Economics of the Proposed “Waters of the US” Rule’s Do Not Make Cents

Report severely underestimates the effects on small businesses, local communities and the national economy

NAAA has experienced significant concern over the proposed policy changes and the efforts of the Environmental Protection Agency (EPA) and the Army Corps of Engineers (collectively, the agencies) to downplay the likely policy, legal and economic impacts of their proposed rule to redefine for the entire Clean Water Act (CWA) definition of “Waters of the U.S.” (WOTUS). With the rule, the agencies would replace existing policy and years of informal guidance and informal statements with black-letter-law federal regulation of the land use decisions and water quality of individual ditches and many thousands of minor “waters.” The rule would change the definition of federally protected “waters” under all programs of the CWA—redefining the scope of 15 different federal regulatory programs. NAAA has been actively involved in these discussions, has provided testimony for a House Small Business Committee hearing on the anticipated economic impacts of the proposed rule on aerial applicators, and will file public comments in the official agency docket. This article is intended to bring members up to date on this issue.

Rather than clarify current law and resolve policy following several muddled Supreme Court decisions, the proposed rule would instead create confusion and brook endless litigation that could harm aerial applicators and other private and public stakeholders. The new “waters of the US” definition would include a number of vague and broadly-defined terms such as “adjacent,” “riparian area,” “floodplain” and “significant nexus” that do not clearly delineate which waters are covered. “Uplands” are a major focus throughout the proposal but are not defined in either the rule or the preamble. For the first time in any rule or guidance document, “tributary” would be defined to include all ditches and other bodies of water that contribute “flow” (directly or indirectly, even if only remotely connected) to jurisdictional waters. “Adjacentwetlands” would be expanded in the rule to include all “adjacent waters,” likely adding thousands of newly-regulated conveyances to the scope of federal enforcement and potential citizen suits. “Other waters” also may be subject to the jurisdiction of the CWA on a case-by-case basis if there is a “significant nexus” to traditionally navigable waters. This is enough to make our heads spin, as we contemplate the impacts of the agencies’ creative policy interpretation, expansive jurisdictional reach, and imprecision of the terms used by the agencies. Our interpretation is that the proposed rule could well result in significant added legal and regulatory costs for NAAA members.

Looking specifically at potential economic impacts for NAAA members, we characterized our industry’s demographics and provided written testimony for a recent hearing of the House Small Business Committee about our concerns with the proposed rule. We said we believe the economic analysis conducted by the agencies for their proposed rulemaking did not adequately consider the economic impacts on small businesses like aerial applicators that are required under the Regulatory Flexibility Act. Had they conducted such an analysis, the agencies would have determined the proposed rule would impose significant costs, legal jeopardy and compliance burdens on the aerial application industry, and that it will interfere with the health and welfare services NAAA members provide society. Both direct and indirect economic risks would result. We explained to Congress that aerial applicators are subject to state and federal regulations for pesticide use, including enforceable FIFRA label requirements for terrestrial pesticides, many of which clearly state “do not apply to water.” Despite the most sophisticated equipment, pilots applying pesticides at 120 to 150 mph will find it difficult to correctly determine if a shadow on the ground happens to be a federally-regulated ephemeral ditch, seasonal “tributary,” or neighboring “adjacent water.” Especially troubling would be features that are dry at the time, overgrown with vegetation, and unbeknownst to aerial applicators may only occasionally and indirectly provide snowmelt or stormwater flow for a few days a year to some remote “waters of the US.” The hearing in the House Small Business Committee was held on May 29.

For any applications of pesticides intended to be sprayed “into, over or near” water (e.g., for mosquito control, forest canopy insect control, aquatic weed control, etc.), NAAA testimony explained that NAAA members are subject also to the requirements of NPDES general permits issued by EPA and 45 delegated states. The NPDES permit requirements vary widely from state to state, and aerial applicators serving clients in multiple states must maintain compliance with several different sets of permit requirements. Alleged noncompliance could result in CWA penalties or citizen suits, which could put individual NAAA members out of business. The proposed rule would create more confusion, costs and legal burdens as aerial applicators and their clients (farmers, ranchers, forest owners, public and private pest managers, and natural resource managers) struggle to locate any newly-defined “waters of the US” on their lands and adjust their work accordingly. Legal jeopardy and economic risks likely could discourage many aerial application contracts and could adversely affect access to financing for expensive aircraft.

