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Issues Update

EPA Releases Proposed Rule to Increase Regulation Under the CWA

The 370 page proposed rule would drastically change the definition of “Waters of the U.S.” and increase regulation on a vast number of activities in or near water, whether those waters are navigable or not.

The rule, released on March 25, proposes real changes to regulations related to “navigable waters.”  Under the proposed rule, waters will be regulated even if they are miles from the nearest “navigable” waters. The Supreme Court, in separate decisions in 2001 and 2006, ruled that Congress meant what it said: “navigable waters” does not mean all waters. This proposed rule shows that EPA refuses to accept those limits.  

While this rule gives the appearance of making concessions to agriculture, we believe it is simply window dressing. Along with its proposed rule, EPA has issued an “interpretive rule” to “clarify” that a long list of conservation practices are exempt from “dredge and fill” permit requirements under the Clean Water Act section 404 exemption for “normal” farming and ranching activities, so long as the practices comply with NRCS standards.  The listed conservation practices (which include things as commonplace as fencing) are already exempt from “dredge and fill” permit requirements under any reasonable reading of the Clean Water Act, with or without EPA’s “clarification.”

The interpretation actually narrows the statutory exemption for “normal” farming and ranching activities by requiring compliance with what have always been voluntary NRCS standards.

Finally, but perhaps most importantly, these exemptions apply only to “dredge and fill” permit requirements. They do not protect farmers from permit requirements for weed control, fertilizer application or any number of other activities that may trigger section 402 “pollutant” discharge requirements. It will not protect farmers and ranchers from the flood of new federal mandates that will flow from “water quality standards” and “total maximum daily loads” for ditches, ephemeral streams, and other features that EPA now plans to sweep into federal jurisdiction.

Endangers Species Act

Following the release of the report of the Endangered Species Act (ESA) Congressional Working Group, four working group members introduced legislation to address areas in need of improvement to the Act. Specifically, Chairman Doc Hastings (R-Wash.), and Reps. Lummis (R-Wyo.), Neugebauer (R-Texas), and Huzienga (R-Mich.) introduced four bills that focus on these fundamental themes:  the need to make ESA decisions more transparent, strengthening states and local involvement in ESA listing decisions and use of state data, the need for transparency on ESA litigation costs and payment of attorney’s fees, and making ESA attorneys fee payments reasonable to ensure that scarce taxpayer dollars are prioritized.

•    H.R.4315 (Hastings) “21st Century Endangered Species Transparency Act”
Requires data used by federal agencies for ESA listing decisions (including proposed listings) to be made publicly available and accessible through the Internet.

•    H.R. 4316 (Lummis) “Endangered Species Recovery Transparency Act”
Requires the Interior Secretary to report and comprehensively track ESA litigation costs, including attorneys’ fees, and post them on the Internet.

•    H.R. 4317 (Neugebauer) “State, Tribal and Local Species Transparency and Recovery Act.”
Requires the federal government to disclose to affected states all data used in ESA prior to any listing or proposed listing decision; and ensures that “best available scientific and commercial data” used by the federal government will include data provided by affected states, tribes, and local governments.

•    H.R. 4318 (Huizenga) “Endangered Species Litigation Reasonableness Act”
Caps hourly fees paid to attorneys that prevail in cases filed under ESA, consistent with current law under the Equal Access to Justice Act.

In addition to the legislation introduced specific to the working group report, two additional bills were also introduced this week to reform other aspects of the ESA:

•    H.R. 4284 (Neugebauer) “ESA Improvement Act of 2014”
Facilitates species management and habitat conservation at the state and local level in order to protect and restore species and prevent ESA listings.

•    H.R. 4319 (Crawford) “Common Sense in Species Protection Act of 2014”
Would modify the process for analyzing the potential economic impacts of a proposed designation of critical habitat under section 4(b) of the Endangered Species Act (ESA).  Reps. Womack, Griffin and Cotton are co-sponsors.

H.R. 4319 is similar to legislation introduced by Sen. Mark Pryor (S. 2084), the Community Protection Act introduced in the Senate on March 5.

