Environmental Regulation and Agriculture

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R41622

Environmental Regulation and Agriculture

Summary

As the U.S. and global economies continue to struggle, some inside and outside of Congress have

expressed concern about how environmental regulation may stifle growth and productivity. Much

of the criticism has focused on environmental regulations promulgated by the Environmental

Protection Agency (EPA). Some claim that EPA is overreaching its regulatory authority and

imposing costly and burdensome requirements on society. In general, the agriculture community,

among others, has been vocal in its concerns, contending that EPA appears to be focusing some of

its recent regulatory efforts on agriculture. Many public health and environmental advocates, on

the other hand, support many of EPA’s overall regulatory efforts and in some cases argue that EPA

has not taken adequate action to control the impacts of certain agricultural activities.

Most environmental regulations, in terms of permitting, inspection, and enforcement, are

implemented by state and local governments, often based on federal EPA regulatory guidance. In

some cases, agriculture is the direct or primary focus of the regulatory actions. In other cases,

agriculture is one of many affected sectors. Traditionally, farm and ranch operations have been

exempt or excluded from many environmental regulations. Given the agricultural sector’s size

and its potential to affect its surrounding environment, there is interest in both managing potential

impacts of agricultural actions on the environment and also maintaining an economically viable

agricultural industry. Of particular interest to agriculture are a number of regulatory actions

affecting air, water, energy, and pesticides.

Agricultural production practices from both livestock and crop operations generate a variety of

substances that enter the atmosphere, potentially creating health and environmental issues. Recent

actions by EPA to regulate emissions and pollutants have drawn criticism, including greenhouse

gas emission reporting and permitting requirements, and National Ambient Air Quality Standards

(NAAQS) related to particulate matter (commonly referred to as dust).

Water quality issues also are of interest to the agricultural industry, as water is an input for

production and can also be degraded as a result of production through the potential release of

sediment, nutrients, pathogens, and pesticides. Federal environmental laws largely do not regulate

agricultural actors, in many cases giving responsibilities to the states. One exception is large

concentrated animal feeding operations (CAFOs), which are subject to federal permitting

requirements. Constraints on agricultural production to reduce pollution discharges typically arise

at the state level in response to local concerns, and how to manage agricultural sources has been a

prominent issue in several locations, such as the Chesapeake Bay and Florida. A proposed federal

rule to define “waters of the United States” has drawn criticism from agriculture and others.

Changes in energy policy, namely increased bioenergy production continue to be important to

many in the agricultural industry, based on the potential of corn-based biofuel production to

contribute to the nation’s energy supply through both the renewable fuel standard (RFS) and the

increased percentage of ethanol in gasoline (E15).

Hundreds of chemical products are available to repel or kill “pests” that affect agricultural

production. The federal regulation of these pesticides includes registering and restricting their

use. The risks associated with agricultural pesticide use and possible impacts on human health

and the environment also have led to recent federal regulatory reviews.

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Contents

Introduction...................................................................................................................................... 1

Report Content and Caveats ...................................................................................................... 2

Report Organization .................................................................................................................. 3

Air .................................................................................................................................................... 3

Mandatory Reporting of Greenhouse Gases (GHGs) ................................................................ 4

GHG Emissions Tailoring Rule and the “Cow Tax” ................................................................. 6

Reduction of Emissions from Gasoline/Diesel Powered Stationary Engines............................ 8

National Ambient Air Quality Standards (NAAQS)—Particulate Matter ................................. 9

National Ambient Air Quality Standards (NAAQS)—Ozone ................................................. 13

EPCRA and CERCLA Reporting Requirements ..................................................................... 14

Water .............................................................................................................................................. 15

Implementation of Existing Clean Water Act Permit Requirements for CAFOs .................... 16

Chesapeake Bay Protection and Restoration ........................................................................... 18

Florida Nutrient Water Quality Standards ............................................................................... 21

Defining “Waters of the United States” ................................................................................... 23

Spill Prevention, Control, and Countermeasure (SPCC) Plans ............................................... 25

Energy ............................................................................................................................................ 28

Renewable Fuels Standard (RFS2) Rule ................................................................................. 28

E15 Waiver Petition ................................................................................................................. 31

Pesticides ....................................................................................................................................... 33

Clean Water Act Permits for Pesticide Application ................................................................. 34

Pesticide Spray Drift................................................................................................................ 36

Atrazine ................................................................................................................................... 38

Pesticide Registrations and the Endangered Species Act (ESA) ............................................. 39

Figures

Figure 1. Status of PM10 Nonattainment Areas .............................................................................. 11

Tables

Table 1. CRS Specialists on Environmental Issues ......................................................................... 3

Table 2. EPA Animal Population Threshold Below Which Facilities Would Not Be

Required to Report GHG Emissions............................................................................................. 6

Contacts

Author Contact Information........................................................................................................... 42

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Introduction

A healthy agricultural industry and a healthy environment are both important to the nation.

However, agricultural production can have varying impacts on the environment. The use of both

natural resources (e.g., soil and water) and synthetic inputs (e.g., fertilizers and pesticides) in

agricultural production can sometimes create a negative impact on the surrounding ecosystem.

For example, soil erosion, farm chemical runoff, and overgrazing can affect water and air

resources. Converting grassland prairies and wetlands to crop production can impact wildlife

populations. The magnitude of these environmental impacts varies widely across the country and

changes over time.

Traditionally, farm and ranch operations have been exempt or excluded from many federal

environmental statutes and regulations, and some point out that the relative number of

environmental regulations affecting agriculture is small compared to other industries.1

Historically, environmental policies have focused on large industrial sources such as factories and

power plants, because attempting to regulate numerous individual crop and livestock operations

can be a challenge for government regulators. Therefore, the current federal farm policy

addressing environmental concerns is in large part voluntary; that is, it seeks to encourage

agricultural producers to adopt conservation practices through economic incentives. Because

natural resources are a major input into most agricultural production, many in agriculture cite the

health of the surrounding environment as being important for long-term productivity. However,

given the agricultural sector’s size in the landscape2 and its potential to affect its surrounding

environment, there is interest in both managing potential impacts of agricultural actions on the

environment and also maintaining an economically viable agricultural industry.

The U.S. Environmental Protection Agency (EPA) is the primary federal authority for

administering environmental protection policies, while the U.S. Department of Agriculture

(USDA) is the primary federal authority for incentivizing agricultural production. Most

environmental regulation, in terms of permitting, inspection, and enforcement, is done by state

and local governments, typically based on policies administered by the EPA. USDA provides both

educational outreach and technical and financial assistance opportunities for producers to

implement environmentally sustainable practices.3 While many of these voluntary programs and

policies have been in place for decades and have had considerable success, some question

whether a strictly voluntary approach to agricultural conservation generates sufficient

environmental gains.4 EPA, on the other hand, has recently received criticism from some

lawmakers and industry leaders for appearing to focus some of its recent regulatory efforts on

agriculture. Some claim EPA has overreached its regulatory authority. In general, agricultural

industry groups, among others, have been vocal in their displeasure with recent EPA regulatory

proposals and the costs associated with protecting public health and the environment. Others,

J. B. Ruhl, “Farms, Their Environmental Harms, and Environmental Law,” vol. 27, no. 2 (2000), pp. 263-350.

A total of 1.9 billion acres of land and water cover the contiguous 48 states, of which 71% is non-federal rural land

(nearly 1.4 billion acres). Non-federal rural lands are predominantly rangeland (409 million acres), forest land (406

million acres), and cropland (357 million acres). Source: USDA, NRCS, 2007 National Resources Inventory, Summary

Report, Washington, DC, December 2009, p. 6, http://www.nrcs.usda.gov/technical/NRI/2007/

2007_NRI_Summary.pdf.

For more information, see CRS Report R40763, Agricultural Conservation: A Guide to Programs.

Michelle Perez, Craig Cox, and Ken Cook, Facing Facts in the Chesapeake Bay, Environmental Working Group,

September 2009, http://www.ewg.org/files/chesapeake-bay-pollution.pdf.

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such as environmental groups, have supported some of the regulatory actions and in some

instances voiced concerns that the federal actions may not go far enough in protecting public

health and the environment, prompting some lawmakers offer statements supporting various EPA

regulatory efforts.

Criticisms of the regulatory actions are reflected in recent legislative proposals that would restrict

or prohibit certain actions.5 Beyond the criticism of individual regulations of EPA and other

agencies, there also are calls for broad regulatory reforms, for example, to reinforce the role of

economic considerations in agency decision making or to increase Congress’s role in approving

or disapproving regulatory decisions. Congress will likely continue to give attention to EPA’s and

other federal agencies’ roles in regulating environmental protection. Both the Senate and House

Committees on Agriculture have shown particular interest in EPA’s actions and conducted

oversight hearings on regulatory impacts on agriculture during the 112th Congress.6

Report Content and Caveats

This report provides the background, status, and issues related to selected environmental

regulations or initiatives possibly affecting agriculture that have drawn attention in and beyond

Congress.7 An issue’s inclusion in this report is not intended to suggest or imply that the

regulation or action has either a beneficial or harmful effect on agriculture or to what degree.

Similarly, regulatory actions not included in this report do not indicate the lack of potential

impact on the agriculture sector.

This report only addresses federal regulatory actions. In many cases, constraints on agricultural

production to reduce pollution emissions arise at the state level in response to local concerns.

State and local regulations are not specifically included in this report, but may be discussed

generally where appropriate. Actions considered voluntary or in response to regulatory actions are

also not included. This means that many USDA programs and initiatives, which offer funding to

agricultural producers mitigate environmental impacts, are not discussed in this report.

The majority of the regulations discussed in this report are administered by EPA, though not all.

In some cases, agriculture is the direct or primary focus of the regulatory actions. In other cases,

agriculture is one of many affected sectors. In many cases, for a regulation to become effective,

EPA rules must be adopted by states to which the program has been delegated (e.g., most

environmental permitting programs are delegated to qualified states). Moreover, many states

require that the state legislature review new regulations before the new rules would take effect.

The general regulatory development and compliance process can be tedious and complex. In

some cases, the promulgation and implementation of regulations may take years.8 In the case of

For example, the House-passed long-term continuing resolution H.R. 1, which was not enacted, is discussed further

below. For more information, see CRS Report R41698, H.R. 1 Full-Year FY2011 Continuing Resolution: Overview of

Environmental Protection Agency (EPA) Provisions.

For example, U.S. Congress, Senate Committee on Agriculture, Nutrition, and Forestry, Oversight Hearing to

Examine the Impact of EPA Regulation on Agriculture, 111th Cong., 2nd sess., September 23, 2010; and U.S. Congress,

House Committee on Agriculture, Public Hearing to Review the Impact of EPA Regulation on Agriculture, 112th

Cong., 1st sess., March 10, 2011.

For additional information regarding EPA regulations beyond those affecting agriculture, see CRS Report R41561,

EPA Regulations: Too Much, Too Little, or On Track?.

Some regulations do not become effective immediately. In some cases, the regulation takes effect over time or

gradually expands to affect more individuals. Virtually all major EPA regulatory actions are subjected to court

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some environmental regulations, the agencies must adhere to court-ordered requirements and

deadlines.9

This report has been revised and updated a number of times since its initial release in early 2011.

A few of the initial issues covered in this report are no longer congressionally active, either due to

enacted legislation or because of a change in Administration priorities. These issues have been

removed and new emerging issues have been added. Congressional interest in environmental

regulations affecting agriculture remains and oversight is ongoing. Legislative action and

oversight is discussed within each of the sections below.

Report Organization

The remainder of this report is organized under four broad subheadings: Air, Water, Energy, and

Pesticides. Each section includes selected regulatory actions and provides background

information and statutory authority, followed by the current status of the rule or regulatory action

and issues identified or raised by the agricultural community regarding the regulatory action.

Finally, each section identifies the appropriate CRS specialist for additional information; these

contacts are also listed in Table 1.

Table 1. CRS Specialists on Environmental Issues

Issue Area

CRS Specialist

Contact Information

Voluntary agriculture conservation

(name redacted)

Clean Air Act

Jim McCarthy

/redacted/@crs.loc.gov, 7-....

Clean Air Act, particulate matter

Rob Esworthy

/redacted/@crs.loc.gov, 7-....

Clean Water Act

(name redacted)

/redacted/@crs.loc.gov, 7-....

Spill prevention

Jonathan Ramseur

/redacted/@crs.loc.gov, 7....

Agriculture-based biofuels, ethanol

(name redacted)

/redacted/@crs.loc.gov, 7-....

Advanced biofuels

(name redacted)

/redacted/@crs.loc.gov, 7-....

Clean Air Act, mobile sources, biofuels

Brent Yacobucci

/redacted/@crs.loc.gov, 7-....

Pesticides, Toxic Substances Control Act

Jerry Yen

/redacted/@crs.loc.gov, 7-....

Endangered Species Act

(name redacted)

/redacted/@crs.loc.gov, 7-....

Air

Agricultural production practices from both livestock and crop operations generate a variety of

substances that enter the atmosphere, potentially creating health and environmental issues.

Agriculture’s effect on air quality rose to national importance in the 1930s, when the conversion

of native grasslands to cropland caused severe dust storms known as the Dust Bowl. The federal

(...continued)

challenge, which also delays the implementation.

Court-ordered dates for proposed or promulgated regulations may change. It is not uncommon for EPA to request

extensions of time, often due to the need to analyze extensive comments.

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response to this phenomenon created many of the conservation outreach and education programs

that remain in place today.10 While dust storms of this proportion are rare in the United States

today, issues associated with soil erosion, particulates and farm chemical emissions, and livestock

odor are still of concern.

The following section covers five federal regulations relating to air, including

•

mandatory reporting of greenhouse gases (GHGs);

•

GHG emissions tailoring rule and the “cow tax”;

•

reductions of emissions from gasoline/diesel powered stationary engines;

•

national ambient air quality standards (particulate matter and ozone); and

•

Emergency Planning and Community Right-to-Know Act (EPCRA) and

Comprehensive Environmental Response, Compensation, and Liability Act

(CERCLA) reporting requirements.

Mandatory Reporting of Greenhouse Gases (GHGs)

EPA was required by the FY2008 Consolidated Appropriations Act11 “to develop and publish a ...

final rule not later than 18 months after the date of enactment of this Act, to require mandatory

reporting of greenhouse gas (GHG) emissions above appropriate thresholds in all sectors of the

economy of the United States.”

On October 30, 2009, EPA promulgated the final Greenhouse Gas Reporting Rule.12 The rule

required suppliers of fossil fuels or industrial gases, manufacturers of vehicles and engines,

owners or operators of electric power plants, and other—mostly industrial—sources to report

their emissions of GHGs to EPA annually, beginning in 2011. Covered entities are required to

report to EPA if they emit 25,000 tons or more of carbon dioxide or the equivalent amount of five

other GHGs (methane, nitrous oxide, hydrofluorocarbons, perfluorocarbons, and sulfur

hexafluoride and other fluorinated gases). About 10,000 facilities in 31 categories of sources were

covered by the rule, as promulgated. EPA subsequently added 11 other categories of sources.

Status

The only agricultural sources covered by the Reporting Rule are manure management systems

that emit methane and nitrous oxide in amounts greater than the reporting threshold. EPA

identified six specific categories of agricultural sources that could be subject to the rule: beef

cattle feedlots; dairy cattle and milk production facilities; hog and pig farms; chicken egg

production facilities; turkey production; and broilers and other meat type chicken production. In

all, EPA estimates that 107 livestock facilities nationwide would need to report under the rule.

For additional information, see CRS Report RL34069, Technical Assistance for Agriculture Conservation.

P.L. 110-161.

U.S. Environmental Protection Agency, “Mandatory Reporting of Greenhouse Gases,” 74 Federal Register 56260,

October 30, 2009.