Noted University of California–Berkeley economist Dr. David Sunding reviewed the cost-benefit analysis conducted by the agencies for the proposed rule. His report, Review of 2014 EPA Economic Analysis of Proposed Revised Definition of Waters of the Unites States, examined EPA estimates of probable costs and benefits associated with the proposed rule on “Waters of the United States,” and found that EPA significantly underestimated the economic impacts the rule will have on small businesses and local communities. His report chronicles how EPA systematically excluded costs, underrepresented jurisdictional areas and used outdated economics and flawed methodologies to arrive at indefensibly-low economic impacts. He also examined how the lack of transparency in the report makes it difficult to understand or replicate the calculations, evaluate the underlying assumptions, or understand discrepancies in the results. Dr. Sunding explains how EPA’s analysis downplays non-wetlands impacts, resulting in an artificially small increase in jurisdictional waters. Dr. Sunding’s report concluded that the agency errors are so extensive as to render its economic conclusions unusable for determining the true cost of the proposed rule. His report underscores the need for EPA to withdraw the rule and complete a comprehensive and transparent economic review.  To view Dr. Sunding’s full report, click here.

NAAA will remain engaged in this important issue.

NAAA Succeeds in Having Support for Aerial Application Research Renewed in FY 2015 Appropriations

The U.S. House of Representatives Appropriations Committee “marked up” the Fiscal Year 2015 Agriculture Appropriations bill May 29. Accompanying the bill is a committee report which, through the efforts of NAAA, contains similar language supporting aerial application research conducted by the USDA Agricultural Research Service (ARS) that was in the Fiscal Year 2014 report.

The language reads as follows:

Aerial Application Research – The Committee recognizes the importance of the ARS Aerial Application Technology Program. The program conducts innovative research making aerial applications more efficient, effective, and precise. Research for aerial application  serves the public good as a vital tool for the future, as agriculture strives to meet the food, fiber, and bio-energy demands of a growing population.

The committee report also contains support for pollinator health research, and support for the science-based approach USDA has been taking toward pollinator health:

Pollinators and Colony Health Research – The committee recognizes that Colony Collapse Disorder and related colony health issues are a significant concern to beekeepers, honey producers, farmers, researchers, policymakers, and the public and appreciates USDA’s logical, scientifically based approach to studying these issues and supports its proposed research plans for the fiscal year 2015. The Committee directs the Department to continue to focus on the challenges facing pollinators.

The House 2015 Agriculture Appropriations bill funds ARS at $1.12 billion, a $15 million increase over what President Obama requested in his FY 2015 budget released earlier this year. The Senate Agriculture Appropriations bill, which was passed by the Senate Appropriations Committee on May 22, funds ARS at $1.139 billion, a $35 million increase over President Obama’s request, and nearly $17 million over the FY 2014 funding level. The Senate bill also includes language supportive of aerial application research.

Both appropriations bills now head to their respective chambers to be debated, although no dates have been set for consideration. Congress is now under pressure to complete the 12 annual spending bills before the beginning of the federal fiscal year which commences Oct. 1. Between now and then Congress has a month-long August recess.

Oklahoma Passes Tower Marking Statute

Through the efforts of the Oklahoma Agricultural Aviation Association and other groups, the Oklahoma legislature passed a statute requiring the marking of MET towers over 50 feet, joining Colorado and Washington in passing bills in 2014.

The law, HB 3348, signed by Gov. Mary Fallin May 23, requires the Oklahoma Aeronautics Commission to promulgate rules ensuring anemometer towers are “clearly recognizable during daylight hours.” The law gives guidelines for the commission to follow, including the consideration of tower painting, flagging and marking guywires. Once the commission issues its rule, the rule would apply immediately upon promulgation to new towers, and would give a one-year exemption to existing towers.

The law also requires the Aeronautics Commission to establish and maintain a database of MET towers by Nov. 1, 2015. The commission is also directed to promulgate rules requiring MET tower owners to provide the commission with location, height and any other information the commission deems necessary. Tower owners are also required to notify the commission of the destruction or removal of MET towers. The commission is also given discretionary authority to promulgate rules regarding administrative penalties to enforce the act.

The law takes effect Nov. 1, 2014.

This new law follows a contentious veto that Gov. Fallin issued in April of SB 1195, a similar tower marking bill. That bill contained specific provisions requiring aviation orange and white painting, guywire balls and sleeves, and a 10-day notification period to the Aeronautics Commission prior to the erection of new towers and 60-day notification period for owners of existing towers. HB 3348 gives the Aeronautics Commissioner discretion over marking specifics. Both bills require the establishment of a tower database. SB 1195 also specified misdemeanor status and financial penalties for noncompliance, while HB 3348 only authorizes administrative penalties.

EPA Solicits Comments on Information Collection Request for DRTs

Updated 6/20/14

EPA has reopened the docket regarding the agency’s proposed DRT program that was initially opened in November 2012. The agency has responded to a number of NAAA and member comments, and NAAA has in turn responded to their responses. You’ll find a copy of NAAA’s initial comments filed on the November 2012 proposal here, EPA’s response to the November 2012 comments here, and NAAA’s response to EPA that was filed June 20 here. This reopening provides NAAA members and the public an opportunity to respond to EPA’s comments by June 27.

