Comments on issues presented in the Draft Guidance Manual and Example NPDESPermit for Concentrated Animal Feeding Operations - December 3, 1999
November 24, 1999
Via E-Mail (Original to be Mailed)
Mr. Gregory Beatty
U.S. Environmental Protection Agency
401 M Street, SW
Mail Code 4203
Washington, DC 20460
RE: Comments on the Draft Guidance Manual and Example NPDES Permit for Concentrated Animal Feeding Operations
The undersigned agricultural organizations submit these comments on issues presented in the Draft Guidance Manual and Example NPDES Permit for Concentrated Animal Feeding Operations, published on August 25, 1999 (64 Fed. Reg. 46390) hereinafter referred to as the “Guidance Manual.”
We represent a vast array of agricultural interests, all of which have a concern about our environment and have a long history of being stewards of the land by implementing sound conservation practices. Agriculture has made substantial investments and taken great strides in protecting the environment. Many of our members have achieved great environmental accomplishments though voluntary, incentive-based programs, while others have been regulated under both state and federal Clean Water Act provisions. These programs have led to many successes that EPA should recognize and credit in the guidance.
This proposed Guidance Manual addresses many new issues never before addressed in NPDES CAFO permits. The process of placing these new requirements upon the agriculture industry through a guidance document needs to be based on sound science and within the jurisdiction of the agency.
Many states have already taken a strong lead in working with and regulating animal feeding operations. The Draft Manual fails to provide adequate flexibility or assurance that states will be given due credit for their equivalent programs, or that producers in turn will receive credit for stewardship efforts already undertaken.
The following attachments are individual summaries of the issues that EPA should address as the Draft Manual is rewritten for final publication. EPA needs to take into consideration that States are presently working to address CAFO issues, and EPA should give these efforts a chance to work before additional federal regulations are promulgated. We stand ready to work with EPA in building upon the ongoing successes. We hope you take our comments under careful consideration, as well as the individual comments many of the undersigned groups submit, as implementation of the provisions in the Draft Guidance Manual will have a substantial impact on agriculture.
Sincerely,
AgriBank
Agricultural Retailers Association
American Farm Bureau Federation
American Feed Industry Association
American Horse Council
American Soybean Association
California Cattlemen’s Association
CoBank
Dairy Farmers of America
Federation of Animal Science Societies
Land O'Lakes
National Association of State Conservation Agencies
National Association of State Departments of Agriculture
National Cattlemen’s Beef Association
National Chicken Council
National Conservation Buffer Council
National Corn Growers Association
National Council of Farmer Cooperatives
National Livestock Producers Association
National Milk Producers Federation
National Pork Producers Council
National Turkey Federation
Texas Cattle Feeders Association
The Fertilizer Institute
Attachments
Agricultural Conservation Successes
We have long been advocates for sound environmental practices in the agriculture sector based on science and economic achievability. We believe that voluntary, incentive-based environmental protection will be much more effective in promoting agricultural stewardship than an increase in regulations and/or guidance based on traditional command-and-control principles.
A voluntary, incentive-based approach to address environmental concerns is the key theme of the Clean Water Action Plan, the 1996 Farm Act (e.g.-Environmental Quality Incentive Program, Conservation Reserve Program, Wetlands Reserve Program), and the source water protection provisions of the Safe drinking Water Act of 1996. This theme is also consistent with the Administration’s goals, reflected through its small business assistance programs, to reinvent government in a manner that will foster the health of the nation’s small businesses while pursing important environmental protection goals.
- The Environmental Quality Incentives Program (EQIP) assists row crop and livestock producers with the direct costs of adopting conservation practices while keeping land in production. It is essential to helping producers meet ongoing and numerous federal, state and local water quality and other program challenges. Producers' demand for EQIP assistance far outstrips the current funding levels. In 1998, USDA received almost 55,000 applications for EQIP assistance, representing almost $490 million in need. USDA was able to fund only approximately 20,000 of these applications and provide only $154 million in assistance.
- Conservation Tillage: Annually over 100 million acres of land are farmed using this technique which significantly reduces soil erosion and runoff of crop protection chemicals and plant nutrients in soil sediment. Crop residues (dead roots, stems and leaves) from the previous harvest are allowed to remain on the soil as farmers prepare the next seedbed, serving as a filter for rainfall and runoff and as an anchor for soil from wind and water erosion.
- Precision Farming: Computer-based, satellite-directed modeling and mapping techniques are being incorporated into farming practices. These techniques include Geographic Information Systems and Global Positioning Systems which utilize satellite telemetry and on-board computerized farm equipment to precisely apply nutrients and pesticides on-the-go within fields to match varying site conditions and avoid vulnerable areas or waterbodies.