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In EPA’s FY2010 appropriations act,13 however, Congress included language barring EPA from

using funds under that act to implement mandatory GHG reporting by manure management

facilities. This prohibition has been carried over into FY2011, FY2012, FY2013, and FY2014 by

the continuing resolutions and appropriations acts that have funded EPA’s continued operation,

including P.L. 113-76, the Consolidated Appropriations Act of 2014. Therefore, despite the

inclusion of manure management systems among the regulated entities, no agricultural sources

are currently required to comply with the Reporting Rule.

Issues

For the facilities required to report, the rule imposes little cost because it only requires monitoring

and reporting, and the monitoring does not require direct measurement of emissions. EPA

considered requiring direct measurement of GHG emissions from manure management systems,

but rejected the approach due to what it termed “the extreme expense and complexity of such a

measurement program.”14 Instead, the agency promulgated an approach that allows the use of

default factors, such as a system emission factor, for certain elements of the calculation,

combined with the use of site-specific data (e.g., number of livestock). EPA estimated the total

annual cost of the rule for the 107 potentially affected manure management facilities at $300,000.

In comments on the proposed rule, a number of agricultural stakeholders noted that agriculture as

a whole is responsible for less than 1% of total GHGs emitted and questioned why manure

management systems in particular were included in the proposal. Other categories of agricultural

sources, such as livestock enteric fermentation and soil management, emit larger amounts of

methane and nitrous oxide. EPA explained that it did not include reporting by the other

agriculture categories because, for those sources, no direct GHG emission measurement methods

are available except for expensive and complex equipment. Using emissions estimates for such

sources, instead of direct measurement, would have a high degree of uncertainty and could

burden a large number of small emitters.

Commenters also expressed concern about the difficulty that livestock facilities might have in

determining whether or not they are subject to the rule. In response, EPA modified the proposal to

remove manure sampling requirements and instead will allow facilities to use default values for

estimating emissions. The threshold table within the final rule (Table 2) identifies animal

population threshold levels below which facilities are not required to report emissions.

CRS Contacts

(name redacted), Specialist in Resources and Environmental Policy, 7-....,

[redacted]@crs.loc.gov, or Jim McCarthy, Specialist in Environmental Policy, 7-....,

[redacted]@crs.loc.gov.

Department of the Interior, Environment, and Related Agencies Appropriations Act, 2010, P.L. 111-88.

U.S. Environmental Protection Agency, “Mandatory Reporting of Greenhouse Gases,” 74 Federal Register 56339,

October 30, 2009.

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Table 2. EPA Animal Population Threshold Below Which Facilities Would Not Be

Required to Report GHG Emissions

Animal Group

Average Animal

Population (Head)

Beef

29,300

Dairy

3,200

Swine

34,100

Poultry:

Layers

723,600

Broilers

38,160,000

Turkeys

7,710,000

Source: U.S. Environmental Protection Agency, “Mandatory Reporting of Greenhouse Gases,” 74 Federal

Notes: For all animal groups except dairy, the average annual animal population represents the total number of

animals present at the facility. For dairy facilities, the average annual animal population represents the number of

mature dairy cows present at the facility. For additional information, see Table JJ-1of the Environmental

Protection Agency, “Mandatory Reporting of Greenhouse Gases,” 74 Federal Register 56485, October 30, 2009.

GHG Emissions Tailoring Rule and the “Cow Tax”

EPA promulgated standards for GHG emissions from new light duty motor vehicles on May 7,

2010.15 The standards themselves are not considered particularly controversial, but their

implementation, on January 2, 2011, triggered two other requirements of the Clean Air Act

(CAA) that apply to stationary sources. The first of these is a requirement that stationary sources

emitting any air pollutant “subject to regulation” under the act must obtain a permit under Title V

of the CAA (Title V permit) if they emit more than 100 tons per year of the pollutant subject to

regulation. Agricultural sources, such as confined animal feeding operations (CAFOs), are among

those that could potentially be subject to this permit requirement. Because permit applicants must

pay a fee to cover the costs of administering the permit program, many in the agriculture

community have referred to this requirement as the “cow tax.”

The second requirement triggered by implementation of the motor vehicle standards is a

requirement that new or modified stationary sources emitting more than 100 or 250 tons annually

of any pollutant subject to regulation under the act must obtain pre-construction permits (referred

to as “PSD” permits) and install Best Available Control Technology (BACT) to reduce emissions.

Status

On June 3, 2010, EPA promulgated a rule that sets higher thresholds for the Title V permit and

PSD/BACT requirements that would apply to GHG emissions.16 EPA says that under the

U.S. Environmental Protection Agency, U.S. Department of Transportation, “Light-Duty Vehicle Greenhouse Gas

Emission Standards and Corporate Average Fuel Economy Standards; Final Rule,” 75 Federal Register 25324-25728,

May 7, 2010.

U.S. Environmental Protection Agency, “Prevention of Significant Deterioration and Title V Greenhouse Gas

Tailoring Rule; Final Rule,” 75 Federal Register 31514, June 3, 2010.

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promulgated rule, the agency has not identified any agricultural sources that would be required to

obtain permits for GHG emissions, and therefore none would be subject to BACT requirements.17

Under the rule, called the GHG “Tailoring Rule,” the threshold initially is annual emissions of

75,000 tons of carbon dioxide equivalents, not 100 or 250 tons as required for other pollutants by

the PSD and Title V permits. With this threshold, the nation’s largest GHG emitters, including

power plants, refineries, cement production facilities, and about two dozen other categories of

sources (an estimated 17,000 facilities in all, or nearly 70% of the nation’s largest stationary

source GHG emitters), are the only sources required to obtain permits. Farms, smaller businesses,

and large residential structures (about 6 million sources in all these categories), which would

otherwise be required to obtain permits after GHGs became subject to regulation, are shielded

from permitting requirements, including permit fees.

The June 2010 Tailoring Rule does not permanently exempt smaller sources. In promulgating the

rule, EPA said it expected to lower the threshold, but not below 50,000 tons of GHG emissions,

through separate rule-making that would take effect in 2013. The agency has subsequently

decided not to lower the threshold and has also stated that, within five years of the rule’s

promulgation, EPA and state permitting authorities would conduct a study of the permitting

authorities’ ability to administer more inclusive PSD and Title V permit programs. Within a year

of the study’s completion, EPA and state permitting authorities would conduct rulemaking for this

phase of the program. The study might confirm the threshold, revise it, or establish other

streamlining techniques for subsequent permitting activity. It is unclear how agricultural sources

might be affected by these potential rule changes.

In the FY2010 appropriations act for EPA,18 Congress included a provision prohibiting EPA from

using funds under the act to promulgate or implement any rule requiring the issuance of CAA

Title V permits for GHG emissions associated with livestock production. This prohibition was

carried over into FY2011, FY2012, FY2013, and FY2014 by the subsequent appropriations

measures that fund EPA’s continued operation.

Issues

The issues related to the Tailoring Rule are similar to those raised by the “Mandatory Reporting

of Greenhouse Gases (GHGs),” discussed above. The rule itself appears to exempt all agricultural

sources by its high thresholds and the exclusion of fugitive emissions, but many are concerned

about whether EPA intends to consider any agricultural sources as subject to regulation under

future Clean Air Act GHG rules.

EPA Briefing on the Tailoring Rule, House Energy and Commerce Committee, May 14, 2010. This issue is also

discussed in RTI International, for U.S. EPA, “Regulatory Impact Analysis for the Final Prevention of Significant

Deterioration and Title V Greenhouse Gas Tailoring Rule,” Final Report, May 2010, pp. 64-66, at http://www.epa.gov/

ttn/ecas/regdata/RIAs/riatailoring.pdf. A key reason that agricultural sources would not require permits is that EPA

excludes what are called “fugitive emissions” from the emissions used to determine whether an agricultural source is a

major source subject to permit requirements. Fugitive emissions are emissions that are not released through a stack or

vent, or could not be reasonably collected and released through a stack or vent.

P.L. 111-88.

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CRS Contacts

(name redacted), Specialist in Resources and Environmental Policy, 7-....,

[redacted]@crs.loc.gov, or Jim McCarthy, Specialist in Environmental Policy, 7-....,

[redacted]@crs.loc.gov.

Reduction of Emissions from Gasoline/Diesel Powered

Stationary Engines

On June 15, 2004, EPA promulgated emission control standards for hazardous air pollutants

emitted by gasoline- and diesel-powered stationary engines. This is primarily of concern to

agricultural operations that rely on gas and diesel engines for irrigation pumping. The standards

are generally referred to as the RICE (Reciprocating Internal Combustion Engine) rules. Besides

setting emission standards, the rules would have exempted these engines from emission controls

during startup, shutdown, and periods of malfunction. On December 18, 2008, the D.C. Circuit

Court of Appeals ruled that the standards must address emissions during all phases of operation,

including periods of startup, shutdown, and malfunction. As a result, the court vacated and

remanded the rules to EPA.

Status

EPA subsequently divided the standards into two regulatory actions. On March 3, 2010, it issued

a final rule for existing diesel-powered stationary engines.19 The rule applies to more than

900,000 stationary engines used as generators and to power pumps in industrial and agricultural

settings. EPA issued final emissions standards for existing stationary engines that burn gasoline,

natural gas, and landfill gas, known as spark ignition engines, on August 20, 2010.20

Issues

The proposed rules were criticized by some state permitting authorities and industry groups as

being unworkable, difficult to enforce, and perhaps unnecessary in rural settings. In response to

these comments, EPA stated that most engines used by agricultural sources are smaller than 300

horsepower, and will be subject only to required management practices (e.g., frequency of oil

changes). Catalysts or other control equipment would not be required.

CRS Contact

Jim McCarthy, Specialist in Environmental Policy, 7-...., [redacted]@crs.loc.gov.

U.S. Environmental Protection Agency, “National Emission Standards for Hazardous Air Pollutants: Reciprocating

Internal Combustion Engines; Final Rule,” 75 Federal Register 9648, March 3, 2010.

U.S. Environmental Protection Agency, “National Emission Standards for Hazardous Air Pollutants for

Reciprocating Internal Combustion Engines; Final Rule,” 75 Federal Register 51570, August 20, 2010.

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National Ambient Air Quality Standards (NAAQS)—

Particulate Matter

National Ambient Air Quality Standards (NAAQS) are standards for outdoor (ambient) air that

are intended to protect public health and welfare from harmful concentrations of pollution.

NAAQS are at the core of the Clean Air Act, even though they do not directly regulate emissions.

In essence, they are standards that define what EPA considers to be clean air. Once a NAAQS has

been set, the agency, using monitoring data and other information submitted by the states,

identifies areas that exceed the standard and must, therefore, reduce pollutant concentrations to

achieve it. After these “nonattainment” areas are identified, state and local governments have up

to three years to produce State Implementation Plans that outline the measures they will

implement to reduce the pollution levels and attain the standards.

NAAQS have been set for six pollutants. The two that affect the largest number of areas are those

for ozone and particulate matter (PM). Because some farming and livestock practices contribute

to particulate matter emissions and because particulate matter and ozone can affect agricultural

productivity, the agricultural community has shown particular interest in these standards. NAAQS

ozone issues are discussed in the next section.

Status

Partially in response to an June 6, 2012 order by the U.S. District Circuit Court for the District of

Columbia,21 and as agreed to in a consent decree,22 EPA published a final rule revising the PM

NAAQS January 15, 2013. The January 2013 revisions change the existing (2006) annual healthbased (“primary”) standard for “fine” particulate matter 2.5 micrometers or less in diameter

(PM2.5), lowering the allowable average concentration of PM2.5 in the air from the current level of

15 micrograms per cubic meter (µg/m3) to a limit of 12 µg/m3. The existing “24-hour primary

standard” for PM2.5 that was reduced from 65 µg/m3 to 35 µg/m3 in 2006 was retained, as was the

existing standard for larger, but still inhalable, “coarse” particles less than 10 micrometers in

diameter, or PM10.

EPA promulgated its previous final revisions to the PM NAAQS and the associated national air

quality monitoring requirements on October 17, 2006,23 primarily strengthening the preexisting

(1997) PM2.5. The 2006 PM NAAQS revisions did not strengthen the existing annual standard for

PM10.24 The EPA periodic review (as mandated by statute25) of the PM standards supporting the

American Lung Ass'n v. EPA, D.D.C., No. 1:12-cv-243, order issued June 6, 2012.

American Lung Ass’n v. EPA, D.D.C., No. 1:12-cv-243, order signed September 4, 2012. See also U.S. EPA,

“Proposed Consent Decree,” 77 Federal Register 38060, June 26, 2012, http://www.gpo.gov/fdsys/search/

pagedetails.action?granuleId=2012-15603&packageId=FR-2012-06-26&acCode=FR, and American Lung Ass'n v.

EPA, D.D.C., No. 1:12-cv-243, joint motion filed June 5, 2012.

U.S. Environmental Protection Agency, “National Ambient Air Quality Standards for Particulate Matter,” 71 Federal

Monitoring Regulations,” 71 Federal Register 61236-61238, October 17, 2006. EPA indicated that it would be

expanding its research and monitoring programs to collect additional evidence on the differences between thoracic

coarse particles typically found in urban areas and those typically found in rural areas.

For additional information, see CRS Report RL34762, The National Ambient Air Quality Standards (NAAQS) for

Particulate Matter (PM): EPA’s 2006 Revisions and Associated Issues.

Section 109(d)(1) of the Clean Air Act requires EPA to review the NAAQS and the scientific information upon

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revisions published January 2013, was initiated at the same time as implementation of the current

2006 PM NAAQS.

Revising PM NAAQS starts a process that includes a determination of areas in each state that

exceed the standard and must therefore reduce pollutant concentrations to achieve it. Following

determinations of these “nonattainment” areas based on multiple years of monitoring data and

other factors, state and local governments must develop (or revise) State Implementation Plans

(SIPs) outlining measures to attain the standard. Based on statutory scheduling requirements,

nonattainment designations for revised PM NAAQS will not be determined until the end of 2014,

and states would have until at least 2020 to achieve compliance with the January 2013 revised

PM2.5 NAAQS. Based on anticipated reductions associated with several other existing national air

pollution control regulations and programs, EPA predicted that seven counties in California would

be the only areas unable to meet the new PM2.5 primary standard by 2020.

The 2006 revised NAAQS, primarily affected urban areas: 120 counties and portions of counties

in 18 states have been designated nonattainment areas for PM2.5 by EPA based on 2006-2008 air

quality monitoring data. Final designations for the 2006 PM NAAQS were published November

13, 2009. The majority of the roughly 3,000 counties throughout the United States (including

tribal lands) were designated attainment/unclassifiable, and are not required to impose additional

emission control measures to reduce PM2.5. For those 120 counties designated nonattainment for

PM2.5, states had until November 2012 to submit state implementation plans (SIPs) identifying

specific regulations and emission control requirements that would bring an area into compliance

with the standard.26

The EPA will not be designating any new nonattainment areas for PM10 NAAQS since the

standards were not strengthened by the 2013 NAAQS revision. Similarly, EPA did not designate

any new areas for PM10 following the 2006 final PM NAAQS revisions. To the contrary, a

number of counties previously designated nonattainment have been determined by EPA to be in

attainment since the 2006 NAAQS revisions. As indicated in Figure 1, below, the majority of the

counties throughout the United States (including tribal lands) are designated

attainment/unclassifiable for the PM10 NAAQS. As of February 6, 2014, 49 of the original 89

areas designated nonattainment for PM10 had been redesignated to maintenance.27 As shown in

Figure 1, the remaining 40 areas are either meeting the PM10 NAAQS based on assessment of

2010-2012 air quality data (most recent three years available) and awaiting consideration for

redesignation, have incomplete data, or remain nonattainment.28 Those areas previously

designated nonattainment for the PM10 NAAQS typically include, or were adjacent to, densely

populated localities, where PM monitors are frequently located. Only a subset of PM10 NAAQS

nonattainment areas in California and Arizona have SIPs that directly include requirements

related specifically to agricultural operations in addition to requirements for other sources.

