January 19, 2012
Environmental Protection Agency
Water Docket, Mail Code: 28221T
1200 Pennsylvania Ave., NW
Washington, DC 20460
Docket No. EPA–HQ–OW–2011–0188
Re: National Pollutant Discharge Elimination System (NPDES) Concentrated Animal Feeding Operation (CAFO) Reporting Rule
To whom it may concern:
The National Association of State Departments of Agriculture (NASDA) respectfully submits the following comments on EPA’s proposed National Pollutant Discharge Elimination System (NPDES) Concentrated Animal Feeding Operation (CAFO) Reporting Rule.
NASDA represents the commissioners, secretaries, and directors of the state departments of agriculture in all fifty states and four U.S. territories. State departments of agriculture are responsible for a wide range of programs including food safety, combating the spread of disease, and fostering the economic vitality of our rural communities. Conservation and environmental protection are also among our chief responsibilities.
In this rule EPA proposes to create new regulatory requirements for CAFOs under Section 308 of the Clean Water Act (CWA). The proposal stems from an agreement signed in 2010 between EPA and environmental petitioners to settle a challenge to the 2008 CAFO rule.
Specifically, EPA co-proposes two options for collecting this information: Option 1 would require all Large or Medium CAFOs to supply the requested information, while Option 2 would require all Large or Medium CAFOs in a “focus watershed” to supply the information. EPA also presents three alternative approaches to gather information about CAFOs. These include: use of existing data sources, alternative mechanism for promoting environmental stewardship and compliance, and state reporting. As discussed below, we have significant concerns with both co proposals and therefore request that EPA not finalize this proposal.
Before discussing specifics of the proposed rule, we are very troubled by the fact that this rulemaking represents yet another example of the agency setting policy via a settlement agreement. Because of the secrecy associated with settlement negotiations, state agencies are precluded from participating in those discussions. As co-regulators with EPA, state agencies are responsible for implementing many of the policies that result from these agreements. EPA does a disservice to state programs whenever policy decisions are made without input by states and impacted stakeholders.
I. The Proposed Rule Poses Significant Biosecurity Risks to Our Nation’s Food Supply and Compromises Producers’ Privacy
EPA proposes using its discretionary authority under Section 308 of the CWA to require all CAFOs to provide: (1) contact information for the owner or an authorized representative (including phone number and email address); (2) location of production areas by either latitude and longitude or by a street address; (3) NPDES permit status; (4) number and type of animals; and (5) where the CAFO applies manure and the number of acres available for land application.
Section 308 requires public disclosure of information obtained under this authority to be made publicly available (33 U.S.C. 1318(b)). While EPA was correct in not proposing a number of the original 14 items outlined in the settlement agreement, the prospect of compiling the remaining items into a national, publicly accessible database will have serious biosecurity ramifications on individual facilities and could pose tremendous risks to our nation’s food supply. The federal government has recognized the potential vulnerabilities of CAFOs (and other agricultural production areas), and the ramifications of these vulnerabilities to homeland security. Specifically, Homeland Security Presidential Directive-7 established agriculture and food systems as “critical infrastructure.”
Unfortunately, a number of individuals and organizations are ideologically motivated to destroy, vandalize, and engage in other harmful activities towards CAFOs. These activities can cause property damage, personal injury, injury to animals, and significant biosecurity risks. Modern CAFOs are tightly restricted facilities in order to help prevent the introduction or spread of diseases or other biological hazards that could threaten animal health and/or the security of the nation’s food supply. The agency must also keep in mind that these facilities are not always simply isolated production areas, but are often just feet from a farmer’s family home. This heightens the sensitivity of making this information publically available.
As a specific example, in March of 2010 a number of state departments of agriculture received letters from Peter Young requesting the locations of several types of animal facilities. Mr. Young had previously been convicted of federal crimes stemming from the release of mink from fur farms, for which he was sentenced to two years in federal prison, $254,000 in restitution, 360 hours of community service at a charity “to benefit humans and no other species,” and one year of probation. As Mr. Young had previously been convicted on charges related to vandalism against animal facilities, it is doubtful Mr. Young requested this information from state departments of agriculture in a quest to help improve water quality. Instead, it is likely Mr. Young sought to either use this information to cause mischief, or worse.