- Conservation Compliance Program: 140 million acres of highly erodible land continue to be protected by erosion-reducing practices such as conservation tillage, terraces, contour planting, conservation buffer strips and grassed waterways to protect the land from erosion and reduce runoff of nutrients and pesticides. Currently, about 98 percent of all highly erodible farmland are enrolled in the federal USDA program.
- Under the National Conservation Buffer Initiative, private landowners have voluntarily established riparian buffer strips to help reduce runoff and soil erosion and improve water quality by guarding against polluted runoff from their land.
Agricultural Conservation Successes (cont.)
- Conservation buffers slow water runoff, trap sediment, and enhance infiltration within the buffer. Buffers also trap fertilizers, pesticides, pathogens, and heavy metals, and they help trap snow and cut down on blowing soil in areas with strong winds. In addition, they protect livestock and wildlife from harsh weather and buildings from wind damage. If properly installed and maintained, they have the capacity to:
* remove up to 50 percent or more of nutrients and pesticides.
* remove up to 60 percent or more of certain pathogens.
* remove up to 75 percent or more of sediment. [1]
- Conservation buffers reduce noise and odor. They are a source of food, nesting cover, and shelter for many wildlife species. Buffers also provide connecting corridors that enable wildlife to move safely from one habitat area to another.
Certain provisions of the Guidance Manual may hamper successes enjoyed by voluntary programs. Specifically, we are concerned that the criteria which could cause AFOs with as few as 300 animal units to be classified as CAFOs might be interpreted so as to undermine the voluntary water quality efforts now under way by agricultural producers. If the description of a “man-made conveyance” in Section 2.3.3 is read too broadly, it could include several types of buffers (including grassed waterways and filter strips), terraces, and other conservation practices put in place precisely to protect water resources. Please consider this when writing the final Guidance.
25 year 24-hour Storm Exemption and Agriculture Stormwater Exemption
25 year 24-hour Storm Exemption
The Draft Guidance Manual Section 2.3.6, proposes that EPA will tighten the interpretation of the current regulatory exemption for facilities that do not discharge except in the event of a 25-year, 24-hour or larger storm event. EPA states: “most AFOs with more than 1,000 AU’s probably have discharged in the past or have a reasonable likelihood to discharge in the future, at less than a 25-year, 24-hour storm event, and therefore be required to apply for and obtain a permit.” EPA goes on to say that facilities that do not believe they will discharge should apply for an NPDES permit and provide technical documentation of no discharge with the permit application.
- First, EPA makes an accusatory statement that most AFOs over 1,000 AU’s discharge. EPA did not cite data or even offer an explanation of how the conclusion was reached.
- Second, EPA is attempting to shift the burden of proof to the regulated entity to prove it does not discharge. This would be a very economically difficult process and extremely burdensome on producers. The United States or citizens have the burden to prove all Clean Water Act violations and cannot shift a burden to an operator to disprove the need for a NPDES permit.
- Third, EPA does not establish a level of proof for those criteria necessary for the operator to demonstrate to EPA that the AFO will not discharge.
If EPA wants to eliminate the regulatory exemption, it should do so through rulemaking in accordance with the Administrative Procedures Act or by statutory change through Congress. However, we feel the exemption is necessary to allow producers the opportunity to engineer a facility to remain out of the Clean Water Act regulations.
Agriculture Stormwater Exemption
The Draft Guidance attempts to enforce a narrower interpretation of the existing point source exclusion for agriculture stormwater by stating that a farmer needs to have a Comprehensive Nutrient Management Plan (CNMP) to qualify for this exemption. When passing the Clean Water Act Amendments of 1987, Congress specifically added this exclusion so that those activities that result from storm related nonpoint source runoff from farming activities would not be considered a point source and have to be permitted. The Statute does not authorize EPA to add the CNMP requirement in order for a farmer to use the agriculture stormwater exemption. The EPA cites the Southview Farms case as precedent for placing this condition on the exemption. This case focused on mismanagement and not a storm event. Thus, this case is not applicable when a farmer has nonpoint source runoff from farming activities due to a storm event.
Comprehensive Nutrient Management Plans
Section 3.1 of the Draft Guidance Manual proposes that Comprehensive Nutrient Management Plans (CNMPs) be required as a special condition of a CAFO’s NPDES permit. While we generally support the concept of voluntary, incentive-based nutrient management planning as a tool for producers, there are some concerns with CNMPs raised by the Guidance Manual.