(...continued)

which they are based at five-year intervals.

For additional information, see CRS Report R40096, 2006 National Ambient Air Quality Standards (NAAQS) for

Fine Particulate Matter (PM2.5): Designating Nonattainment Areas.

See EPA’s PM10 designations at http://www.epa.gov/air/oaqps/greenbk/pindex.html.

According to information provided to CRS by EPA’s Office of Air Quality Planning and Standards (OAQPS)

February 2014, 15 areas are meeting the PM10 NAAQS based on 2010-2012 air quality data. States have submitted

maintenance plans for 2 of these 15, and EPA has published clean data determinations for an additional 2 (of the 15)

areas to suspend the PM10 attainment plan requirement. Additionally, 13 areas have incomplete data and 12 areas

remain nonattainment based on 2010-2012 air quality data..

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Environmental Regulation and Agriculture

Figure 1. Status of PM10 Nonattainment Areas

(status is based on 2010-2012 air quality; many areas are indicated as only portions of counties)

Source: Provided directly to CRS by EPA’s Office of Air Quality Planning and Standards, February 2014.

Notes: Nonattainment area status as identified on the map is based on 2010-2012 air quality data, the most

currently available three-year dataset at the time the determinations were made. Areas not highlighted on the

map are designated attainment/unclassifiable. There are no PM10 nonattainment areas in Alaska and Hawaii, which

was not included on the map as provided by EPA. For more information, see CRS Report RL34762, The National

Ambient Air Quality Standards (NAAQS) for Particulate Matter (PM): EPA’s 2006 Revisions and Associated Issues.

Issues

The agricultural community has generally been more concerned with EPA’s review and potential

changes of the PM10 NAAQS than with the PM2.5 NAAQS.29 Thoracic coarse particles (PM10) are

generally emitted as a result of mechanical processes that crush or grind larger particles or the

resuspension of dusts.30 While certain agricultural operations can contribute to emission of

PM10—sometimes referred to as “farm dust”—there are many sources of thoracic coarse particles,

for example, unpaved and paved roads, traffic-related emissions such as tire and brake lining

materials, direct emissions from industrial operations, construction and demolition activities, and

mining operations. EPA has noted that atmospheric science and monitoring information indicates

There was some concern regarding designations in rural areas for the 2006 PM2.5 NAAQS. The designated

nonattainment areas for the PM2.5 are primarily concentrated in and around highly populated metropolitan areas.

U.S. Environmental Protection Agency, “National Ambient Air Quality Standards for Particulate Matter,” 71 Federal

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Environmental Regulation and Agriculture

that exposures to PM10 tend to be higher in urban areas than in nearby rural locations.31 Urban or

industrial ambient mixes of PM10 dominated by high-density vehicular, industrial, and

construction emissions have been the primary concern with respect to reducing the negative

health effects. EPA continues to research the link between coarse particle composition and

toxicity, including the toxicity of urban versus rural particles.

During the review process leading up to the publication of the revised PM NAAQS in January

2013, some Members of the 112th Congress raised concerns in letters to the EPA Administrator32

and during oversight hearings,33 about EPA’s staff draft reports,34 the Clean Air Scientific

Advisory Committee (CASAC) recommendations,35 and the potential impacts that tightening the

PM10 NAAQS standards could have on the agricultural industry. Many Members encouraged EPA

to retain the current PM10 NAAQS standards. Other Members urged the Administrator to include

retaining the PM2.5 as an option for consideration in the agency’s proposed rule.36 In addition,

proposed legislation during the 112th Congress addressed the ongoing PM NAAQS review.37 The

January 15, 2013, final PM NAAQS rule revised the PM2.5 standard but did not modify the

standards for inhalable “coarse” particles larger than 2.5 but smaller than 10 microns (PM10), nor

were modifications to the PM10 standard proposed in 2012.

CRS Contact

(name redacted), Specialist in Environmental Policy, 7-...., [redacted]@crs.loc.gov.

U.S. Environmental Protection Agency, “Review of the National Ambient Air Quality Standards for Particulate

Matter: Policy Assessment of Scientific and Technical Information,” p. 2-36, OAQPS Staff Paper EPA-452/R-05-005a,

December 2005, http://www.epa.gov/ttn/naaqs/standards/pm/data/pmstaffpaper_20051221.pdf.

Examples of letters to EPA Administrator Lisa Jackson include, but are not limited to, a joint letter from 21 Senators,

July 23, 2010, http://grassley.senate.gov/about/upload/Agriculture-07-23-10-dust-letter-to-EPA-signed-versiondoc.pdf; a joint letter from Senators Kent Conrad and Byron Dorgan and Representative Earl Pomeroy, August 5, 2010;

a joint letter from 75 House Members, September 27, 2010; and a joint letter from 99 House Members, March 29,

2011, http://fincher.house.gov/press-release/fincher-noem-call-epa-abandon-unreasonable-dust-standards.

See examples in footnote 6.

U.S. Environmental Protection Agency, “Release of Final Document Related to the Review of the National Ambient

Air Quality Standards for Particulate Matter,” 76 Federal Register 22665, April 22, 2011, http://www.epa.gov/ttn/

naaqs/standards/pm/data/20110419pmpafinal.pdf.

Letter from Dr. Jonathan M. Samet, Chair, Clean Air Scientific Advisory Committee, to the Honorable Lisa P.

Jackson, EPA Administrator. CASAC Review of Policy Assessment for the Review of the PM NAAQS—Second

External Review Draft, 2010. Available at http://yosemite.epa.gov/sab/sabproduct.nsf/

264cb1227d55e02c85257402007446a4/CCF9F4C0500C500F8525779D0073C593/$File/EPA-CASAC-10-015unsigned.pdf.

See joint letter from Representatives Fred Upton, Chairman, Committee on Energy and Commerce, Ed Whitfield,

Chairman, Subcommittee on Energy and Power, and Joe Barton, Chairman Emeritus, June 6, 2012,

http://energycommerce.house.gov/press-release/energy-and-commerce-leaders-urge-epa-protect-jobs-includingcurrent-pm-standards.

During the 112th Congress, the House passed the Farm Dust Regulation Prevention Act of 2011 (H.R. 1633), which

would have prohibited EPA from proposing, finalizing, implementing, or enforcing any regulation revising primary or

secondary NAAQS applicable to PM “with an aerodynamic diameter greater than 2.5 micrometers” for one year.

Further, the House-passed bill would have amended the CAA to exempt “nuisance dust” from the act and would have

excluded nuisance dust from references in the act to particulate matter “except with respect to geographic areas where

such dust is not regulated under state, tribal, or local law.” A general provision was also included in FY2012 Housereported EPA appropriations language (H.R. 2584, Title IV, Section 454) that would have restricted the use of FY2012

appropriations “to modify the national primary ambient air quality standard or the national secondary ambient air

quality standard applicable to coarse particulate matter (generally referred to as “PM10.”

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Environmental Regulation and Agriculture

National Ambient Air Quality Standards (NAAQS)—Ozone38

Under the CAA, EPA is to review the science for each of the NAAQS every five years, and either

reaffirm or revise the standard. The EPA Administrator completed a review of the ozone NAAQS

in March 2008, and made both the primary (health-based) and secondary (welfare-based)

standards more stringent, but he did not set the standards within the ranges recommended by the

independent panel of scientists that advises him (i.e., CASAC). He also rejected their advice to

change the form of the secondary standard to better measure whether ozone concentrations were

above levels needed to protect crops and forests from damage.39 Challenged in court, EPA agreed

to reconsider the March 2008 decisions (court decisions are discussed further below).

Status

On January 19, 2010, EPA proposed to strengthen the primary ozone NAAQS and to revise the

form of the secondary standard as the agency’s scientific advisers had recommended. Under the

proposed revisions, the vast majority of counties with ozone monitors would be found in

nonattainment of the primary standard, using the most recent available data, and many might

violate the secondary standard, as well.

EPA expected to promulgate a final version in late summer 2011, but on September 2, 2011, the

President requested that the agency withdraw its decision without promulgating it. Instead, the

agency will continue a review that it aims to complete by October 2015. EPA is also proposing

new monitoring requirements for the states, with more monitors to be placed in rural areas.40

Issues

EPA has resumed implementation of its 2008 ozone NAAQS, which affects few agricultural

areas. Despite the withdrawal of what would have been an even more stringent standard, air

quality is likely to improve as a result of regulations currently being phased in for cars, trucks,

and electric power plants, among other sources.

Ultimately, the 2015 ozone NAAQS revision could be one of the more significant regulations

promulgated by EPA, and could call attention to air quality problems in agricultural areas to a far

greater extent than previous standards.

CRS Contact

Jim McCarthy, Specialist in Environmental Policy, 7-...., [redacted]@crs.loc.gov.

For additional background on NAAQS, see the previously discussed “National Ambient Air Quality Standards

(NAAQS)—Particulate Matter” section.

The damage that crops and vegetation suffer from ozone exposure is cumulative over the growing season. In order to

better measure and provide protection against these impacts, EPA staff recommended a new seasonal (3-month)

average for the secondary standard that would cumulate hourly ozone exposures for the daily 12-hour daylight window.

Previously, the secondary standard simply measured the highest individual readings for any 8-hour period. CASAC

agreed with this recommendation.

For additional information on the proposed standards, see CRS Report R41062, Ozone Air Quality Standards: EPA’s

Proposed Revisions.

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Environmental Regulation and Agriculture

EPCRA and CERCLA Reporting Requirements

The Emergency Planning and Community Right-to-Know Act (EPCRA) and the Comprehensive

Environmental Response, Compensation, and Liability Act (CERCLA, or Superfund) have

reporting requirements that are triggered when specified quantities of certain substances are

released to the environment, including ammonia and hydrogen sulfide. Both ammonia and

hydrogen sulfide are chemicals generated by livestock manure, particularly swine and poultry,

when in concentrated animal populations. Both CERCLA and EPCRA include citizen suit

provisions that have been successfully used to take legal action against poultry and swine

operations for violations of the reporting requirements of the laws. In 2005, a group of poultry

producers petitioned EPA for an exemption from EPCRA and CERCLA release reporting

requirements, arguing that releases from poultry growing operations pose little or no risk to

public health, while reporting imposes an undue burden on producers and government

responders.41

Status

In December 2008, EPA promulgated an EPCRA/CERCLA administrative reporting exemption

for air releases.42 The final rule exempts hazardous substance releases that are emitted to the air

from all livestock operations (not just poultry farms) from CERCLA’s requirement to report

releases to the air to federal officials. It provides a partial exemption for such releases from

EPCRA’s requirement to report releases to state and local emergency officials: the final rule

continues to apply EPCRA’s reporting requirement to large CAFOs (those subject to Clean Water

Act permitting, discussed below in the section on “Implementation of Existing Clean Water Act

Permit Requirements for CAFOs”), but it exempts smaller facilities. The reporting exemptions in

the final rule took effect January 20, 2009.

The 2008 rule was challenged by industry groups, including the National Pork Producers Council,

as well as environmental advocates. Industry argued that CAFOs should be exempted from all

reporting under Superfund and EPCRA because air emissions from animal feeding operations

pose no threat to public health or the environment. Environmentalists also went to court, arguing

that CAFOs should report under both laws because air emissions from animal feedings operations

do pose a public health and environmental risk. The legal challenges were consolidated in the

U.S. Court of Appeals for the District of Columbia (Waterkeeper Alliance v. EPA, D.C. Cir., No.

09-1017). In June 2010 the government asked the court to remand the 2008 rule for

reconsideration and possible modification. The court approved the government’s request in

October 2010. EPA anticipates proposing a new or revised rule, but a schedule for doing so is

uncertain, and a rule has not been proposed. In the meantime, the 2008 exemption rule remains in

effect. According to press reports, EPA does not plan to directly regulate air emissions from

animal feeding operations, but is seeking to require their reporting.

Legislation was introduced in the 112th Congress to exclude “manure” from the definition of

hazardous substance under CERCLA and to remove reporting liability under CERCLA and

For additional information, see CRS Report RL33691, Animal Waste and Hazardous Substances: Current Laws and

Legislative Issues.

U.S. Environmental Protection Agency, “CERCLA/EPCRA Administrative Reporting Exemption for Air Releases,”

73 Federal Register 76948-76960, December 18, 2008.

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Environmental Regulation and Agriculture

EPCRA (H.R. 2997 and S. 1729), but no further action occurred. Proponents of the legislation

argue that Congress did not intend either of these laws to apply to agriculture and that

enforcement and regulatory mechanisms under other laws are adequate to address environmental

releases from animal agriculture. Opponents respond that enacting an exemption would severely

hamper the ability of government and citizens to know about and respond to releases of

hazardous substances caused by an animal agriculture operation. No similar legislation has been

introduced in the 113th Congress.

Issues

The agriculture industry remains concerned about the potential burden on large CAFOs of

complying with the EPCRA reporting requirements, even though the final rule exempted facilities

that are not subject to Clean Water Act permitting (see “Implementation of Existing Clean Water

Act Permit Requirements for CAFOs,” below). Critics of the 2008 rule, including

environmentalists and some state air quality officials, contend that the CERCLA and EPCRA

reports provide good information about emissions that enable citizens to hold companies

accountable in terms of how toxic chemicals are managed. Similarly, the agriculture industry is

concerned about potential liability that could arise for animal operations if manure were to be

defined as a “hazardous substance.”

CRS Contact

(name redacted), Specialist in Resources and Environmental Policy, 7-....,

[redacted]@crs.loc.gov.

Water

The release of sediment, nutrients, pathogens, and pesticides from agricultural production can

degrade the quality of water resources. While it is widely believed that agriculture can have a

significant impact on water quality, there is no comprehensive national study of agriculture’s

effect on water quality.43 Several water quality assessments document degradation from

agriculture practices; however, the extent and magnitude is difficult to measure because of its

nonpoint nature.44 Federal environmental laws, such as the Clean Water Act (CWA), largely do

not regulate agricultural actors, in many cases giving the regulatory responsibilities to the states.

Marc Ribaudo and Robert Johansson, Agricultural Resources and Environmental Indicators, 2006 Edition, USDA,

ERS, Economic Information Bulletin No. (EIB-16), Washington, DC, July 2006, p. 2.2, http://www.ers.usda.gov/

publications/AREI/EIB16/Chapter2/2.2/. Periodically EPA conducts a National Water Quality Inventory that provides

a general water quality assessment based on state collected data. The information for the EPA Inventory is for a

relatively small subset of the nation’s total waters that are assessed by states and does not represent the waterbodies that

were not assessed. For additional information, see EPA, National Water Quality Inventory: Report to Congress, 2004

Reporting Cycle, EPA 841-R-08-001, Washington, DC, January 2009, http://water.epa.gov/lawsregs/guidance/cwa/

305b/2004report_index.cfm.

Nonpoint source pollution generally refers to diffuse runoff from farms, ranches, forests and urban areas. Nonpoint

sources are also subject to natural variability (e.g., weather related events) and depend on many site-specific conditions,

such as topography, soil type, and climate.

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Environmental Regulation and Agriculture

Constraints on agricultural production to reduce pollution discharges typically arise at the state

level in response to local concerns.45

The following section covers five regulations relating to water, including

•

implementation of existing Clean Water Act permit requirements for CAFOs;

•

Chesapeake Bay protection and restoration;

•

Florida nutrient water quality standards;

•

defining “waters of the United States” for CWA regulatory purposes; and

•

spill prevention control and countermeasure (SPCC) plans.

