“Unpredictable,” “foolish” and “controversial” are accurate descriptions of Washington state’s complex network of agricultural regulation. Confusing and contradicting rulings imposed by courts amplify the web of both state and federal regulations. The result of this combination of regulation and legal interpretation is that agriculture faces a costly and excessive regulatory burden.  It is time to replace this confusing mix of regulation, created by state and federal agencies basing rules on erratic court decisions, with clearly-defined law that allows farmers to make decisions that are based on sound economics and environmental stewardship.

Federal Court Overreach to State Rulemaking Circus:

One example of state rule makers turning unprecedented court decisions into regulation is currently in process. On January 14, 2015 the court found Cow Palace liable under the Resources Conservation and Recovery Act (RCRA) of 1976. Before Community Association for Restoration for the Environment (CARE) v. Cow Palace agricultural nutrients, like manure, were exempted underneath RCRA. Instead, storage of these agricultural nutrients was covered by separate state and federal legislation.

Cow Palace sought dismissal under RCRA because the typical approach would be to remediate the situation under the Safe Drinking Water Act (SDWA) or the Clean Water Act (CWA).  In fact, the EPA had already threatened enforcement action against the dairies using this approach when this citizen suit was filed, along with four other identical suits. However, the citizen suits took priority and required the EPA’s legal authority to address the situation, effectively neutralizing the government’s ability to address the problem.

Historically, RCRA and EPA’s supporting regulations have exempted agriculture to the extent that the “agricultural wastes which are returned to the soil as fertilizers or soil conditions are not considered discarded materials.” (40 C.F.R. § 257.1(c)(1)) Despite historical precedent and clear exemptions, the United States Eastern Washington District Court's federal judge ruled against the dairies, claiming their handling of manure was not in accordance with “agronomic practices.” Multiple experts disagreed, stating that the manure handling practices of the dairies were agronomic.

Adding insult to injury, the court’s conclusion expanded RCRA’s reach by stating that mismanagement of manure, “results in dangerous accumulations of nitrate in the environment,” and therefore, “transformed its manure, an otherwise beneficial and useful product, into a discarded material and thus a RCRA solid waste.”

Ruling that the presence of nitrates is indicative of mishandled nutrients threatens the use of other agricultural inputs like crop residues, on-farm vegetative waste, and fertilizer. This ruling could imply that any agricultural nutrient a judge decides is an “over-application,” would be a violation of RCRA.

The Department of Ecology (Ecology) has now incorporated this unprecedented ruling into its newest draft of the WAC Solid Waste Handling Standards Chapter 173-350. Ecology’s current draft has removed the exemption for agriculture including agricultural composting, land application of manures and crop residues.

The current version still allows an exemption if certain “terms and conditions” are met though they are ambiguous in their ability to enforce. The result is one more redundant rule for farmers to navigate.

Speaking about the decision Dale G. Mullen of McGuireWoods LLP said “I don’t think it would be going too far to say that this could potentially make it more difficult for anyone working in the agricultural industry, whether you work in animal agriculture or traditional row crop agriculture, that it has the potential to make farming unnecessarily difficult and expensive.”

Agriculture must comply with rules and regulations that are legally applicable to agriculture. However, regulatory overreach from all branches of government has created uncertainty for farm families. This uncertainty leads farmers to devote more resources to continuously changing and complex regulations instead of using their time and money to improve their environmental stewardship and ensure their farms are economically sustainable.

One attempt to remove this uncertainty is the Farm Regulatory Certainty Act (FRCA). FRCA seeks to provide clarity to laws that already exist and enforce already existing agricultural exemptions. The stated goal is “to create a legal environment where farmers have a solid understanding of which laws govern their activities and which don’t.”

FRCA does three things:

1. Reaffirm and clarify congressional intent regarding the inappropriateness of subjecting agricultural byproducts to RCRA.
2. Codify the Environmental Protection Agency’s (EPA) regulations regarding the treatment of agricultural byproducts under RCRA.
3. Prevent farmers who are already engaged in legal action or are making a diligent attempt to work with the state or federal government to address nutrient management issues from being targeted by citizen suits.

When farmers are overwhelmed by a regulatory obstacle course, their ability to be productive and good stewards of the land is diminished. Providing regulatory clarity to existing laws allows the current system to become navigable and practical – fostering the growth of Washington’s agriculture industry and allowing them to be good economic and environmental stewards of their land.