea and other big economies in Asia. China is interested in the TPP because leaders are trying to transform its economy from an industrial manufacturing model to a service-based one, Key said. Basically, the Asian story has been a Chinese story but it might increasingly become an Indian story,” Key said.

While the U.S. is looking at ratification of the TPP, it is also looking ahead to the potential for other nations to join the pact. A prime candidate to join TPP in the future is Taiwan, but existing trade issues with the U.S. need to be resolved in order to strengthen a bid by Taiwan to join. “Pork is certainly one of the important issues in that dialogue,” said Deputy Assistant Secretary of State for the Bureau of Economic and Business Affairs Kevin Tong, in remarks to a media roundtable in Taipei.

A primary sticking point for U.S. pork imports to Taiwan is the latter’s insistence that all imported U.S. pork be certified as free from the growth promoter ractopamine. A March 29 meeting between Tong and Taiwan’s President-Elect Tsai Ing-wen did not include discussion of the pork issue.

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Washington Insider: Dealing with Pollution Problems in Lake Erie

The ag industry is getting a modest amount of bad press for its contribution of phosphorus runoff associated with toxic algae blooms in Lake Erie. As a result, a number of the management practices being offered to deal with the algae include production shifts for considerable amounts of farmland—equal to several thousand acres of land, according to a recent report by the University of Michigan Water Center in February.

Excessive levels of phosphorous are the leading cause of increasingly massive algae blooms, the report noted. In 2014, the blooms left more than 400,000 people in Toledo, Ohio, and southeastern Michigan without tap water for two days, and last year’s bloom was the largest on record. Phosphorus also causes a “dead zone” in Lake Erie’s central basin with so little oxygen that fish cannot survive, the report said.

Using computer modeling, the Water Center’s scientists tested different combinations of best-management practices, including some already in use, such as planting vegetation buffers between cultivated fields and waterways. Others include applying phosphorus-based fertilizers beneath the land’s surface instead of on top, where it’s more likely to wash away, and planting cover crops such as winter wheat.

Ohio and Michigan rely largely on voluntary compliance, but too few farmers are participating to control the problem, the report found. For most of the scenarios tested, it will not be possible to achieve the new target nutrient loads without very significant, large-scale changes in agricultural practices, according to Don Scavia, a University of Michigan ecologist who led the study.

Policy alternatives described as “most promising” by Jay Martin of Ohio State University, the report’s co-author, included widespread use of conservation practices and conversion of some croplands to switchgrass or other grasses. One such scenario envisioned doing so on 1.5 million acres, with nearly 30,000 acres changing from crop production to vegetation buffer strips and other conservation methods being used on the remaining land.

The report is being criticized by ag interests in the region on the grounds that the changes being considered could drive some farms out of business, Joe Cornely of the Ohio Farm Bureau Federation noted. “Yes, agriculture’s got some things we need to do,” Cornely said. “But to give the idea that a single sector of our economy or a single geography is the only way to attack this ... runs the risk of raising unrealistic expectations among the public.”

“This study is a strong affirmation that we can once again restore the health of Lake Erie, but it cannot be done with half-measures and a piecemeal approach,” said Jack Schmitt, deputy director of the Michigan League of Conservation Voters.

In the meantime, in late March, USDA announced that the USDA’s Natural Resources Conservation Service is hard at work in the region and will invest $41 million in a three-year initiative to support the work of farmers in Ohio, Michigan and Indiana to improve water quality.

The initiative will expand conservation and financial assistance for producers working to improve the quality of the lake water. The new funds are in addition to the $36 million the Agency has already planned to make available in the basin through the 2014 Farm Bill, for a combined three-year investment of $77 million to improve water quality and support sustainable production in the Basin.

Since 2009, USDA has invested in more than 2,000 conservation contracts now cover more than 580,000 acres. The agency says that their data show that voluntary conservation is making significant headway in reducing nutrient and sediment loss from farms.

Throughout the basin, “comprehensive field-scale conservation systems are needed” to accommodate different needs, NRCS Chief Weller told the press. “While voluntary conservation is making a difference in the basin, our data indicate that there are still gains that can be made through an emphasis on practices like precision agriculture.”

So, there are at least a couple of things going on here. The State reports indicate severe problems with nutrient run-off in the Maumee valley that are contributing to water problems in Lake Erie and that local agencies are actively considering strong efforts to correct a number of these.

At the same time, USDA is investing enormous amounts of public funds into conservation efforts aimed to reduce farm run-off and pollution in the Lake. However, it less clear that these efforts are being effectively coordinated and can expect to resolve the issues.

Clearly, agriculture is on the frontline of many such efforts, and is right to push hard to insure that all contributors are equally engaged. However, the region is likely to provide a serious test of how effective voluntary efforts can work to tackle serious threats to water quality. Producers have significant stakes in the outcome of this debate, and should watch the process carefully as it proceeds, Washington Insider believes.

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