Implementation of Existing Clean Water Act Permit Requirements

for CAFOs

Under the CWA, while most of agriculture is exempt from federal regulation, large CAFOs are

defined as point sources and thus are subject to the act’s prohibition against discharging pollutants

into U.S. waters without a permit. In October 2008, EPA issued a regulation to revise a 2003

CWA rule governing waste discharges from CAFOs. This action was necessitated by a 2005

federal court decision (Waterkeeper Alliance et al. v. EPA, 399 F.3d 486 (2nd Cir. 2005)), resulting

from challenges brought by agriculture industry groups and environmental advocacy groups that

vacated parts of the 2003 rule and remanded other parts to EPA for clarification.46 The 2008 rule

details requirements for permits, annual reports, and development of plans for handling manure

and wastewater. Parts of the rule are intended to control land application of manure and

agricultural wastewater.

Status

According to EPA, the 2008 rule applies to about 15,300 CAFOs that need permit coverage (74%

of the 20,700 CAFOs operating in 2008).47 Under the rule, CAFOs were to obtain permits and

develop and implement nutrient management plans by February 27, 2009.

Further legal challenges followed promulgation of the 2008 revised rule. Agricultural industry

groups (although generally satisfied with the rule) filed lawsuits in several federal appellate

circuits. Environmental groups also brought a legal challenge to the rule. The various petitions

were consolidated in the U.S. Court of Appeals for the 5th Circuit. In addition, EPA officials

discussed with environmental plaintiffs possible settlement of portions of the litigation that could

involve additional regulatory changes. In December 2009, the court agreed to a joint request from

Much of the federal response to water quality concerns for agriculture is primarily voluntary and incentive-based.

U.S. Environmental Protection Agency, “Revised National Pollutant Discharge Elimination System Permit

Regulation and Effluent Limitations Guidelines for Concentrated Animal Feeding Operations in Response to the

Waterkeeper Decision, Final Rule,” 73 Federal Register 225, November 20, 2008, pp. 70417-70486. For additional

information on EPA’s response to the court decision, see CRS Report RL33656, Animal Waste and Water Quality:

EPA’s Response to the Waterkeeper Alliance Court Decision on Regulation of CAFOs.

The rule specifies thresholds above which permits are required, such as animal feeding operations that stable or

confine more than 700 dairy cows, 2,500 swine weighing 55 pounds or more, or 500 horses.

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Environmental Regulation and Agriculture

EPA and environmentalists to sever the activists’ portion of the litigation. In settling with

environmental plaintiffs, EPA agreed to issue guidance aimed at clarifying what CAFOs must do

to comply with federal clean water regulations and to help CAFO owners determine whether they

need permits; the guidance was issued in May 2010.48

In settling that part of the lawsuit, EPA also agreed to propose a rule within one year to collect

facility information from all CAFOs, such as number of types of animals, type and capacity of

manure storage or treatment process, and quantity of manure generated annually by the CAFO, in

order to provide a CAFO inventory and assist in implementing the 2008 rule. In October 2011,

EPA proposed a rule, referred to as the CAFO reporting rule, that would require CAFOs to submit

a specific set of basic operational information to EPA.49 The proposal would require CAFOs to

provide the following basic information: facility contact information; production area location;

whether the CAFO has a CWA permit; the number and type of animals at the CAFO; and the

number of acres available for land application of manure, litter, and process wastewater. The

proposed rule drew criticism from industry groups who contend that the agency lacks legal

authority to require CAFOs that do not discharge to report facility information. Environmental

advocates defended EPA’s authority to require non-discharging CAFOs to report, but they said

that the proposed rule fell short of what is required of EPA under the 2009 settlement agreement

that forced the reporting rule.

In July 2012, after reviewing public comments, EPA decided not to promulgate a regulation.

Based on comments and responses, especially from states, EPA concluded that it can obtain much

of the desired CAFO information from federal agencies, states, and other existing data sources. It

would be more reasonable and efficient to obtain existing information from these sources, EPA

said, before determining whether to issue a rule requiring CAFOs to submit information. The

agency noted that the 2010 settlement agreement with environmental groups committed EPA to

proposing a rule, but did not commit it to any particular final action.50

The challenge to the 2008 CAFO rule by agricultural industry groups continued, even after EPA’s

settlement with environmental plaintiffs. In 2011, a federal court issued a ruling that supported

industry’s challenge on several issues. The court upheld the portion of the rule requiring a CAFO

to apply for a permit if the facility has an actual discharge. However, the court vacated aspects of

the rule requiring permits for proposed discharges (permits are still required for CAFOs that

actually discharge) and allowing EPA to take enforcement action against CAFO owners based on

their failure to apply for permits.51 In July 2012, EPA modified the 2008 CAFO regulations to

conform to the court’s 2011 ruling.

U.S. Environmental Protection Agency, Implementation Guidance on CAFO Regulations - CAFOS That Discharge

or Are Proposing to Discharge, EPA-833-R-10-006, May 27, 2010, http://www.epa.gov/npdes/pubs/

cafo_implementation_guidance.pdf.

U.S. Environmental Protection Agency, “National Pollutant Discharge Elimination System (NPDES) Concentrated

Animal Feeding Operation (CAFO) Reporting Rule; Proposed rule,” 76 Federal Register 65431-65458, October 21,

2011.

U.S. Environmental Protection Agency, “National Pollutant Discharge Elimination System (NPDES) Concentrated

Animal Feeding Operation (CAFO) Reporting Rule; Proposed Rule; Withdrawal,” 77 Federal Register 42679-42682,

July 20, 2012.

National Pork Producers Council v. U.S. EPA, 635 F.3d 738 (5th Cir. 2011).

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Environmental Regulation and Agriculture

Issues

The rest of the 2008 rule was not affected by the court’s March 2011 ruling and remains in effect.

The federal government did not seek a rehearing on the Fifth Circuit’s ruling, nor did it petition

the Supreme Court for a review. EPA concluded that the court’s ruling effectively simplifies

permitting by removing uncertainty about the “duty to apply” for a permit and thus is largely selfimplementing. The agency has conducted outreach to states on the effect of the ruling and is in

the process of revising the guidance that it issued in May 2010 concerning CAFOs that discharge

or propose to discharge, in view of the ruling.

A number of questions linger about implementation of the 2008 rule. For example, agricultural

industry groups are concerned that EPA regions may be providing differing interpretations of a

provision of the 2008 rule that allows farms to self-certify that they will not discharge, a finding

that allows them to avoid having to apply for a permit and protects CAFOs from liability for not

having a permit in the event of an accidental discharge. Some agricultural industry groups also

are concerned that EPA could initiate a new rulemaking that would include additional permit and

pathogen control requirements.

Separate from the 2008 CAFO rule that applies nationally, EPA is developing new CWA

requirements for CAFOs located in the Chesapeake Bay watershed (see “Chesapeake Bay

Protection and Restoration,” below), which could expand the universe of regulated CAFOs in that

region and require more stringent standards for permits. Many in the agriculture sector were

concerned that these Chesapeake Bay-specific rules would be the basis for EPA to propose a

revision of the broader 2008 rule. In fact, under the 2010 settlement agreement with

environmental groups, EPA had agreed to propose changes to the national rule, but in June 2013,

EPA and the environmental parties modified the 2010 agreement. Under the modification, EPA

will decide by June 2018 whether a national rulemaking is needed.

CRS Contact

(name redacted), Specialist in Resources and Environmental Policy, 7-....,

[redacted]@crs.loc.gov.

Chesapeake Bay Protection and Restoration

Despite several decades of activity by governments, the private sector, and the general public,

efforts to improve and protect the Chesapeake Bay watershed have been insufficient to meet

restoration goals. Although some specific indicators of Bay health have improved slightly or

remained steady (such as blue crabs and underwater bay grasses), others remain at low levels of

improvement, especially water quality. Overall, the Bay and its tributaries remain in poor health,

with polluted water, reduced populations of fish and shellfish, and degraded habitat and

resources. The primary pollutants causing impairments are nutrients (nitrogen and phosphorus)

and sediment discharged from multiple urban, suburban, and rural sources around the Bay.

In May 2009, President Obama issued an executive order that declared the Bay a “national

treasure” and charged the federal government with assuming a strong leadership role in restoring

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Environmental Regulation and Agriculture

the Bay.52 The executive order established a Federal Leadership Committee for the Chesapeake

Bay to develop and implement a new strategy for protecting and restoring the Chesapeake region.

The resulting strategy, which was released in May 2010, launched major specific environmental

initiatives to establish new clean water regulations on stormwater discharges and pollution

discharges from animal feedlots in the Bay watershed, put new agricultural conservation practices

on farms in the region, and restore land and water habitat.53

According to EPA, agriculture represents the single largest source of nutrient and sediment

pollution to the Bay, with about half of agriculture’s pollutant load directly related to livestock

waste. Agriculture covers about 25% of the Bay watershed, and is the largest intensively managed

land use in the watershed. EPA believes that excess livestock waste, improperly applied

fertilizers, and certain cropland tillage practices increase nutrient and sediment discharges to the

Bay.

A central feature of the overall strategy for restoring the Bay is EPA’s establishment of a total

maximum daily load (TMDL). Section 303 of the CWA requires states to identify waters that are

impaired by pollution, even after application of pollution controls. For those waters, states must

establish a TMDL to ensure that water quality standards can be attained. A TMDL is essentially a

pollution budget, a quantitative estimate of what it takes to achieve standards, setting the

maximum amount of pollution that a waterbody can receive without violating standards. If a state

fails to do this, EPA is required by the CWA to make its own TMDL determination for the state.

Throughout the United States—including the Chesapeake Bay watershed—more than 20,000

waterways are known to be violating applicable water quality standards and to require a TMDL.54

Lawsuits have been brought with the intention of pressuring EPA and states to develop TMDLs,

including for the Chesapeake Bay because the waters of the Bay have been identified as being

impaired, that is, as not meeting applicable water quality standards. The Chesapeake Bay TMDL

is the largest single TMDL developed to date. It addresses all segments of the Bay and its tidal

tributaries that are impaired from discharges of nitrogen, phosphorus, and sediment. The goal is to

have TMDL implementation measures in place by 2025 to assure attainment and maintenance of

all applicable water quality standards. The TMDL allocates needed reductions of these pollutants

to all jurisdictions in the 64,000 square mile watershed, not to individual segments of streams or

waterbodies, as is more typical of other TMDLs prepared by states or EPA.55

As part of the TMDL development process, states are to prepare Watershed Implementation Plans

(WIPs) identifying specific reductions and control measures to achieve needed pollutant

reductions from point sources (i.e., industrial and municipal facilities and CAFOs) and nonpoint

sources (i.e., farms and forests), as well as two-year milestones to implement the plans. EPA fully

expects that states will meet commitments and milestones in the WIPs, but the agency also has

identified a number of potential actions currently available to it if a state fails to do so, including

expanding permit coverage to currently unregulated sources (which could include additional

CAFOs in the Chesapeake Bay watershed), requiring net improvement offsets, conditioning EPA

grants, or increasing federal enforcement in the watershed.

Executive Order 13508, “Chesapeake Bay Protection and Restoration,” 74 Federal Register 23099-23104, May 15,

2009.

For information, see http://www.chesapeakebay.net/news_federalstrategy.aspx?menuitem=51207.

For background information, see CRS Report R42752, Clean Water Act and Pollutant Total Maximum Daily Loads

(TMDLs).

For information on the TMDL, see http://www.epa.gov/chesapeakebaytmdl/.

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Environmental Regulation and Agriculture

Status

Under a consent decree resolving some of the litigation over the Chesapeake Bay,56 EPA was

required to establish a TMDL no later than May 1, 2011. EPA issued the TMDL on December 29,

2010—ahead of its self-imposed December 31 deadline.57

Concurrent with issuance of the TMDL, the Bay watershed jurisdictions (Virginia, Maryland,

West Virginia, Delaware, Pennsylvania, and the District of Columbia) prepared Phase I WIPs,

which outlined the types of controls and best management practices (BMPs) that will be utilized

to achieve the first major goal of the TMDL: that 60% of needed practices to achieve water

quality standards will be in place by 2017. The jurisdictions have now developed Phase II WIPs,

in which they describe how they will work with specific localities within their borders over the

next five years to reduce nitrogen, phosphorus, and sediment loading into streams, lakes, and

rivers that feed into the Bay.

The Bay region exceeded its overall nutrient and sediment reduction goals for 2012-2013,

according to data submitted by states to EPA in March 2014. From 2009 through 2013, states

reduced the amount of nitrogen reaching Chesapeake Bay by 17 million pounds—4 million

pounds more than they had committed to. Phosphorus reductions were also ahead of schedule.

However, according to the data, reductions from agriculture and stormwater—two sectors where

controls have long proven problematic—are not on a trajectory that would meet either a 2017

interim cleanup goal or the overall Bay goals for 2025, suggesting that control measures for these

sectors will need to be accelerated.

In the same consent decree that led to issuance of the Bay TMDL, EPA also agreed to revise CWA

permit rules for CAFOs located in the Chesapeake Bay watershed (see “Implementation of

Existing Clean Water Act Permit Requirements for CAFOs,” above). As part of the settlement,

EPA agreed to propose Bay-specific rules to expand the universe of regulated CAFOs, including

but not limited to designating an AFO as a CAFO or increasing the number of animal operations

that would qualify as CAFOs and thus require CWA permits. The settlement also stipulates that

EPA would propose more stringent permitting requirements for land application of manure, litter,

and process wastewater in the Bay watershed in 2013, with rules to be final by mid-2014.

However, in June 2013, EPA and the environmental groups announced a revised agreement.

Under the modification, EPA will review compliance with existing CWA permits for CAFOs in

the Chesapeake Bay watershed, assess state permitting programs for such operations, and inspect

smaller, unregulated animal feedlots in the Bay watershed. On the basis of these reviews, EPA

will decide by June 30, 2018, whether a national rulemaking is needed. As described above, under

the earlier settlement agreement, EPA was to propose revisions to the 2008 national CAFO rules,

but under the 2013 modification, EPA will first focus on pollution from CAFOs in the

Chesapeake Bay region.

Fowler v. U.S. EPA, Case No. 1:09-CV-00005-CKK (D.D.C.), May 10, 2010.

Notice of the TMDL appeared in the Federal Register January 5, 2011. U.S. Environmental Protection Agency,

“Clean Water Act Section 303(d): Notice for the Establishment of the Total Maximum Daily Load (TMDL) for the

Chesapeake Bay,” 76 Federal Register 549-550, January 5, 2011.

Congressional Research Service

Environmental Regulation and Agriculture

Issues

EPA’s TMDL plans and the overall federal Bay restoration strategy under the 2009 executive

order are controversial with agricultural and other groups that are concerned about the likely

mandatory nature of many of EPA’s and states’ upcoming actions. Agricultural interests are

concerned that farm operations in the Bay watershed will be subject to more regulation than

competitors in other states, putting their operations at a significant competitive disadvantage.

Many of these groups have also been concerned that the underlying scientific data and modeling

used by EPA to develop the TMDL do not fully reflect ongoing voluntary efforts by agriculture to

reduce pollutant discharges. Legal challenges to the TMDL were brought by the American Farm

Bureau Federation and home builder groups, who argue that, in setting pollution limits in the

multistate plan, EPA has exceeded its CWA authority. In September 2013, a federal court upheld

the TMDL. The court said that it found no evidence that EPA had intruded on states’ rights in

writing the plan.58 That ruling has been appealed. On the other hand, environmental activists in

particular are pleased that the federal government is now asserting a leadership role to restore the

Bay and have supported legislation that would codify requirements for the Bay TMDL in the

CWA, while authorizing grants and other assistance for implementing required measures.

Companion bills to do so were introduced in the 111th Congress, while the House Agriculture

Committee approved separate legislation (H.R. 5509) that would have authorized an expanded

role for USDA in Bay restoration.

The 112th Congress showed interest in early implementation of the TMDL, especially impacts on

agriculture. The House Agriculture Subcommittee on Conservation, Energy, and Forestry held

oversight hearings on March 16 and November 3, 2011. Legislation (H.R. 4153, similar to H.R.

5509 in the 111th Congress) was introduced that would give states, not EPA, authority to set

nutrient and sediment limits for the Bay and would increase USDA’s role in Bay restoration. No

legislation was enacted, and similar legislation has not been introduced in the 113th Congress.