The EPA is seeking voluntary submission of this information to verify the effectiveness of application technologies for agricultural pesticide sprays, including spray nozzles, shrouds or shields and drift reducing adjuvant chemicals for aerial or groundboom applications to row and field crops. Such information would encourage the identification and use of drift-reduction technologies that can substantially reduce drift of pesticide spray droplets from the target application site (e.g., a corn field) downwind to non-target areas.

According to EPA, once the ICR is approved, the voluntary DRT program will provide incentives to the agricultural sector (industry and pesticide applicators) to manufacture, market and use spray application technologies/equipment that have been verified to significantly reduce pesticide spray drift. NAAA, in its comments last month to the EPA pertaining to the agency’s announced proposal of using models highly likely to overestimate  off-target drift, urged EPA to delay finalization of the proposal until the DRT Program is implemented.

Again, comments are due June 27. The docket can be viewed here.

Syngenta Launches Good Growth Plan Grant Contest

Sustainable agriculture” means different things to different people, but regardless of how you define it or how you think it can be achieved, one thing that reasonable people can agree is “unsustainable” would be to continue producing agricultural goods at 2014 levels and expect to meet the needs of an additional 2 billion people. By 2050 the global population is expected to rise to more than 9 billion, up from 7.2 billion today. It’s a daunting challenge and will become even more so in the future. It’s not like there is untapped land available for agriculture, and freshwater is already becoming scarce. So, what are we going to do to address this challenge—sustainably?

Syngenta has given that question considerable thought. Last fall, the crop protection manufacturer launched The Good Growth Plan to help sustainably address the global food security challenge. This week Syngenta launched a contest seeking creative ideas that will support one or more of six measurable commitments that make up The Good Growth Plan. The Good Growth Plan Grant Contest will award a grand prize of $20,000 to help the winner implement the idea. Three runners-up also will receive $10,000 each for the same purpose.

“Last fall, Syngenta launched around the world The Good Growth Plan, agriculture’s most ambitious and comprehensive program to help sustainably address the global food security challenge,” Jill Wheeler, Syngenta’s head of sustainable productivity in North America, said. “As part of this effort, we have been asking others to be involved. Now we are reaching out broadly in North America with this contest to find truly innovative ideas.”

The Good Growth Plan addresses the overall food security challenge with six measurable objectives to boost resource efficiency, rejuvenate ecosystems and strengthen rural communities. The commitments include:

1. Make crops more efficient: increase the average productivity of the world’s major crops by 20 percent without using more land, water or inputs
2. Rescue more farmland: improve the fertility of nearly 25 million acres of farmland on the brink of degradation
3. Help biodiversity flourish: enhance the biodiversity on more than 12 million acres of farmland
4. Empower smallholder farmers: reach 20 million smallholders and enable them to increase productivity by 50 percent
5. Help people stay safe: train 20 million farm workers on labor safety, especially in developing countries
6. Look after every worker: strive for fair labor conditions throughout our entire supply chain network

The contest seeks ideas that can be implemented to support one or more of the commitments outlined above. The deadline for submissions is July 14. For full contest details, official rules and to submit an idea, visit www.GoodGrowthPlanGrant.com.

For inspiration on grant ideas, watch Syngenta’s animated video. 

Save the Date for NAAA’s June 17 Cover Crops Webinar

In this webinar, you will learn:

Joining the webinar is easy!

Support NAAA & WNAAA with an Auction Donation

While we’re still several months away from the NAAA Annual Convention & Exposition taking place Dec. 8–11 in Louisville, it’s never too early to donate an item for the Live and Silent Auction. The earlier you inform us of your donation, the more advertising you’ll receive on the NAAA website and in NAAA publications. Support the aerial application industry by donating an auction item to NAAA, WNAAA or both organizations.

Donated auction items provide income for association projects and programs. Click here to download a donation form or email all of your donation details to information@agaviation.org. Big ticket items are reserved for the Live Auction, with smaller items are allocated for the Silent Auction, but final determinations are made onsite once all the offerings have been inventoried. Please include the value of your item and if the items supports NAAA or WNAAA.

Book Your Hotel Room

It’s not too early to book your hotel room at the only head quarter’s hotel; The Galt House! You can walk to and from the convention center and The Galt House via the Louie Link Skywalk; limited transportation will be provided. Book your hotel room online or call (800) The-Galt or (502) 589-5200.

There are two rooming options at The Galt House:

1. $110/night + tax for Rivue Tower (single or double) – Waterfront Balcony Suites offer views of the Ohio River and downtown
2. $130/night + tax for Suite Tower (single or double)  Executive suites with a separate bedroom