- CNMP information should not be available for review by outside parties. The CNMP should be retained onsite and only be available to permitting authorities. These plans should be considered confidential business documents which outline a producer's strategies and practices and should not be available to the general public.
- There needs to be more coordination between EPA and USDA regarding the components of CNMPs. More specifically, the CNMP used in the regulatory program as a permit requirement must be the same as the CNMP used voluntarily by non-permitted AFOs. If two different plans are used, the incentive for producers to voluntarily develop CNMPs in hope of avoiding the regulatory program disappears.
- Another coordination concern is the issue of timing. It is proposed that permits which include CNMPs be issued to large CAFOs by January 2000, while the CNMP Guidance document is not expected to be available in final form until June 2000. Under this timeframe, producers would be required to operate under permits when all the conditions are not known.
- Coordination among federal and state programs is necessary for successful implementation of CNMPs. There is sure to be confusion regarding which state nutrient management plans can now be accepted as CNMPs. There is no incentive for producers to work now to voluntarily develop nutrient management plans if they fear the standard is going to change.
- CNMPs must not be prescriptive. These plans must be flexible and site-specific in order to be useful to producers.
- The CNMP and entire guidance document should not discuss feed management since that is a voluntary consideration and not to be included in a regulatory document.
- The agricultural community is concerned about the resources available to help develop and implement these plans. It’s estimated that approximately 15,000 additional CAFOs should now be permitted under the existing NPDES regulations. This is going to place a huge burden on already tapped resources- educational, financial, and technical. We are interested in working with USDA and EPA to identify resources available to develop and implement these plans and determine what kind of financial assistance will be available to producers.
- The land application component of CNMPs will be discussed separately.
If developed sensibly, CNMPs can provide producers with a viable nutrient management tool. EPA and USDA must concentrate on coordinating their efforts during the development and implementation process so that producers will have a tool they can work with. Attention must also be given to the resources and incentives available to producers to implement such plans.
Ownership and Transfer of Manure
The Guidance Manual and Example NPDES Permit contain provisions related to the off-site disposal of manure at Sections 3.1.1 and 3.3.1. These requirements constitute “regulation” of the CAFO operator and/or of those businesses or individuals that purchase animal waste from CAFO operators. Such regulation exceeds the powers given to the EPA under the CWA.[2]
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This proposal is an attempt to place permit requirements on nonpoint sources of pollution, an action that is not authorized by the CWA.[3]
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Also, EPA should not attempt to regulate manure or characterize manure as solid waste so as to attempt to regulate under other environmental laws. Manure is a useful product for farmers to provide nutrients and organic substance to the soils.
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The Guidance Manual fails to analyze many of the practical implications of what EPA is proposing. In many situations, a producer sells the manure to a contract hauler and thus the requirement to have the CAFO operator responsible for securing a signed document by the farmer would be nearly impossible.
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To our knowledge, EPA has failed to analyze the consequences of requiring a farmer receiving manure to sign a statement of intent and providing a showing of using the product in accordance with a CNMP. It is very possible this will completely destroy the market for manure.
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The signed statement by the farmer has the potential to impose liability on the CAFO operator to regulate a farmer who uses the CAFO’s product. The reporting requirements provide ample information for the farmer and thus the signed statement is unnecessary.
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The manure and effluent from retention ponds/lagoons should be viewed as “useful products” rather than “waste,” which might exempt the materials from regulation under the Draft Guidance Manual and Example NPDES Permit.
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The use of manure by third parties on their own farms should not subject the off site party to citizen lawsuits. Also, compliance with Best Management Practices in the CAFO’s Comprehensive Nutrient Management Plan will provide protection against citizen suits for the CAFO permit holder
It appears that EPA is attempting to stretch its jurisdiction under the Clean Water Act and place EPA’s enforcement responsibilities upon the private regulated sector. The section on offsite land application should be either excluded or edited to remove the sections that are discussed above.
The co-permitting of corporate entities is discussed in Section 2.4 of the Guidance Manual. EPA defines corporate entities associated with CAFOs as co-permitted operators: “Corporate entities that exercise substantial operational control over a CAFO should be co-permitted along with the CAFO operator” on a case-by-case basis.
Substantial operational control is defined in the Draft Guidance to occur when the corporate entity directs the activity or persons working at the CAFO, owns the animals, or specifies how the animals are grown, fed, or medicated. Furthermore, the guidance states that “EPA may identify other factors which may also demonstrate corporate control over a specific CAFO.”
Co-permitting of corporate entities raises the following concerns:
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The relationship between a corporate entity and a producer does not meet a reasonable definition of "substantial operational control" over the contract grower operation. Therefore, EPA does not have the legal authority to consider corporate entities as "operators" of a CAFO under the CWA.