CRS Contact

(name redacted), Specialist in Resources and Environmental Policy, 7-....,

[redacted]@crs.loc.gov.

Florida Nutrient Water Quality Standards

The CWA directs states to adopt water quality standards for their waters and authorizes EPA to

promulgate new or revised standards if a state’s actions fail to meet CWA requirements. Water

quality standards consist of designated uses, criteria to protect the designated uses, and an

antidegradation statement. They serve as the framework for pollution control measures that are

specified for individual sources by states.

Because of severe water quality impairment of Florida waters by nutrients (nitrogen and

phosphorus) from diverse sources, including agriculture and livestock, municipal and industrial

wastewater discharges, and urban stormwater runoff, EPA determined in 2009 that Florida’s

existing narrative water quality standards for nutrients must be revised in the form of numeric

criteria that will enable Florida to better control nutrient pollution. In 2009 EPA entered into a

American Farm Bureau Federation v. EPA, M.D. Pa., No. 11-00067, 43 ELR 20213, Sept. 13, 2013.

Congressional Research Service

Environmental Regulation and Agriculture

consent decree with environmental litigants requiring the agency to promulgate numeric nutrient

water quality standards for Florida. To meet the legal deadline, EPA issued the first phase of these

standards on November 15, 2010, establishing standards for lakes and flowing waters in the state.

The EPA rule did not establish any requirements directly applicable to regulated entities or other

sources of nutrient pollution. Water quality standards do not have the force of law until the state

translates them into permit limits or otherwise imposes pollution control requirements on

dischargers in the state.59

Status

EPA said all along that it prefers that Florida implement its own numeric nutrient water quality

criteria. Consequently, EPA delayed the effective date of the 2010 rule several times to allow the

state to complete its process and to avoid confusion that could occur if federal criteria became

effective while state criteria are being reviewed. Further, EPA’s deadline for issuing the second

phase of standards (for estuaries, coastal waters, and flowing waters in the South Florida Region)

also was extended several times to allow the state to develop its own standards.

In March 2013, EPA and the state reached agreement on steps to put the state in charge of

determining numeric limits on nutrient pollution in Florida waterways. Groundwork for the

agreement was laid in November 2012 when EPA approved a June 2012 submission by the state

for lakes, rivers, streams, and some estuaries. Under the March agreement, Florida pledged to

move forward with rulemaking and legislation to complete the job of setting numeric nutrient

criteria for Florida waterways. The proposed state legislation would require completion of

nutrient criteria rulemaking for remaining coastal and estuarine waters by December 1, 2014, and

establishment of interim nutrient standards until then. In response to the state’s actions, EPA

approved the state’s implementation plan for controlling nutrient pollution in Florida waters and

petitioned the federal court in Florida to allow it to approve the state’s water quality standards,

although they lack numeric criteria for all waters. In January 2014, the court agreed to amend the

2009 consent decree in light of the adoption of new nutrient criteria, thus lifting the requirement

for EPA to issue numeric nutrient standards under the second phase of rulemaking, and in April

EPA proposed to withdraw its numeric nutrient criteria for Florida waters.

Industry groups endorsed the agreement and the court’s modification of the consent decree.

However, it was criticized by environmental advocacy groups, who said that the plan lacks many

elements that EPA previously said were essential and fails to cover large portions of the state’s

waters by, for example, exempting tidal waters, marine lakes, and flowing waters in the southern

portion of the state, unless they are being used for “frequent recreation.” Environmental groups’

legal challenge to the plan was rejected by the court’s January 2014 ruling, but the groups have

appealed the ruling.

Issues

While few dispute the need to reduce nutrients in Florida’s waters, EPA’s rule has been

controversial, involving disputes about the data underlying the proposal, potential costs of

complying with numeric standards when they are incorporated into discharge permit limitations,

U.S. Environmental Protection Agency, “Water Quality Standards for the State of Florida’s Lakes and Flowing

Waters; Final Rule,” 75 Federal Register 75762-75807, December 5, 2010.

Congressional Research Service

Environmental Regulation and Agriculture

and disputes over administrative flexibility. Agricultural groups and others fear that numeric

standards will result in mandates for costly pollution controls. EPA responds that adoption of

numeric nutrient standards is intended to ensure the health of Florida’s waterways and its

economy, because the types of water quality problems associated with nutrients—algae blooms

that are toxic to humans, fish, and animals—have economic impacts throughout the state.

Some groups also fear that EPA’s actions in Florida, which represented the first time that EPA has

established statewide numeric nutrient standards, and even though now apparently resolved, will

be a precedent for similar regulatory action elsewhere. For example, environmental advocacy

groups have petitioned or filed lawsuits seeking to require EPA to establish numeric nutrient

water quality standards in Kansas and for the Mississippi River Basin.60 In testimony before the

House Agriculture Committee, the EPA Administrator stated that EPA is not working on any

federal numeric nutrient limits, and the agency has developed guidance for its regional offices

stating that addressing nutrient pollution is a problem best handled by states through a variety of

tools.61

These issues also have drawn Congress’s attention. In 2011, oversight hearings were held by

subcommittees of the House Energy and Commerce and Transportation and Infrastructure

committees. A bill in the 113th Congress (H.R. 1948) would restrict EPA’s oversight of state

water quality standards by allowing the agency to promulgate a water quality standard for a state

only if EPA has previously approved the state’s standard and the state concurs that a new or

revised standard is necessary. Similar legislation passed the House in the 112th Congress. Even

with EPA’s approval of Florida’s rules, controversies persist.

CRS Contact

(name redacted), Specialist in Resources and Environmental Policy, 7-....,

[redacted]@crs.loc.gov.

Defining “Waters of the United States”

How best to protect the nation’s remaining wetlands and regulate activities taking place in or

affecting wetlands has become one of the most contentious environmental policy issues. Much of

the debate has focused on the CWA, which contains a key wetlands regulatory tool, Section 404,

which requires landowners or developers to obtain permits for disposal of dredged or fill material

that is generated by construction or similar activity into navigable waters of the United States,

including wetlands. A key issue since Section 404 was enacted in 1972 is which waters are

determined to be “waters of the United States” for CWA purposes and thus are subject to Section

404 and all of the CWA’s other requirements. In 2001 and 2006, the Supreme Court issued rulings

in two cases that interpreted the regulatory scope of the CWA more narrowly than previously, but

created uncertainty about the precise effect of the Court’s decisions.

In 2011, EPA denied the petition requesting that EPA promulgate national numeric nutrient criteria for the United

States or, alternatively, for waters of the Mississippi-Atchafalaya River Basin and northern Gulf of Mexico, saying,

“We do not believe that the comprehensive use of federal rulemaking authority is the most effective or practical means

of addressing these concerns at this time.” Environmental groups have filed a lawsuit seeking to force EPA to issue

numeric nutrient criteria, as they sought in the earlier petition.

“EPA Nutrient Reduction Framework Urges States to Develop Plan, Schedule for Criteria,” Daily Environment

Report, March 17, 2011, p. A-16.

Congressional Research Service

Environmental Regulation and Agriculture

The George W. Bush and Obama administrations both attempted to lessen confusion over the

Court’s rulings for the regulated community, regulators, and the general public by issuing

guidance documents to identify, in light of the Court’s rulings, categories of waters that are

jurisdictional, categories that are not jurisdictional, and categories that require a case-specific

analysis to determine if CWA jurisdiction applies. But the non-binding guidance documents did

not resolve all questions. In an effort to do so, in March 2014, EPA and the Army Corps of

Engineers (Corps) jointly proposed a rule defining the scope of waters protected under the

CWA.62 The proposed rule would revise regulations that have been in place for more than 25

years. It is particularly focused on clarifying the regulatory status of waters located in isolated

places in a landscape, as well as small streams, rivers that flow for part of the years, and nearby

wetlands—the types of waters affected by the Supreme Court’s 2001 and 2006 rulings. In

developing the proposed rule, EPA and the Corps relied on a draft synthesis of more than 1,000

published and peer-reviewed scientific reports. EPA has asked its Science Advisory Board (SAB)

to review the draft synthesis, and the agencies will not issue a final rule before the SAB

completes its work.

The agencies believe that, while the proposed rule would enlarge CWA jurisdiction beyond that

under existing EPA-Corps guidance, which the agencies believe was narrower than is justified by

science and the law, they contend that it would not enlarge jurisdiction beyond what is consistent

with the Supreme Court’s narrow reading of jurisdiction.

In 1977, Congress amended the CWA to exempt normal farming, ranching, and silviculture

activities from Section 404. The act also exempts agricultural stormwater discharges and return

flows from irrigated agriculture from Section 404 and other permit requirements of the law.

Further, prior converted cropland is excluded from the definition of “waters of the United States”

by rule. All of these exemptions and exclusions are self-implementing. Nothing in the 2014

proposed rule changes the existing statutory and regulatory exemptions. In addition, simultaneous

with proposing the rule, EPA and the Corps issued an interpretive rule that identifies 56

conservation practices approved by the U.S. Department of Agriculture that additionally qualify

for exemption under the Section 404 exclusion of “normal farming” activities. Through this

interpretive rule, the agencies intend to resolve uncertainties about “normal farming” activities

that are exempt from permitting when these conservation practices are used. In other words,

effective immediately, producers who utilize any of the 56 identified practices according to

USDA technical standards need not seek a determination of CWA jurisdiction and need not seek a

CWA permit. The three agencies also have signed a Memorandum of Understanding detailing

implementation of the interpretive rule and identifying a process for reviewing and updating the

list of qualifying conservation practices.63

Status

The Corps and EPA are accepting public comment on the proposed rule until October 20, 2014.64

Although the EPA-Corps interpretive rule on agricultural conservation practices took effect on

Department of Defense, Department of the Army, Corps of Engineers, and Environmental Protection Agency,

“Definition of ‘Waters of the United States’ Under the Clean Water Act, Proposed Rule,” 79 Federal Register

22188022274, April 21, 2014.

For additional information, see CRS Report R43455, EPA and the Army Corps’ Proposed Rule to Define “Waters of

the United States”, by (name redacted).

U.S. Environmental Protection Agency, Clean Water Act Definition of “Waters of the U.S.”, http://water.epa.gov/

(continued...)

Congressional Research Service

Environmental Regulation and Agriculture

March 25, the agencies are accepting public comment until July 7, 2014.65 The EPA Administrator

stated at a congressional hearing that it generally takes about one year to finalize a rule. Complex

and controversial rules can take much longer from proposal to promulgation. Once a rule is

finalized, legal challenges are likely, possibly delaying implementation of any rule for years.

Issues

The agriculture sector has been vigorous in criticizing and challenging EPA regulatory actions

that may affect the sector’s operations, making potential impacts of the proposed rule on

agriculture a focus of controversy—although the rule’s potential impacts are not limited to

agriculture. One of the sector’s concerns about a new “waters of the United States” rule has been

whether it would modify existing statutory and regulatory exemptions that exclude certain

discharges resulting from agricultural activities from CWA permitting. As described above, the

proposed rule makes no change and does not affect or alter these exemptions. The interpretive

rule was intended to clarify the types of agricultural conservation practices that are exempt from

Section 404, but some in agriculture contend that it has created confusion and uncertainty.

CRS Contact

(name redacted), Specialist in Resources and Environmental Policy, 7-....,

[redacted]@crs.loc.gov.

Spill Prevention, Control, and Countermeasure (SPCC) Plans

The CWA mandated regulations to prevent the discharge of oil from various sources.66 Pursuant

to this statutory requirement,67 EPA crafted regulations for non-transportation-related facilities in

1973. Affected facilities must prepare and implement, but not submit,68 spill prevention control

and countermeasure (SPCC) plans.69 The EPA SPCC plan requirements apply to nontransportation-related facilities that drill, produce, store, process, refine, transfer, distribute, use,

or consume oil or oil products;70 and that could reasonably be expected to discharge oil to U.S.

navigable waters or adjoining shorelines.71 Facilities, including farms,72 are subject to the rule if

(...continued)

lawsregs/guidance/wetlands/CWAwaters.cfm.

Department of Defense, Department of the Army, Corps of Engineers, and Environmental Protection Agency,

“Notice of Availability Regarding the Exemption From Permitting Under Section 404(f)(1)(A) of the Clean Water Act

to Certain Agricultural Conservation Practices,” 79 Federal Register 22276, April 21, 2014. Comment period extension

may be found here: http://water.epa.gov/lawsregs/guidance/wetlands/CWAwaters.cfm.

Section 311(j)(1) of CWA.

And in accordance with Executive Order 11735 (August 3, 1973), granting EPA the authority to regulate nontransportation-related onshore and offshore facilities.

A subset of high-risk facilities must submit Facility Response Plans to EPA (40 CFR §112.20)

U.S. Environmental Protection Agency, “Oil Pollution Prevention: Non-Transportation Related Onshore and

Offshore Facilities,” Federal Register, vol. 38, no. 237 (December 11, 1973), pp. 34164-34170.

Per EPA SPCC regulations, “oil,” means oil of any kind or in any form, including, but not limited to: petroleum; fuel

oil; sludge; oil refuse; oil mixed with wastes other than dredged spoil; fats, oils or greases of animal, fish, or marine

mammal origin; vegetable oils, including oil from seeds, nuts, fruits, or kernels; and other oils and greases, including

synthetic oils and mineral oils (40 C.F.R. §112.2).

Some of the definitions for the terms used to determine SPCC applicability may be subject to interpretation. For

(continued...)

Congressional Research Service

Environmental Regulation and Agriculture

they meet at least one of the following capacity thresholds: an aboveground aggregate oil storage

capacity greater than 1,320 U.S. gallons,73 or a completely buried oil storage capacity greater than

42,000 U.S. gallons.

Among other obligations, SPCC regulations require secondary containment (e.g., dikes or berms)

for certain oil-storage units; and plans must be certified by a professional engineer unless a

facility owner/operator is able to self-certify the plan.

Status

Following the passage of the Oil Pollution Act of 1990,74 EPA proposed changes and

clarifications to the SPCC regulations that were made final in July 2002.75 EPA has both extended

the 2002 rule’s compliance date (on multiple occasions) and made further amendments to the

2002 rule.76 For most types of facilities subject to SPCC requirements, the deadline for complying

with the changes made in 2002 was November 10, 2011.77 However, EPA extended the

compliance date for farms78 to May 10, 2013.79 On March 26, 2013, Congress enacted P.L. 1136, which prohibited EPA from using appropriations to enforce SPCC provisions at farms for 180

days after enactment (i.e., through September 22, 2013).

Note that the July 2002 final rule and subsequent amendments did not alter the requirement for

owners or operators of facilities, including farms, to maintain and to continue implementing their

SPCC plans in accordance with the SPCC regulations in effect before the 2002 rulemaking.

Issues

Many of the recent SPCC issues have involved program scope and applicability: which facilities,

materials, and equipment should be subject to SPCC requirements. These issues have garnered

considerable attention in the 113th Congress,80 ultimately resulting in enacted legislation that

alters the applicability for farms subject to the SPCC regulations.

(...continued)

example, the definition of “navigable waters” has been a subject of debate and litigation in recent years. See CRS

Report RL33263, The Wetlands Coverage of the Clean Water Act (CWA): Rapanos and Beyond.

Although the definition of facility does not specifically mention farms, farms are explicitly defined as “a facility on a

tract of land devoted to the production of crops or raising of animals, including fish, which produced and sold, or

normally would have produced and sold, $1,000 or more of agricultural products during a year.” See 40 C.F.R. §112.2.

Only counting containers greater than 55 gallons. 40 C.F.R. §112.1(d).

P.L. 101-380; 33 U.S.C. §2701 et seq.

U.S. Environmental Protection Agency, “Oil Pollution Prevention and Response; Non-Transportation-Related

Onshore and Offshore Facilities: Final Rule,” 67 Federal Register 47041, July 17, 2002.

