2001-07-30 NASDA Comments on Pollutant Discharge Regulation / Guidelines & Standards for Animal Feeding Operations
July 30, 2001
Concentrated Animal Feeding Operation Proposed Rule
U.S. Environmental Protection Agency
Office of Water, Engineering and Analysis Division (4303)
402 M Street, N.W.; West Tower Room 611
Washington, DC 20460
Re: Comments on the Proposed National Pollutant Discharge Elimination System Permit Regulation and Effluent Limitations Guidelines and Standards for Concentrated Animal Feeding Operations (40 CFR Parts 122 and 412).
Dear Sir/Madam:
This is to provide you with the views of the National Association of State Departments of Agriculture (NASDA) on the Environmental Protection Agency's (EPA) proposed Concentrated Animal Feeding Operations (CAFO) regulation published in the Federal Register on January 12, 2001.
NASDA, representing the commissioners, secretaries, and directors of the state departments of agriculture in the fifty states and four territories, supports the protection of the environment and the wise use of our natural resources. Our comments are offered on behalf of all NASDA members. Individual state departments of agriculture are submitting more detailed comments that describe how the proposed CAFO rule will directly impact their states.
American agriculture is dependent upon continued access to clean water, air, and fertile land for its viability. We have serious concerns about the proposed CAFO regulations and the impact it will have on farmers, ranchers, and the agricultural community. The proposed regulations would significantly increase the number of agricultural operations subject to regulatory efforts and bring many of them into the National Pollutant Discharge Elimination System (NPDES) permit program. We are opposed to this approach for a number of reasons: (1) EPA's legal authority to require many of these Animal Feeding Operations (AFOs) to obtain permits is questionable; (2) regulating a significant number of AFOs at the proposed thresholds is neither justified nor is it the most effective way to achieve progress on the ground; and (3) the magnitude of such changes will require tremendous program resources, funding, technical and staff assistance.
As written, these regulations clearly pose a significant burden that will only serve as an impediment to future accomplishments. Furthermore, the proposed CAFO regulations contradict the EPA/USDA Unified National AFO Strategy published only two years ago and referenced in EPA's July 18, 2000 Outreach Document. These documents state that:
"for the majority of AFOs (estimated at 95 percent), voluntary efforts founded on locally-led conservation, education, and technical assistance would be the principal approach for assisting owners and operators in developing and implementing site-specific Comprehensive Nutrient Management Plans (CNMPs) and reducing water pollution and public health risks. Regulatory programs would focus permitting and enforcement priorities on high risk operations, which were expected to constitute a small percentage of all AFOs (estimated at 5 percent)."
The proposed changes outlined in the CAFO regulation are inconsistent with this statement and far exceed EPA's own predictions.
We believe that states are best situated to address most of the issues identified in the proposed CAFO regulations. Almost all states are now utilizing existing laws, regulations, strategies and programs to address water quality concerns associated with animal waste management. Many of them have invested significant time and resources in developing and implementing voluntary and regulatory programs to control pollution from animal feeding operations. In 1997, NASDA undertook a survey on state waste and manure management regulations. This survey was recently updated to reflect ongoing state activities. A copy of our survey is attached for your review and we call your attention to several important findings:
Almost half of the states have statutes or regulations that are more stringent and/or specific than current federal regulations for CAFOs;
Over 75 percent of the states require or recommend the development and implementation of a nutrient management plan for the application of manure. Of these 38 states, eight states use a voluntary approach for recommending the use of nutrient management plans, while the other 30 states require the use of nutrient management plans to meet state-specific regulations for the application of animal waste;
About 23 states have required inspections as part of their monitoring process, and thirteen states have mandatory training requirements for the operation of a variety of animal operations;
A number of states are protecting water quality without the use of permits, and many of these programs also address groundwater and odor concerns, which the federal NPDES permit program does not have authority to undertake.
Many states have state cost share programs for animal waste operations and others offer incentives for Best Management Practices (BMP) implementation related to animal operations, including award programs, tax credits, and limiting environmental liability.
The survey data and information clearly show that states have taken the initiative and a leadership role in addressing AFO/CAFO issues at the local level. In many cases, sensitive negotiations with major agricultural interests and other stakeholders have occurred over a period of years to achieve equitable solutions to difficult problems.
In creating these programs, states have learned much about animal agriculture. One of the most important lessons learned is that because concerns vary from location to location, state flexibility is essential to ensure the success of the CAFO programs. The state departments of agriculture support national CAFO program guidelines. However, a national CAFO program must be flexible enough to allow for state-to-state differences. Therefore, we strongly urge the EPA to allow states to design, control and implement functionally equivalent, state-specific programs in lieu of National Pollutant Discharge Elimination System (NPDES) requirements. The components of an acceptable state equivalent program could include comprehensive nutrient management planning, outcome-based performance standards, education and technical assistance, public participation, and oversight by EPA. The state agriculture officials stand ready to work with EPA and other stakeholders to develop the technical standards required for successful implementation of such a program.
Finally, NASDA has a number of concerns relating to the costs of the proposed CAFO rule. The program administration costs that accompany the proposed changes will overwhelm the already overburdened existing technical, financial and education assistance delivery system. For example, the rule requires that all operations submit an application to determine if they are CAFOs. This single requirement will demand significant state resources as states review and then respond to these applications. When on-site inspections are necessary to make a final determination, the costs could be tremendous.
We also believe the economic analysis of costs to producers to develop and implement the various requirements in the proposal is insufficient and flawed. NASDA is especially concerned about the fiscal impact on producers. Funds allocated under the Clean Water Act, the Environmental Quality Incentive Program (EQIP), and other USDA conservation programs are not adequate to support the existing animal feeding operation program, let alone EPA's proposed new CAFO program. In fact, once a CAFO becomes a point source, NPDES-permitted facility under the proposed rule, it is no longer eligible for 319 funding. Although, a limited amount of funding could be available under the Environmental Quality Incentives Program, EQIP is already significantly oversubscribed and under funded.
The state departments of agriculture welcome the opportunity to work with EPA to accomplish our mutual environmental goals and address concerns about animal waste management. We look forward to hearing from the agency as the public input process continues.
Sincerely yours,
<signed>
Leon C. Graves
NASDA President
Commissioner, Vermont Department of Agriculture, Food & Markets