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In addition, EPA does not have the authority to require states to require corporate entities to be co-permitted under NPDES permitting requirements for contract grower operations.
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Furthermore, Internal Revenue Service regulations state that an individual is an “independent contractor” if he “is subject to the control or direction of another merely as to the result to be accomplished by the work and not as to the means and methods for accomplishing the result. 26 CFR 31.3121(d)-1(C)(2).
Co-permitting requirements would place unknown risks on corporate entities that have no direct control over the activities at a grower's farm. Most AFO/CAFO facilities are family-owned, private enterprises, and typically include other farming or cropping operations where nutrients are produced or utilized. Crop production and grazing operations are outside the scope of the contractual relationship between the farmer owner and the corporate entity. Total farm oversight by corporate entities is not practical and would be opposed vigorously by a majority of farmers as an intrusion into their private business decisions.
Individual versus General Permits
Section 4 of the Guidance Manual discusses the available permitting options (the use of individual versus general permits) for CAFOs. Decisions as to whether a general or an individual permit is appropriate should be based on the waste-handling practices at the particular facility, the impact of those practices, and the resulting need for any permit conditions that differ from, or add to, those contained in a general permit.
The Draft Guidance states that individual permits are required for, among other things, exceptionally large operations, new operations, and those undergoing significant expansion. We disagree for the following reasons:
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EPA should urge state permit writers to concentrate on risk factors such as proximity to water, climate, and management expertise rather than size of operation.
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New CAFOs are probably the most likely to be properly located, designed, and built and therefore should be likely to qualify for a general permit.
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Operations undergoing significant expansion should not automatically require individual permits. Consideration should be given to the design capacity animal number of any operation rather that determining "significant expansion" as a point-in-time change in animal numbers.
EPA estimates that 15,000 to 20,000 new NPDES permits should be issued to currently unpermitted CAFOs under existing regulations. The work load on already over-burdened regulatory agencies would drastically increase if they must invest time and money in comprehensive, expensive individual permits, when general permits would be adequate. We urge the agencies to develop guidance language that makes it clear that general permits should be available to all operations of all sizes and age, except those operations with historic compliance problems.
Endangered Species Act Protections for "Proposed to be Listed" Species
As described in Section XX of the Guidance Manual, among those operations which require an individual permit would be "Any CAFO with significant environmental concerns such as potential adverse impacts on a listed or proposed to be listed endangered or threatened species or its critical habitat." This "potential adverse impacts" provision is very subjective, potentially eliminating a huge number of CAFOs from general permit eligibility. However, even more problematic is the agency's extension of Endangered Species Act (ESA) Section 7 responsibilities to "proposed to be listed" species and their habitat. Clearly this is beyond EPA's legal authority.
Perhaps the most far-reaching provision of the ESA is the requirement of Section 7 that each federal agency take steps to ensure that its programs will not jeopardize an endangered species or its habitat. Applied to livestock NPDES permits, Section 7 requires EPA to identify permit provisions that may harm listed species or their habitats and take precautions, in consultation with the U.S. Fish and Wildlife Service (FWS), to avoid biological jeopardy resulting from permitted land uses. The consultation process supplies advice and information. It is not supposed to be a device to veto EPA's actions. Although obliged to consult with FWS, EPA has the final authority to determine the appropriate regulatory action to avoid jeopardy to a listed species, provided it falls within the bounds set by the Act itself. If a jeopardy opinion is issued, the FWS suggests land use alternatives that avoid harming the listed species and habitat. These "prudent and reasonable" alternatives usually restrict or modify the land use in the habitat of the species. EPA may use the alternatives suggested by FWS or devise other alternatives, approved by the FWS, to comply with the ESA. Federal officials must consult and cooperate with state officials in the implementation of the Act. State laws may provide stronger protections than ESA, but state actions are superseded if they provide less protection than under federal law.
The Act specifies the procedures and criteria for determining what species to list as endangered or threatened. The Secretary of the Interior shall designate, solely on the basis of the best available scientific data, species to be listed, removed, or have their status changed. Regulations may be issued to implement protection of listed species, set aside critical habitat, or initiate recovery plans. Petitions must be acted on within 90 days and determinations made within one year, although extensions are allowed if the information available is insufficient. The status of listed species must be reviewed every five years. Written explanations must be given to state authorities for regulations contrary to the stated position of the state.
However, these protections do not apply to "proposed to be listed species." In its Guidance, EPA improperly expects states to restrict general permit eligibility. We urge EPA to remove this provision from the Guidance.