These actions were, at least in part, related to legal challenges that followed the 2002 final rule.

U.S. Environmental Protection Agency, “Oil Pollution Prevention; Spill Prevention, Control, and Countermeasure

Rule Compliance Date Amendment,” 75 Federal Register 63093, October 14, 2010.

Defined as “a facility on a tract of land devoted to the production of crops or raising of animals, including fish, which

produced and sold, or normally would have produced and sold, $1,000 or more of agricultural products during a year”

(40 CFR §112.2).

U.S. Environmental Protection Agency, “Oil Pollution Prevention: Spill Prevention, Control, and Countermeasure

Rule—Compliance Date Amendment for Farms,” 76 Federal Register 72120, November 22, 2011.

For further details, see CRS Report R43306, Spill Prevention, Control, and Countermeasure (SPCC) Regulations:

(continued...)

Congressional Research Service

Environmental Regulation and Agriculture

On June 10, 2014, the President signed the Water Resources Reform and Development Act

(WRDA) of 2014 (P.L. 113-121). Section 1048 of the act alters the applicability of the SPCC.

Selected changes include the following:

•

Farms with an aggregate aboveground storage capacity less than 2,500 gallons

are not subject to SPCC regulations;

•

Farms with an aggregate aboveground storage capacity less than 6,000 gallons

(or a to-be-determined lower threshold) and no reportable discharge history are

not subject to SPCC regulations;

•

Farms with an aggregate aboveground storage capacity less than 20,000 gallons

(the prior threshold was 10,000 gallons), no individual storage tank greater than

10,000 gallons, and no reportable discharge history may self-certify their SPCC

plan, in lieu of hiring a professional engineer for certification.

In addition, several recent rulemakings included provisions that may benefit farming operations.

•

In an April 2011 final rule,81 EPA exempted all milk and milk product containers

and associated piping from the SPCC requirements.82 EPA’s rationale for the

exemption is that these units are subject to industry standards for sanitation and

construction and may be regulated by other agencies, including the USDA. In

addition, the final rule states that exempted milk storage units are not included in

a facility’s overall oil storage volume, a primary factor for SPCC applicability.

•

In a November 2009 final rule,83 EPA exempted pesticide application equipment

and related mix containers that may currently be subject to the SPCC rule when

crop oil or adjuvant oil are added to formulations. EPA also clarifies that a nurse

tank is considered a mobile refueler, and, like other types of mobile refuelers, is

exempt from the sized secondary containment requirements. EPA estimated that

the total cost savings to farm owners and operators from these (and other)

amendments amount to $13 million on an annualized basis (2007$).84

(...continued)

Background and Legislation in the 113th Congress, Spill Prevention, Control, and Countermeasure (SPCC)

Regulations: Background and Legislation in the 113th Congress, by (name redacted).

U.S. Environmental Protection Agency, “Oil Pollution Prevention; Spill Prevention, Control, and Countermeasure

(SPCC) Rule—Amendments for Milk and Milk Product Containers,” 76 Federal Register 21652, April 18, 2011.

Pursuant to the CWA definition of oil, the SPCC requirements apply to petroleum-based and non-petroleum-based

oil (CWA §311(a); 33 U.S.C. 1321(a)). In a 1975 Federal Register notice, EPA clarified that its 1973 SPCC

regulations apply to oils from animal and vegetable sources (U.S. Environmental Protection Agency, “`Oil Pollution

Prevention, Applicability of 40 CFR part 112 to Non-Petroleum Oils; Notice,” 40 Federal Register 28849, July 9,

1975). EPA subsequently stated that “milk typically contains a percentage of animal fat, which is a non-petroleum oil”

and is thus subject to SPCC provisions (U.S. Environmental Protection Agency, “Oil Pollution Prevention; Spill

Prevention, Control, and Countermeasure Rule Requirements—Amendments,” 74 Federal Register 2461, January 15,

2009.

U.S. Environmental Protection Agency, “Oil Pollution Prevention; Spill Prevention, Control, and Countermeasure

(SPCC) Rule - Amendments,” 74 Federal Register 58784, November 13, 2009.

Ibid, p. 58805.

Congressional Research Service

Environmental Regulation and Agriculture

CRS Contact

Jonathan Ramseur, Specialist in Environmental Policy, 7-...., [redacted]@crs.loc.gov.

Energy

The agricultural industry is sensitive to fluctuations in energy sources and cost. The use of fossil

fuel-based fertilizers, diesel fuel, and, more recently, corn-based ethanol all have a significant

impact on both crop and livestock operations. Since the 1970s, federal policies have offered a

variety of incentives, regulations, and programs to encourage growth in the bioenergy industry as

a sustainable alternative to fossil fuels.85 The increased emphasis on agriculture-based biofuels

has received mixed reviews within the agricultural community.86 While some continue to push for

greater federal involvement, critics of the federal intervention also have emerged.

The following section covers several federal regulations relating to energy, including

•

renewable fuels standard (RFS2) rule; and

•

E15 waiver petition.

Renewable Fuels Standard (RFS2) Rule

The Energy Independence and Security Act of 2007 (P.L. 110-140; EISA) expanded the

renewable fuel standard (RFS) originally established in the Energy Policy Act of 2005 (P.L. 10958; EPAct05).87 The RFS requires that U.S. transportation fuel contain a minimum amount of

biofuel—this mandate then supports the domestic production and use of biofuels. The 2013 RFS

mandate was 16.55 billion gallons of biofuels (consisting mostly of ethanol produced from corn

starch), ramping up to 36 billion gallons in 2022 (consisting of approximately 60% of advanced

biofuels). EISA also requires that advanced biofuels (e.g., cellulosic biofuels, biomass-based

diesel, and others) and conventional biofuels from newly built refineries used to satisfy RFS

mandates meet certain lifecycle GHG reduction requirements.88 EPA is required to classify

biofuel production based on their lifecycle emissions, including emissions from direct and

indirect changes in land use. Only fuels that achieve a 50% reduction in GHG emissions relative

to petroleum fuels may be classified as advanced biofuels. Cellulosic biofuels must achieve at

least a 60% GHG emission reduction, while fuels from new corn ethanol plants must achieve a

20% GHG emission reduction—corn ethanol plants in existence or under construction when

EISA was enacted (December 19, 2007) are grandfathered.

For more information on agriculture-based biofuels, see CRS Report R41282, Agriculture-Based Biofuels: Overview

and Emerging Issues.

Examples of agriculture-based biofuels policy proponents include organizations who currently benefit directly from

policies, such as the National Corn Growers Association (corn-based ethanol) and American Soybean Association

(soybean-based biodiesel). Critics include organizations who rely on current biofuel sources for other non-fuel

purposes, such as the National Cattleman’s Beef Association and National Pork Producers Council.

See CRS Report R40155, Renewable Fuel Standard (RFS): Overview and Issues; or CRS Report R43325, The

Renewable Fuel Standard (RFS): In Brief .

See CRS Report R40460, Calculation of Lifecycle Greenhouse Gas Emissions for the Renewable Fuel Standard

(RFS).

Congressional Research Service

Environmental Regulation and Agriculture

Status

Under the Clean Air Act Section 211(o), as amended by EISA, EPA is required to set the annual

standards—or volume requirements—under the RFS each November for the following year based

on gasoline and diesel projections from the Energy Information Administration (EIA). EPA is also

required to set the cellulosic biofuel standard each year based on the volume projected to be

available during the following year, using EIA projections and assessments of production

capability from industry.

From 2010 to 2014, EPA analysis suggested that the United States did not have sufficient

cellulosic biofuel production capacity to meet the RFS mandates. As a result, EPA proposed

substantial reductions to the statutory RFS mandates for cellulosic biofuels for each of those

years.89 However, cellulosic biofuel production (and imports) failed to meet even the reduced

standards for 2010-2013 and participating fuel companies were obligated to purchase waiver

credits from the EPA in lieu of fulfilling their blending obligations. Then, in February 2013, under

remand from the U.S. Court of Appeals for the District of Columbia, EPA revised the 2012 RFS

for cellulosic biofuels to zero, and in November 2013, also revised the 2011 RFS for cellulosic

biofuels to zero. Also, in April 2014 EPA revised the 2013 cellulosic biofuel standard from 6

million ethanol-equivalent gallons to approximately 810,000 ethanol-equivalent gallons.90 In

addition to the difficulty of achieving the lowered cellulosic biofuels mandates, total renewable

fuel consumption (after achieving a 10% blending level in 2013) appears limited by blending and

distribution infrastructure—a phenomenon referred to as the blend wall.91 Also, significant

declines in national transportation fuel consumption since 2006 have contributed to the

difficulties in meeting biofuels RFS mandates. EPA is expected to announce a final 2014 RFS

mandate in June.92

Issues

The RFS has been a major policy supporting the development of U.S. biofuels industries,

especially for corn-based ethanol producers. Many believe that the expanded RFS will continue to

be a primary pillar of support for existing U.S. biodiesel production capacity (due to the

uneconomical nature of U.S. biodiesel production). In future years, as the advanced biofuel

mandates grow, the RFS could be the key driver for the development of biofuels from cellulose,

algae, and other non-food/feed commodities. However, unless substantial infrastructure issues

which limit consumers ability to use higher levels of ethanol are first overcome or greater

emphasis is placed on producing advanced biofuels that can be used with existing infrastructure,

the biofuels blending and consumption goals may be difficult to achieve and the RFS—if

imposed under such conditions—could have significant unintended economic consequences.

CRS Report R41106, Meeting the Renewable Fuel Standard (RFS) Mandate for Cellulosic Biofuels: Questions and

Answers.

U.S. Environmental Protection Agency, “Regulation of Fuels and Fuel Additives: 2013 Cellulosic Biofuel Standard,”

79 Federal Register, May 2, 2014.

The blend wall is the upper limit to the total amount of ethanol that can be blended into U.S. gasoline and still

maintain automobile performance and comply with the Clean Air Act.

“EPA Proposes 2014 Renewable Fuel Standards, 2015 Biomass-Based Diesel Volume” Office of Transportation and

Air Quality, EPA-420-F-13-048, November 2013.

Congressional Research Service

Environmental Regulation and Agriculture

Unintended Consequences of RFS Expansion

The initial biofuels expansion, which occurred during the 2006 to 2010 period when biofuels

usage was unobstructed by the blend wall, contributed to concomitant pressure on limited

agricultural resources (most notably land) as feedstock production intensified on existing

cropland and expanded onto new, marginal lands. This contributed to higher prices for those

commodities that compete for the affected cropland, as well as having important secondary

effects in related agricultural markets, including livestock feed markets and agricultural input

markets.

Corn is the primary feed ingredient used by the U.S. livestock sector (i.e., dairy, cattle, hogs, and

poultry), representing over 90% of all grains consumed, and about 57% of all grains and feed

concentrates consumed annually. As the price of corn rose, the entire feed complex price structure

rose as well, putting a cost squeeze on the U.S. livestock sector. A severe, widespread drought in

2012 further elevated concerns of ethanol-induced corn shortages. Under these conditions,

livestock and poultry producers joined the petroleum industry at the time in calling for the

modification or elimination of the RFS.

However, a return to normal weather and crop yields in 2013, coupled with the emergence of the

blend wall (see “E15 Waiver Petition” discussion, below) in late 2012 have largely reduced the

availability and cost of corn as an impediment to continued domestic ethanol consumption. Since

2010, both corn use for ethanol and ethanol production appear to have plateaued. Now, instead of

corn shortages and resource constraints, it appears that without important blending and

distribution infrastructure developments, corn ethanol consumption may be challenged to achieve

its ceiling set in the RFS of 15 billion gallons by 2015. As a result, its impact in other corn-user

markets has become negligible and is expected to diminish further in the coming years as corn

yields outpace biofuels consumption. These infrastructure constraints, coupled with fresh

memories of corn ethanol’s past impact in secondary markets, are likely to keep tremendous

pressure on policy makers to waive future RFS mandates.

Unachieved Cellulosic Biofuels Mandates

After four successive years (2010-2013) in which, first, EPA lowered the cellulosic biofuels

mandate, and then cellulosic biofuels production failed to achieve the lowered mandates, many

question whether the RFS mandates for cellulosic biofuels need to be drastically scaled back or

eliminated entirely. The cellulosic biofuels industry has argued that it would be able to produce

enough fuel to meet the RFS mandates if certain obstacles are overcome: lowering the cost of

conversion technology at the initial stages of commercial application, easing access to financing,

expediting government approval of cellulosic biofuel production pathways, developing

environmental regulations that are more complementary to the cellulosic biofuels industry,

removing feedstock supply uncertainties, and creating certainty for tax incentives. But with

limited commercial success to date and the blend wall standing as a major barrier to further rapid

expansion of biofuels consumption, there is considerable uncertainty about the future of the

cellulosic biofuels industry—even if the technological and commercial breakthroughs for

cellulosic biofuels were achieved.

Congressional Research Service

Environmental Regulation and Agriculture

CRS Contacts

(name redacted), Specialist in Agricultural Policy, 7-...., [redacted]@crs.loc.gov; (name redacted),

Specialist in Agricultural Conservation and Natural Resources Policy, 7-....,

[redacted]@crs.loc.gov; or Brent Yacobucci, Specialist in Energy and Environmental Policy, 7...., [redacted]@crs.loc.gov.

E15 Waiver Petition

By 2022, EISA requires the use of 36 billion gallons of renewable fuels, and much of this could

be ethanol from a variety of feedstocks (many of which are agricultural-based; see “Renewable

Fuels Standard (RFS2) Rule” discussion, above). However, there is an obstacle to the use of this

quantity of ethanol in gasoline. Currently, although some ethanol is sold as an alternative fuel

(E85), most is sold as an additive in conventional and reformulated gasoline. Until recently, the

amount of ethanol that could be blended into gasoline for all uses was limited to 10% by volume

(E10) pursuant to EPA guidance under the CAA, as well as by vehicle and engine warranties, and

certification procedures for fuel-dispensing equipment.

As the RFS is structured, assuming that most of the mandate is met using ethanol, the volume of

ethanol blended in gasoline is limited by gasoline consumption. In 2013, the RFS required over

16 billion gallons of renewable fuel, while projected gasoline consumption for 2013 was 134

billion gallons. After 2013, the renewable fuel mandate is scheduled to continue to increase.

However, a limit of 10% ethanol means that ethanol for gasoline blending (not including E85)

likely cannot exceed 14 billion-15 billion gallons per year.93 This “blend wall” is the maximum

possible volume of ethanol that can be blended into U.S. motor gasoline. The actual limit could

be slightly lower, since older fuel tanks and pumps at some retail stations may not be equipped to

handle ethanol-blended fuel.94 Because of the blend wall and other issues, EPA has proposed a

total RFS of 15.21 billion gallons for 2014––a level lower than both the 2014 level scheduled in

EISA and the actual amount required in 2013. What level EPA will finalize for 2014 and

subsequent years will determine whether there is impetus to roll out E15 on a wider scale.

Status

On March 6, 2009, Growth Energy (on behalf of 52 U.S. ethanol producers) applied to EPA for a

waiver from the CAA limitation on ethanol content in gasoline. Until recently, ethanol content in

gasoline for all uses was capped at 10% (E10); the application requested an increase in the

maximum concentration to 15% (E15). If fully granted, the waiver would allow the use of

significantly more ethanol in gasoline than is currently permitted.

On November 4, 2010, EPA granted a partial waiver allowing the use of E15 in MY2007 and

newer vehicles.95 The agency delayed a decision on MY2001-MY2006 vehicles until the

However, some of the mandate—in the range of 1 billion gallons—will be met with non-ethanol fuels, mainly

biodiesel and other biomass-based diesel fuels. Thus, the overall mandate can exceed the blend wall limit by some

amount.

For more information see CRS Report R40445, Intermediate-Level Blends of Ethanol in Gasoline, and the Ethanol

“Blend Wall”.