Sadly, cases similar to Mr. Young’s are all too frequent, and are far from isolated. By finalizing this rule, the agency will be providing those with nefarious intent a roadmap to facilities designated as critical infrastructure by the federal government.
II. The proposed rule would regulate facilities in a manner at odds with EPA’s authority under the CWA
The proposed rule is a blanket requirement that will apply to all CAFOs, regardless of whether or not the facility actually discharges a pollutant to a navigable water. We disagree with EPA’s assertion that, despite recent court rulings, the agency’s authority under Section 308 allows it to collect this information from non-permitted facilities. In fact, the Section 308 authority the agency is relying on for this rule specifically applies to point sources. According to the CWA, a point source is “any discernible, confined and discrete conveyance, including…concentrated animal feeding operations… from which pollutants are or may be discharged.” However, there are thousands of facilities that meet the regulatory definition of a CAFO (and would be regulated under this proposal) yet are not point sources because they do not—or cannot—discharge pollutants to a navigable water.
Despite the agency’s assertion to the contrary, federal appellate courts have clearly held that the CWA limits EPA’s regulatory authority to CAFOs that discharge. Specifically, we point to the 2011 decision by the 5th Circuit in National Pork Producers Council v. EPA which held that “there must be an actual discharge into navigable waters to trigger the CWA’s requirements and the EPA’s authority. Accordingly, the EPA’s authority is limited to the regulation of CAFOs that discharge.”
In this proposal, EPA contends that its request for information does not require CAFOs to obtain NPDES coverage and that the 5th Circuit’s NPPC decision therefore does not apply. We disagree. Section 402 and Section 308 only regulate point sources. Moreover, the information EPA is proposing to require is not dissimilar from the information required by NPDES permits. The agency’s attempt to regulate facilities that are not point sources is a clear overreach of its authority. (We concur with and refer the agency to the comprehensive discussion on these issues contained in comments submitted to this docket by the Utah Department of Agriculture and Food)
Finally, we emphasize a practical matter related to EPA proposing to regulate CAFOs that are not point sources. Just a few months ago a federal appeals court told these facilities they were not regulated by the CWA. How will these CAFOs know that they are now compelled—on the threat of serious fines—to submit information to EPA? As very few farmers read the federal register, how does EPA intend to conduct outreach to these facilities?
III. The proposed rule imposes unreasonable requirements on producers, without corresponding or appreciable environmental benefits
While we hold that EPA is exceeding its authority under the CWA in this attempt to regulate CAFOs that are not point sources, the agency does have clear authority under Section 308 to reasonably request this information from point source CAFOs. However, EPA’s blanket request of this information is not reasonable and does little to enhance environmental protection. Because CAFOs that discharge are required to obtain NPDES permit coverage, state permitting authorities and/or EPA already have this information. It is not reasonable to require a duplicative paper exercise that diverts attention, time, and resources away from valuable and effective programs with outcomes known to improve environmental protection.
IV. Specific comments on the co-proposals and alternative approaches
While the concerns articulated above apply to both Option 1 and Option 2, we have specific concerns with how EPA will determine the watersheds it will target in Option 2. The process by which these will be determined is unclear, as is the criteria the agency will use. We are concerned that this ambiguity will lead to a process that fails to adequately involve state regulatory partners or stakeholders. Additionally, it seems that these focus watersheds could constantly be up for reconsideration, leading to a lack of clarity for both regulators and the regulated community.
Instead of requiring CAFOs (or even states) to submit this information to EPA, the agency should turn to the available sources of information available from other federal agencies and states. By doing this, EPA will avoid the substantial privacy and biosecurity concerns associated with Options 1 and 2.
Specifically, we point to information gathered by the US Department of Agriculture (USDA) National Agriculture Statistics Service’s Census of Agriculture, as well as USDA Natural Resources Conservation Service (NRCS) Conservation Effects Assessment Project (CEAP). Because this information is aggregated to protect producer privacy, these sources can help point EPA to areas that may need additional assistance (particularly compliance assistance, education and financial resources), while avoiding the biosecurity and privacy concerns expressed earlier in these comments.
Finally, because the proposed rule would pose significant biosecurity risks to our nation’s food supply and compromises producers’ privacy; would regulate facilities in a manner at odds with EPA’s authority under the CWA; and impose unreasonable requirements on producers, without corresponding or appreciable environmental benefits, we respectfully request EPA not finalize this proposal.