GMO Bill Would Create National Labeling Criteria

Reps. Mike Pompeo (R-Kan.) and G.K. Butterfield (D-N.C.) soon will introduce a bill that would create a national labeling program while affirming the Food and Drug Administration’s role as the nation’s food safety authority. Farm Bureau supports a national approach to the labeling of foods made from ingredients derived from biotechnology when labeling is deemed appropriate for health or safety reasons—when a biotech food differs materially from a food product made from conventionally grown ingredients. A national approach would avoid the confusion and uncertainty of different labeling rules in different states. FDA has reaffirmed its support for a voluntary labeling system but activists say that voluntary-only labeling is inadequate.

Connecticut and Maine have both passed labeling laws that are on hold because they included provisions that postpone action until adjacent states adopt similar bills. Other states have rejected labeling legislation or enacted bills that proactively prevent labeling. So far this year, 67 biotech/GMO bills have been introduced in 25 states. Last year 110 bills were introduced in 32 states. In Arizona, Colorado, Florida, Hawaii and Oregon, efforts are underway to put the question on the ballot. A ballot battle in Washington last year was the most expensive in the state’s history, costing opponents and supporters more than $40 million. California and Washington’s voters both ultimately rejected labeling ballot measures but the issue is not going away. Some polls show tremendous public support for the labeling of biotech crops and products. Passing labeling bills are not without costs to the states. The legislation once passed generates lawsuits. Maine and Connecticut’s Attorney Generals have both expressed concern about the cost of defending the laws in court.  Legislation introduced in Congress is in reaction to getting in front of the issue before the states piecemeal their own diverse set of laws.

USDA Launches Program to Reduce Feral Hog Numbers

This week USDA announced a new national plan aimed at reducing damage caused by feral swine with a long term goal to eliminate feral swine in 10 states within seven years. The $20 million program will be managed under the Wildlife Services program of USDA’s Animal and Plant Health Inspection Service (APHIS) to work directly with states to control populations, test animals for diseases, and research better methods of managing feral swine damage. Initial goals set by APHIS aim to have the program operational within the next six months with funding allocated for several comprehensive projects including:
•    $9.5 million for state projects
•    $1.4 million for establishing procedures for disease monitoring, including the development of new surveillance and vaccination methods
•    $1.5 million for WS’ National Wildlife Research Center to conduct research and economic analyses to improve control practices
•    $1.6 million for the centralization of control operations, and for making them safer and more cost-effective
•    Additional information on feral swine damage management can be found on the APHIS website here.
Feral hogs continue to grow in numbers throughout portions of the United States and have expanded their range from 17 to 39 states over the last 30 years. Because of their destructive feeding habits and potential to spread disease, feral hogs pose a substantial liability to production agriculture and native wildlife. Controlling wildlife damage is a critical factor in maintaining the success of American agriculture. Farm Bureau supports efforts by the USDA Animal and Plant Health Inspection Service (APHIS) Wildlife Services to work to eradicate feral hogs.

Forms now Ready for Grain Drying and Storage Energy Exemption

Farmers who do on-farm grain storage or drying may now fill out paperwork to gain a sales tax exemption on energy. Act 1401 of 2013 provides an exemption from state and local sales taxes for electricity, natural gas, and liquefied petroleum gas used by qualifying grain drying and storage facilities beginning July 1, 2014.The bill that created the exemption was sponsored by Senator Johnathan Dismang of Searcy during the 2013 legislative session.

The eligible utility must be separately metered and used only for the purpose of the exemption. If a utility is sold for any other purpose, it will not be eligible for the exemption. Multiple use meters that provide the utility services for both grain drying and storage facilities and for other types of structures, facilities or equipment are not eligible for the exemption. Before the exemption is allowed, those claiming the exemption must obtain a certificate from DFA to provide to the utility supplier. The exemption does NOT include utilities used in irrigation. Dyed diesel is taxed at a per gallon rate thanks to Act 87 of 2007, also supported by Arkansas Farm Bureau Federation.

The form is linked here.