Environmental Protection Agency, “Partial Grant and Partial Denial of Clean Air Act Waiver Application Submitted

by Growth Energy to Increase the Allowable Ethanol Content of Gasoline to 15 Percent; Decision of the Administrator;

(continued...)

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Department of Energy completed testing of those vehicles. On January 21, 2011, EPA announced

that the waiver would be expanded to include MY2001-MY2006 vehicles.96 EPA determined that

data were insufficient to address concerns that had been raised over emissions from MY2000 and

older vehicles, as well as heavy-duty vehicles, motorcycles, and non-road applications (including

farm equipment), and thus a waiver for these vehicles/engines was denied. EPA has noted that

granting the waiver eliminates only one impediment to the use of E15—other factors, including

retail and blending infrastructure (including gasoline storage tanks and pumps), state and local

laws and regulations, and manufacturers’ warranties, would still need to be addressed. Because of

concerns over potential damage by E15 to equipment not designed for its use, this partial waiver

was challenged in court by a group of vehicle and engine manufacturers, among others,97

although the challenge was ultimately unsuccessful. In the 112th Congress, the House adopted an

amendment (H.Amdt. 156) to H.R. 1 that would have blocked EPA from using FY2011 funds to

implement the agency’s waiver decision, although the Senate bill did not contain that provision

and the bill was not enacted. In the 113th Congress, legislation has been proposed (H.R. 1462 ,

H.R. 1469, and S. 344) that would overturn EPA’s E15 decision and bar the agency from issuing

further waivers.

On March 15, 2012, EPA approved the model misfueling mitigation plan (MMP) submitted by

the Renewable Fuels Association (RFA) as step for companies to develop their own MMPs.98

Since then, companies have registered with EPA, and at least 78 retailers have begun selling

E15.99

Issues

EPA approval of the waiver request could help open the door to E15 blending. This could be a

strong signal to the biofuels industry concerning federal support for meeting and enforcing RFS

mandate levels. As a result, this could help to stimulate new investment in the biofuels sector. In

the short run, the corn ethanol industry would be the main beneficiary, since it is best able to

respond to the expanding RFS mandates. Any further increase in corn ethanol use would benefit

corn producers. The net result could be an intensification of agricultural resource use with the

same consequences discussed previously (see “Renewable Fuels Standard (RFS2) Rule”).

However, as noted above, because of the limited availability of E15 and for other reasons, EPA

has proposed a 2014 RFS mandate that is lower than both the 2014 level scheduled in the statute

(...continued)

Notice,” 75 Federal Register 68094-68150, November 4, 2010.

Environmental Protection Agency, “Partial Grant of Clean Air Act Waiver Application Submitted by Growth Energy

to Increase the Allowable Ethanol Content of Gasoline to 15 Percent; Decision of the Administrator,” signed January

21, 2011 (awaiting publication in the Federal Register).

The Alliance of Automobile Manufacturers (Alliance), the Association of International Automobile Manufacturers,

Inc. (AIAM), the National Marine Manufacturers Association (NMMA), and the Outdoor Power Equipment Institute

(OPEI). OPEI, Fact Sheet: E-15 Partial Waiver Legal Challenge, December 17, 2010. The case is Alliance of

Automobile Manufacturers et. al v. Environmental Protection Agency.

Renewable Fuels Association News Release, “Ethanol Industry, EPA Ready for E15 Rollout,” March 15, 2012;

available at http://www.ethanolrfa.org/news/entry/ethanol-industry-epa-ready-for-e15-rollout/.

Renewable Fuels Association New Release, “Lawrence Gas Station First in the Country to Offer E15 Fuel,” July 17,

2012; available at http://www.ethanolrfa.org/news/entry/lawrence-gas-station-first-in-the-country-to-offer-e15-fuel/.

Choose Ethanol, E15 Stations; available at http://www.chooseethanol.com/pages/e15-stations-by-state.

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Environmental Regulation and Agriculture

and the actual 2013 mandated level. Further reductions in the RFS mandates would likely hinder

a significant roll-out of E15.

The ability to address concerns over the use of E15 in legacy equipment (both infrastructure and

vehicles) will affect the rollout of E15 to retail stations. As noted above, EPA’s decision to allow

E15 in some vehicles only addresses one part of the blend wall. State laws and regulations,

vehicle and equipment certifications and warranties, and questions over fuel suppliers’

willingness to market the fuel could all be impediments to an expansion of E15 use. For example,

few automakers have updated their vehicle warranties to allow E15 in their newer vehicles, and

none have updated warranties to cover the use of E15 in existing (pre-2012) vehicles.

Equipment manufacturers, meat producers, gasoline suppliers, and others challenged the EPA E15

waiver decision in federal court. On August 20, 2012, the U.S. Court of Appeals for the D.C.

Circuit found (2-1) that the plaintiffs did not have standing to challenge EPA’s decision,100 and in

June 2013 the Supreme Court denied a petition from the plaintiffs to appeal the circuit court

decision.

CRS Contacts

Brent Yacobucci, Specialist in Energy and Environmental Policy, 7-....,

[redacted]@crs.loc.gov, or (name redacted), Sp ecialist in Agricultural Policy, 7-....,

[redacted]@crs.loc.gov.

Pesticides

Agricultural “pests,” which includes certain insects, plant pathogens, weeds, and vertebrates, can

interfere with the production of crops and livestock used for food and fiber. Pesticides are used in

agriculture to prevent, kill, repel or mitigate pests that might harm crop yields, but their use may

pose risks to human health and the environment. In order to prevent unreasonable risks from

pesticide use, pesticides are primarily regulated at the federal level by the Federal Insecticide,

Fungicide, and Rodenticide Act (FIFRA).101 FIFRA directs the Environmental Protection Agency

(EPA) to regulate the sale and use of pesticide products through registration (that is, licensing)

based on risk assessments.102 The federal regulation of pesticides also requires routine reevaluations of risks in order for any necessary restrictions to reflect the latest scientific

understanding. For more information about pesticide laws, see CRS Report RL31921, Pesticide

Law: A Summary of the Statutes.

The following section covers four selected issues concerning federal regulations relating to

pesticides, including

•

Clean Water Act permits for pesticide application;

100

Grocery Manufacturers Association, et al. v. EPA, D.C. Cir. No. 10-1380.

FIFRA is codified at 7 U.S.C. 136-136y.

102

Section 408 of the Federal Food, Drug, and Cosmetic Act (FFDCA, 21 U.S.C. 346a) is cross-referenced in FIFRA

and addresses setting permissible levels of pesticide residues on food as part of the process for considering whether to

101

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Environmental Regulation and Agriculture

•

pesticide spray drift;

•

atrazine; and

•

pesticide registration and the Endangered Species Act (ESA).

Clean Water Act Permits for Pesticide Application

For the more than 30 years since Congress enacted the Clean Water Act (CWA) and the Federal

Insecticide, Fungicide, and Rodenticide Act (FIFRA), little apparent direct conflict existed

between the two laws. EPA’s operating principle during that time was that pesticides used

according to the requirements of FIFRA do not require regulatory consideration under the CWA.

EPA had never required CWA permits for use of FIFRA-approved materials, and EPA rules did

not specifically address the issue.103

EPA’s interpretation and operating practice were challenged in several court cases. At issue has

been how FIFRA-approved pesticides that are sprayed over or into waters are regulated and,

specifically, whether the FIFRA regulatory regime is sufficient alone to ensure protection of water

quality or whether such pesticide application requires approval under a CWA permit. The issue

arose initially over challenges to some routine practices in the West (weed control in irrigation

ditches and spraying for silvicultural pest control on U.S. Forest Service lands). It drew more

attention in connection with efforts by public health officials to combat mosquito-borne illnesses

such as West Nile virus. The litigation created uncertainty over whether application of pesticides

and herbicides to waterbodies requires a CWA water discharge permit.

Status

EPA tried to promulgate policy to clarify the relationship of the two laws and to address conflicts

resulting from several judicial rulings, ultimately in a regulation issued in 2006 that attempted to

specify circumstances in which pesticides applied to U.S. waters do not require CWA permits.

That rule was challenged by multiple parties, and in January 2009, a federal appellate court

vacated the rule.104 As a result, persons who spray pesticides on or near water are now required to

obtain a CWA permit.

The federal court’s ruling appeared to leave little room for EPA to fashion a new rule consistent

with the agency’s long-standing view that FIFRA-compliant applications do not require CWA

permits. Industry groups subsequently petitioned the Supreme Court to review the case, but the

Court denied the petition.

To meet the court’s mandate, EPA issued a pesticide general permit, or PGP, on October 31,

2011.105 EPA estimates that the universe of affected activities that for the first time will be subject

to CWA permits is approximately 5.6 million applications annually, which are performed by

103

For more information on pesticide use and water quality, see CRS Report RL32884, Pesticide Use and Water

Quality: Are the Laws Complementary or in Conflict?.

104

National Cotton Council of America v. U.S. Environmental Protection Agency, 553 F.3d 927 (6th Cir. 2009).

105

U.S. Environmental Protection Agency, “Final National Pollutant Discharge Elimination System (NPDES) Pesticide

General Permit for Point Source Discharges From the Application of Pesticides; Notice of final permit,” 76 Federal

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Environmental Regulation and Agriculture

365,000 applicators covering four use patterns: (1) mosquito and other flying insect pest control;

(2) aquatic weed and algae control; (3) aquatic nuisance animal control; and (4) forest canopy

pest control. The permit covers about 500 different pesticide active ingredients that are contained

in approximately 3,700 product labels.

The permit applies to a variety of entities, including agricultural interests involved in crop and

timber tract production, forest nurseries, and operating irrigation systems; pesticide and

agricultural chemical manufacturing; mosquito or other vector control districts and commercial

applicators that service them; utilities (e.g., electric power, natural gas, water supply, and

wastewater); and government agencies and departments engaged in air and water resource

management and conservation. It requires all operators to minimize pesticide discharges to waters

by practices such as using the lowest effective amount of pesticide product that is optimal for

controlling the target pest. It also requires operators to prepare pesticide discharge management

plans to document their pest management practices. Permittees must monitor for observable

adverse effects in the treatment area and where the pesticides are discharged to U.S. waters. The

permit does not cover agricultural stormwater runoff or irrigation return flow, as these discharges

are statutorily exempt from CWA permitting, and it also does not cover terrestrial application to

control pests on agricultural crops or forest floors. Thus, because pesticide applications to land

that do not result in point source discharges of pesticides to U.S. waters do not require permit

coverage, EPA says that many farms are not affected by the court’s decision and do not need

CWA permits. The EPA general permit applies in states and areas where EPA is the National

Pollutant Discharge Elimination System (NPDES) permitting authority, but has been used as a

model for other states to develop their own general permits.106 General permits issued by the

other states must meet CWA guidelines and also may be more stringent than EPA’s requirements.

Most entities subject to the EPA general permit were automatically covered, while some pesticide

applicators with more significant discharges must submit a notice of intent (NOI) to be covered

by the PGP. For example, any federal or state agency that conducts pest management as an

integral part of its operation, and special-purpose districts with a specific responsibility to control

pests, must submit a NOI. The permit took effect in January 2012.

In an effort to halt EPA’s regulatory activity, the House passed legislation in the 112th Congress

(H.R. 872) intended to overturn the court’s 2009 ruling by exempting aerial pesticide application

activities from clean water permit requirements. Also in the 112th Congress, the text of H.R. 872

was included as a provision of the 2012 farm bill approved by the House Agriculture Committee,

but this bill was not enacted. In the 113th Congress, legislation to exempt certain authorized

pesticide uses from any permit requirements has been introduced again (S. 175, S. 802, H.R.

935). The text of H.R. 935 was introduced in the House-passed farm bill (H.R. 2642), but it was

not included in the enacted 2014 farm bill (P.L. 113-79).

Issues

General permits cover categories of point sources that have common elements and that discharge

the same types of wastes. They allow the permitting authority to allocate resources efficiently,

106

The CWA authorizes EPA to delegate NPDES permitting authority to qualified states, and EPA has done so for the

majority of states. For this permit, EPA will be the permitting authority in Massachusetts, New Mexico, Oklahoma,

Alaska, Idaho, and the District of Columbia and for certain tribal lands.

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especially when there is a large number of potential permittees. Permitting procedures are

streamlined and simplified, compared with CWA individual permits. Still, many agricultural

industry groups are fearful that the court’s ruling and EPA’s general permit will lead to more

burdensome and potentially costly requirements that affect their operation and activities.

CRS Contact

(name redacted), Specialist in Resources and Environmental Policy, 7-....,

[redacted]@crs.loc.gov.

Pesticide Spray Drift

Pesticide spray drift describes the movement of pesticide during or soon after its application

through the air. Such drift can potentially move away from the intended target to unintended

locations. Various stakeholders, including many in the agricultural community, have expressed

their concerns to states and EPA regarding potential risk associated with exposure to spray drift.107

These include potential risks to the health of applicators and by-standers, and potential effects on

non-target animals and plants.108 Many of these stakeholders remain cautious about the level and

extent of restrictions EPA may require to prevent unreasonable adverse effects from spray drift.

Pesticide spray drift has also been the subject of several citizen petitions and lawsuits filed

against EPA by environmental advocacy groups.109

When considering whether to register a pesticide under FIFRA, EPA currently incorporates an

assessment of the potential risks from spray drift as part of an overall risk assessment of a

pesticide. EPA may require an applicant of a pesticide registration to conduct specific tests if the

applicant proposes application methods that could potentially result in spray drift. Results from

these tests may be used by the agency in determining whether precautionary labeling or certain

other restrictions are needed as a condition for registration. Accordingly, EPA’s current regulation

of pesticide spray drift primarily affects pesticide manufacturers. Pesticide applicators may be

subject to enforcement by states or EPA if pesticides are not applied in accordance with label

restrictions.

107

U.S. Environmental Protection Agency, For Your Information: Spray Drift of Pesticides, December 1999, at

http://nepis.epa.gov/Exe/ZyPURL.cgi?Dockey=200002PC.txt.

108

As an example, spray drift from application of certain neonicotinoids may be one of the factors that affects the

health of particular pollinators. For more information on the role that pesticides may have on pollinator decline, see

CRS Report R42855, Bee Health: The Role of Pesticides, by (name redacted).

109

As an example, two environmental groups filed a citizen petition in 2007 requesting EPA to revoke all tolerances

and cancel all registration for the pesticide chlorpyrifos due in part to concerns of exposure to spray drift. The citizen

petition is available in a docket at http://www.regulations.gov/#!docketDetail;D=EPA-HQ-OPP-2007-1005.

Additionally, the two environmental groups filed a lawsuit in 2010 to compel EPA to respond to the 2007 petition. The

litigation led to a stipulation and order filed with a federal district court for EPA to conduct a preliminary human health

risk assessment for chlorpyrifos and to respond to the petition. The stipulation and order is available in the docket. In

2011, EPA completed a preliminary human health risk assessment for chlorpyrifos, which is available in a docket at

http://www.regulations.gov/#!docketDetail;D=EPA-HQ-OPP-2008-0850. In 2012 and 2013, EPA responded to the

2007 citizen petition. The responses are available in the docket containing the 2007 petition. Another example of a

citizen petition regarding exposures of children to spray drift is available at http://www.regulations.gov/

#!docketDetail;D=EPA-HQ-OPP-2009-0825.

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Environmental Regulation and Agriculture

EPA has taken several actions to address risks from spray drift. In 2009, EPA proposed guidance

for pesticide registration applicants and registrants to revise label statements intended to reduce

spray drift.110 This guidance was not formally adopted. EPA also initiated a voluntary Drift

Reduction Technology Program to encourage development and verification of new pesticide

application technologies that may reduce spray drift.111 EPA is currently evaluating a drift

reduction technology verification protocol, prior to its adoption for verifying the effectiveness of

various spray drift reduction technology.112 Additionally, EPA has worked with pesticide

applicators and the agricultural community to encourage the use of best management practices.113

Status

In January 2014, EPA proposed guidance regarding the agency’s process in evaluating risks from

pesticide spray drift as part of its overall process for conducting pesticide risk assessments.114 The

agency sought comments regarding refinements to models that are currently used by the agency

to estimate spray drift and indirect exposure of such drift to children.

