For more than a decade, my colleagues and I have written for GreenStone on environmental issues that affect agriculture. When driven by science, the awareness and appropriate response and management to these issues can help protect human health and the environment. Science-based management also provides appropriate regulation. However, as evidenced below, environmental issues are not just matters of science – they include legal, political, and emotional components as well.
Waters of the United States (WOTUS)
Earlier this year, the Supreme Court of the United States (SCOTUS) issued a decision on the Sackett II case regarding the Waters of the United States or WOTUS. While many legal pundits were anticipating the ruling in favor of the Sacketts, few expected the unanimous decision that a wetland is not a jurisdictional water. Further, SCOTUS rejected the “significant” nexus definition as too vague. Note: For background see our April 2023 article in Partners.
With this SCOTUS ruling, the WOTUS rule issued on December 30, 2022, and published in January 2023 was now in need of revision. The Biden Administration set out to offer an updated WOTUS rule by September 1, 2023. Upon initial review, the newly-issued WOTUS rule (August 29, 2023), appears to be straightforward.
The new WOTUS rule revises the January 2023 text to remove all language pertaining to significant nexus. It deletes interstate wetlands from the category of interstate waters. It also amends the definition of “adjacent” to mean “having a continuous surface connection.”
At the time of writing this article, legal and technical reviews from those likely or potentially regulated under WOTUS seem to be generally pleased with the revised WOTUS rule.
A Note of Caution
One note of caution came from former Assistant Administrator for Enforcement and Compliance Assurance at the Environmental Protection Agency, Susan Bodine. Ms. Bodine, now a lawyer at B&W Law, notes: “Many concerns of the regulated community arise from interpretations found in the preamble to the January 2023 final rule. 88 Fed. Reg. 3004 (Jan. 18, 2023). The preamble instructs the agencies on how to identify a ‘tributary,’ a ‘relatively permanent’ water, and ‘a continuous surface connection,’ none of which is defined in rule language.”
PFAS
The potential presence of per- and polyfluoroalkyl substances (PFAS) in the environment is a growing concern, not just for typical manufacturing companies, but for everyone – including agriculture. Their widespread use in a host of industrial and consumer products has resulted in their presence around the globe in humans, animals, water, and soil.
PFAS are a concern because some of the PFAS compounds (there are thousands of PFAS compounds) are suspected of causing adverse health effects at very low levels (parts per trillion). However, there remains considerable uncertainty regarding which compounds and at what concentrations the effects are manifested, as toxicological studies are still not complete. In fact, if you go to the EPA’s PFAS website (epa.gov/pfas/pfas-explained), the agency states that one of the things they don’t understand concerning PFAS is, “How harmful PFAS are to people and the environment.”
PFAS in Groundwater
There are two main ways that farms may be at risk of being impacted by these chemicals. First, groundwater can be impacted by military bases (and commercial airports) that used certain fire suppressants known as Aqueous Film Forming Foam (AFFF). This was the case for a dairy Concentrated Animal Feeding Operation (CAFO) in New Mexico. The farm, which used groundwater for crop irrigation and cow hydration resulted in the farm and the nearly 4,000 cows becoming an environmental liability, not an asset. The cows were subsequently euthanized.
Attorney David Crass (Michael Best) recently wrote, “Since 2021, the US Department of Defense (DOD) has notified nearly 4,000 agricultural operations of the potential for PFAS contamination in aquifers associated with military installations, adding nearly 400 new notifications in its most recent update.”
There has been some movement under the National Defense Authorization Act (NDAA) to allow for government funding to compensate farms impacted by environmental releases at military bases.
PFAS in Biosolids
Second, and the more common way farms have been affected is through land application of biosolids. Publically-owned treatment works (POTWs) that treated effluent from industrial dischargers that used PFAS (e.g., plating companies, paper companies, semiconductors, and more) may have PFAS in their biosolids. These biosolids in many cases have been land applied to farms – in many instances for decades. This was the case for several farms in Maine that unknowingly accepted PFAS-impacted biosolids. Because PFAS are extremely chemically stable compounds, they can persist for decades and even much longer. Thus, the nickname: forever chemicals.
In 2022, Maine became the first state to ban the land application of biosolids.
PFAS as Hazardous Substances
Finally, the pending federal legislation to make certain PFAS chemicals “hazardous substances” under the “Superfund” program could potentially have wide-reaching impacts. If finalized (it was delayed until February 2024), it may result in sites with the specific regulated PFAS above threshold quantities being labeled hazardous and would potentially establish liability and remediation obligations for current and former owners of these sites.
It appears that we are much closer to a final definition of a WOTUS but we will have to let some more dust settle before saying this with any certainty. The PFAS issue is more complicated and potentially more consequential. The regulated community needs a robust evaluation of the real human health and environmental risks associated with PFAS sooner than later.
These and other environmental regulations are becoming increasingly far-reaching and require close attention.
To view the article in the online 2023 Fall Partners Magazine, click here.