Updated list of NAICS codes

Farmers Need to Certify Utility Meters for Sales Tax Exemption

Farmers may still sign up for the exemption for livestock, aquaculture and horticulture facilities. Farmers who are eligible for the sales tax exemption on utilities detailed in Act 1441 of 2013 (HB 1039) that was passed during the 2013 legislative session will need to get their utility accounts and meters certified by the Arkansas Department of Finance and Administration in order to receive their exemption. Farmers will submit their paperwork to DF&A for certification. The agency will then send farmers a certificate that farmers provide to their utility companies. The exemption starts January 1, 2014 but utility providers will not apply the exemption without proper documentation.

DF&A is sending out these certificates as soon as farmers submit their paperwork. More than 1,800 farmers have applied for the exemption created under HB 1039. Rep. Jeff Wardlaw of Hermitage was the lead House sponsor of the bill during the 2013 session. He partnered with more than 80 co-sponsors to pass the legislation.

Act 1441 of 2013 provides an exemption from state and local sales taxes for electricity, natural gas, and liquefied petroleum gas used by qualifying agricultural structures and qualifying aquaculture and horticulture equipment beginning January 1, 2014.

The eligible utility must be separately metered and used only for the purpose of the exemption. If a utility is sold for any other purpose, it will not be eligible for the exemption. Multiple use meters that provide the utility services for both eligible farm structures and facilities and for other types of structures, facilities or equipment are not eligible for the exemption. Before the exemption is allowed, the farmer seeking the exemption must obtain a certificate from DFA to provide to the utility supplier.

Fact Sheet on who qualifies for Act 1441

The forms to obtain the necessary certificate are linked here.
(Save PDF form locally to your computer then open with Adobe Reader, it will not open in an internet browser)

To complete the forms, you will need the federal NAICS code for your business. We have prepared an abbreviated list of NAICS codes to help. If you do not see your code it can be found at NAICS Search

Upon completion, they need to be returned to Sales and Use Tax Section, P O Box 3566, Little Rock, AR 72203-3566

If you have questions about the forms, you can call DF&A at 501-682-7105 or email them through the website

If a farmer does not have their meters certified by January 1, 2014, there are ways to reclaim those tax dollars. This process applies only to Act 1441. Farmers eligible for Act 1401 (sales tax exemption for utilities used in grain storage and drying) will complete a similar process next spring. Act 1401 does not take effect until July 1, 2014. DF&A does not have that paperwork quite ready yet and is not ready to process those requests.

Statewide Measure the Candidate

Farm Bureau leaders are encouraged to attend a statewide Measure the Candidate meeting in North Little Rock on April 22. Candidates for U.S. Senate, U.S. House, Governor and other state constitutional offices will be invited.

Farm Truck Regs

Farm Bureau recently unveiled a new publication called Farm Truck Regs. It includes condensed information about hauling agriculture commodities and regulations applied to farm trucks. Printed copies are available upon request. For a quick view of the publication visit

Notification Requirements of the Affordable Care Act

The Affordable Care Act requires all employers with more than $500,000 in annual gross receipts to provide their employees with an “Exchange Notice” by October 1. The notice must be provided to all current and new full-time and part-time employees, including H2A workers, and seasonal employees. This notice is required regardless of whether or not an employer offers health insurance to their employee(s). The fact sheet below has been developed for farm employers, offering guidance on how to comply with this new and ongoing requirement. Also below are sample forms that employers can use to provide the required notification. With the pending deadline quickly approaching, we wanted to take this opportunity to remind our members of this requirement. More information is also available through the U.S. Department of Labor.

Fact Sheet for Farm Employers.pdf
Sample Notice Form for Employers NOT Providing Coverage.pdf
Sample Notice Form for Employers Providing Coverage.pdf
Sample Notice No. 3

Legislative Summary for the first session of the Eighty-ninth General Assembly

The 89th General Assembly wrapped up officially on May 17. Farm Bureau has prepared a summary on issues impacting agriculture and rural Arkansas. The legislature dealt with a huge volume of bills and issues so the summary is in no way comprehensive. Many of the issues that were in the headlines are not covered in the summary simply because they were adequately covered elsewhere.  

Arkansas Farm Bureau Legislative Summary

The legislature passed a number of tax cuts during the 2013 session. We have prepared a spreadsheet that lists the agriculture related cuts and their effective dates.

Agriculture Tax Cuts.pdf

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