Issues

Pesticide manufacturers and applicators are concerned that the proposed risk assessment

methodologies regarding spray drift may result in EPA requiring overly restrictive measures

regarding how and when certain pesticides are used.115 They contend that refinements to models

proposed by EPA do not take into account technological advances in pesticide application that

reduce spray drift. Conversely, environmental advocacy groups contend that EPA’s proposal

would not lead to sufficiently protective measures taken by the agency to ensure that off-target

spray drift is minimized. Potential impacts of spray drift from conventional agricultural

operations on neighboring organic farm operations have also been an area of some concern.116

CRS Contact

(name redacted), Analyst in Environmental Policy, 7-...., [redacted]@crs.loc.gov.

110

U.S. Environmental Protection Agency, Pesticide Spray and Dust Drift, May 2014, available at http://www.epa.gov/

pesticides/factsheets/spraydrift.htm.

111

A fact sheet and additional information about the Drift Reduction Technology Program is available at EPA’s

website: http://www.epa.gov/etv/este.html#pdrt.

112

U.S. Environmental Protection Agency, Evaluation of the Verification Protocol for Low and High Speed Wind

Tunnel Testing for Row and Field Crops, April 2012, at http://nepis.epa.gov/Adobe/PDF/P100FAAH.pdf.

113

See footnote 110.

114

U.S. Environmental Protection Agency, “Pesticides; Consideration of Spray Drift in Pesticide Risk Assessment:

Notice of Availability and Request for Comment,” 79 Federal Register 4691-4693, January 29, 2014.

115

As an example, see comments submitted April 30, 2014 by the National Agricultural Aviation Association in

response to U.S. Environmental Protection Agency, “Pesticides; Consideration of Spray Drift in Pesticide Risk

Assessment: Notice of Availability and Request for Comment,” 79 Federal Register 4691-4693, January 29, 2014.

Comments are available at http://www.regulations.gov/#!documentDetail;D=EPA-HQ-OPP-2013-0676-0042.

116

As an example, see comments submitted April 30, 2014 by Western Growers in response to U.S. Environmental

Protection Agency, “Pesticides; Consideration of Spray Drift in Pesticide Risk Assessment: Notice of Availability and

Request for Comment,” 79 Federal Register 4691-4693, January 29, 2014. Comments are available at

http://www.regulations.gov/#!documentDetail;D=EPA-HQ-OPP-2013-0676-0080.

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Atrazine

The herbicide atrazine is one of the most widely used agricultural pesticides in the United States

today.117 Widespread use of atrazine, reports of its presence and persistence in surface and

drinking water in nearby areas where the herbicide is applied, and scientific studies suggesting

that exposure to atrazine might disrupt the normal action of hormones in animals have prompted

EPA to review the herbicide extensively.118

EPA has conducted a number of risk assessments of atrazine during the past 20 years as new

information has become available to ensure that the existing registration still adequately prevents

“unreasonable adverse effects on the environment” under FIFRA. In 2006, EPA issued a reregistration eligibility decision for atrazine after the agency completed a cumulative exposure

assessment of atrazine and another triazine herbicide, simazine.119 The agency determined in its

decision that products containing atrazine were eligible for continued registration only if

registrants took certain risk mitigation measures including ecological monitoring of watersheds

and specific label modifications.

In 2009, EPA requested its FIFRA Scientific Advisory Panel (SAP) to assist in reviewing the

agency’s approach for evaluating new information about atrazine from human epidemiological

studies as well as studies of laboratory animals and wildlife.120 From 2009 to 2012, the agency

held six SAP meetings to consider the then newly available information about atrazine. Though

no decisions resulted from these meetings, the agency indicated that the information from such

meetings would be taken into account as part of the registration review process, which is

described below.

In 2011, EPA received a citizen petition requesting “a federal ban on the use and production of

atrazine.”121 The agency denied the petition in August 2013 for not “demonstrat[ing] that

immediate regulatory action is either necessary or appropriate.”122

117

Atrazine is the common name for 6-chloro-N2-ethyl-N4-(1-methylethyl)-1,3,5-triazine-2,4-diamine. Atrazine is

used for controlling broadleaf and grassy weeds in fields. It is used primarily on corn and sorghum in the Midwest. U.S.

Environmental Protection Agency, Atrazine – Chemical Details, May 2014, at http://iaspub.epa.gov/apex/pesticides/f?

p=CHEMICALSEARCH:3:0::NO:21,3,31,7,12,25:P3_XCHEMICAL_ID:1273 and U.S. Environmental Protection

Agency, Atrazine Preliminary Work Plan for Registration Review, June 7, 2013, at http://www.regulations.gov/

#!documentDetail;D=EPA-HQ-OPP-2013-0266-0008.

118

U.S. Environmental Protection Agency, Atrazine Preliminary Work Plan for Registration Review, June 7, 2013, at

http://www.regulations.gov/#!documentDetail;D=EPA-HQ-OPP-2013-0266-0008.

119

U.S. Environmental Protection Agency, Decision Documents for Atrazine, April 6, 2006, at http://www.epa.gov/

oppsrrd1/REDs/atrazine_combined_docs.pdf.

120

U.S. Environmental Protection Agency, Atrazine Updates, January 2013, at http://www.epa.gov/pesticides/

reregistration/atrazine/atrazine_update.htm.

121

U.S. Environmental Protection Agency, “5-6-11 Save the Frogs Petition to Ban Atrazine,” September 14, 2011,

available at http://www.regulations.gov/#!documentDetail;D=EPA-HQ-OPP-2011-0586-0002.

122

U.S. Environmental Protection Agency, “EPA Response to Save the Frogs’ May 6, 2011 Petition Requesting a

Federal Ban on the Use and Production of Atrazine. August 27, 2013,” September 13, 2013, available at

http://www.regulations.gov/#!documentDetail;D=EPA-HQ-OPP-2011-0586-1294.

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Environmental Regulation and Agriculture

Status

In June 2013, EPA initiated its periodic review of the registration for atrazine.123 Such periodic

reviews are required under FIFRA.124 EPA anticipates making a registration review decision in

2016.125 As part of this periodic review, the agency plans to conduct separate assessments on

ecological, human health, and other risks using currently available information. The agency

determined that registrants of atrazine were not required to develop new information. The public

will have opportunity to comment on draft risk assessments and the proposed registration review

decision upon their publication in the Federal Register. On the basis of its review, EPA will

decide whether further regulatory restrictions are necessary to prevent unreasonable adverse

effects on human health or the environment. Additionally, a “Special Review” of the potential

risks posed by atrazine and related triazine pesticides that was initiated by the agency in 1994

remains ongoing during the registration review process.126

Issues

Pesticide manufacturers, distributors, and agricultural users of atrazine have expressed concerns

that frequent reviews by EPA may lead to new restrictions or cancellation of uses.127 These

stakeholders contend that further restriction could potentially limit the availability of atrazine as a

cost-effective measure that helps growers increase crop yields. Conversely, public health and

environmental advocates maintain that new restrictions on atrazine uses should be considered and

may be warranted if the current measures associated with its registration are no longer adequate

to ensure that the distribution, sale, and use of atrazine will not present risk of unreasonable

adverse effects on human health or the environment.

CRS Contact

(name redacted), Analyst in Environmental Policy, 7-...., [redacted]@crs.loc.gov.

Pesticide Registrations and the Endangered Species Act (ESA)

The Endangered Species Act (ESA)128 seeks to protect species identified as endangered or

threatened with extinction and to protect the habitat on which they depend. It is administered

primarily by the Fish and Wildlife Service (FWS). For certain marine and anadromous species, it

123

Additional documents related to the registration review of atrazine are in the regulatory docket. U.S. Environmental

Protection Agency, Atrazine Registration Review, Docket ID: EPA-HQ-OPP-2013-0266, June 26, 2013,

http://www.regulations.gov/#!docketDetail;D=EPA-HQ-OPP-2013-0266.

124

7 U.S.C. 136a(g).

125

U.S. Environmental Protection Agency, Atrazine Final Work Plan Case Number 0062, December 2013, at

http://www.regulations.gov/#!documentDetail;D=EPA-HQ-OPP-2013-0266-0308.

126

U.S. Environmental Protection Agency, Office of Congressional and Intergovernmental Relations, e-mail

communication, October 17, 2013.

127

As an example, see comment submitted August 26, 2013 by the National Corn Growers Association in regards to

the registration review of atrazine. Comments are available at http://www.regulations.gov/#!documentDetail;D=EPAHQ-OPP-2013-0266-0074.

128

Act of December 28, 1973, P.L. 93-205, 87 Stat. 884. 16 U.S.C. §§1531-1544. For a more detailed discussion of

ESA and its structure, see CRS Report RL31654, The Endangered Species Act: A Primer.

Congressional Research Service

Environmental Regulation and Agriculture

is administered by the National Marine Fisheries Service (NMFS). Dwindling species are listed as

either endangered or threatened according to assessments of the risk of their extinction. Once a

species is listed, legal tools are available to aid its recovery and to protect its habitat. For

activities on privately owned land such as farms and ranches, the primary direct impact of the

ESA is through the law’s prohibitions on taking of listed species. The word take means “to harass,

harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any

such conduct.”129 Thus, such activities as applying pesticides to kill insects eaten frequently by an

endangered bat species, or cutting down a tree that contains the nestlings of an endangered bird,

would constitute a taking.130

If federal actions (or actions of non-federal parties that require a federal approval, permit, or

funding) might adversely affect a listed species as determined by FWS (or NMFS, depending on

the species), the federal action agencies must complete a biological assessment.131 The assessment

is used to determine whether formal consultation is necessary.132 Through consultation with either

FWS or NMFS, federal agencies must ensure, based on “the best scientific and commercial data

available,” that their actions are “not likely to jeopardize the continued existence” of any

endangered or threatened species, nor to adversely modify critical habitat.133 This is referred to as

a Section 7 consultation. “Action” includes any activity authorized, funded, or carried out by a

federal agency, including permits and licenses.

Actions of some federal agencies may affect a variety of agricultural practices over a very wide

area or a region and have the potential to affect many listed species. Perhaps the most widely

known of such agency actions is the registration and use of pesticides. Under ESA, EPA is

required to consult with FWS and/or NMFS on whether the use of a pesticide might jeopardize

the continued existence of a listed species or adversely modify critical habitat. To mitigate harm,

EPA might need to include restrictions on a pesticide label regarding its use (such as limiting total

area, weather conditions, distance from a particular habitat type, etc.). Consultation, or lack of

consultation, between agencies in such cases has sometimes been contentious and has led to

citizen lawsuits to enforce the ESA. On several occasions, EPA has been sued for failing to

comply with ESA requirements on some of its pesticide regulation decisions.134

Status

In 2013, EPA announced the availability of a final paper “describing enhanced opportunities for

stakeholder input during its review of pesticide registrations ... and associated consultations under

the Endangered Species Act (ESA).”135 This paper was jointly prepared by EPA, USDA, NMFS,

129

16 U.S.C. §1532. Harassment and harm are further defined by regulation at 50 C.F.R. §17.3.

Plants have substantially less protection under the ESA, so removing an endangered plant on private land would

trigger an ESA violation only under extremely limited circumstances. See 16 U.S.C §1538(a)(2).

131

16 U.S.C. §1536(c).

132

50 C.F.R. §402.12(a). Informal consultations are also important, and may be as simple as a federal official of one

agency calling an FWS or NMFS official to describe a small project and to find out whether there are any listed species

in the vicinity.

133

16 U.S.C. §1536(a).

134

See Washington Toxics Coalition v. EPA, 413 F.3d 1024 (9th Cir. 2005) and Center for Biological Diversity v. EPA,

2010 wl 2143658 (N.D. Cal. May 17, 2010). For more information, see CRS Report RL34641, Changes to the

Consultation Regulations of the Endangered Species Act (ESA).

135

U.S. Environmental Protection Agency, “FIFRA Pesticide Registration Review and ESA Consultation Processes;

(continued...)

130

Congressional Research Service

Environmental Regulation and Agriculture

and FWS, and outlined changes to EPA’s registration review process that are intended to facilitate

ESA consultations across the participating federal agencies, including a greater role for USDA.

The practical effect of this paper appears to be earlier and more wide-ranging consultation among

the agencies while conducting pesticide risk assessments. EPA’s statutory obligation under ESA to

consult with FWS and/or NMFS on its actions and to avoid jeopardy remained unchanged.

Also, in 2013, the National Research Council (NRC) of the National Academies, as requested by

EPA, USDA, NMFS, and FWS, published a report containing recommendations relevant to

scientific and technical issues in assessing risks to species listed under the ESA from potential

exposures to pesticides that are registered under FIFRA.136 The NRC recommended a common

approach for EPA, NMFS, and FWS to conduct risk assessments that take into account exposure

modeling, data on observable health effects, and uncertainties in current scientific understanding.

Since NRC published its report, EPA, USDA, NMFS, and FWS have reported progress in

implementing these recommendations including the development of interim approaches to be

applied in the periodic review of pesticide registration reviews beginning in 2014.137 Section

10013 of the Agriculture Act of 2014 (2014 farm bill, P.L. 113-79) directs EPA, USDA, NMFS,

and FWS to submit two reports (in 2014 and 2015) on the implementation of the NRC

recommendations.

Issues

As EPA, USDA, NMFS, and FWS continue to implement the NRC recommendations, the

agencies’ approach may affect how pesticides are assessed in terms of risk to listed species. Such

assessments are used to inform the potential need for risk mitigation measures. These measures

could include imposing restrictions on the application of certain pesticides, possibly affecting

pesticide applications, including those in agricultural areas. As federal agencies work toward a

revised approach for integrating ESA requirements as part of the pesticide registration process,

various stakeholders, including pesticide registrants and the environmental community, continue

to voice their concerns on how these activities are conducted.138 The environmental community

remains active in litigation against EPA that seeks to compel the agency to implement

requirements to protect listed species under ESA from the use of pesticides registered under

FIFRA.

(...continued)

Stakeholder Input; Notice of Availability,” 78 Federal Register 18585-18586, March 27, 2013 and U.S. Environmental

Protection Agency, “Enhancing Stakeholder Input in the Pesticide Registration Review and ESA Consultation

Processes and Development of Economically and Technologically Feasible Reasonable and Prudent Alternatives –

March 19, 2013,” March 27, 2013, at http://www.regulations.gov/#!documentDetail;D=EPA-HQ-OPP-2012-04420038.

136

National Research Council, Assessing Risks to Endangered and Threatened Species from Pesticides, (Washington,

DC: The National Academies Press, 2013).

137

U.S. Environmental Protection Agency, Interagency Approaches for National-Level Pesticide Endangered Species

Act Assessments Based on the Recommendations of the National Academy of Sciences April 2013 Report, November

13, 2013, at http://www.epa.gov/espp/2013/interagency.pdf.

138

See supporting documents submitted in docket under U.S. Environmental Protection Agency, Pesticide Registration

and Endangered Species Consultation Workshop, April 2014, at http://www.regulations.gov/#!docketDetail;D=EPAHQ-OPP-2014-0233.

Congressional Research Service

Environmental Regulation and Agriculture

CRS Contact

(name redacted), Specialist in Natural Resources Policy, 7-...., [redacted]@crs.loc.gov, or (name redacted),

Analyst in Environmental Policy, 7-...., [redacted]@crs.loc.gov.

Author Contact Information

(name redacted), Coordinator

Specialist in Agricultural Conservation and Natural

Resources Policy

[redacted]@crs.loc.gov, 7-....

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