SPEAKERS CONTENTS INSERTS Tables
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72–859 PS
2001
MANAGEMENT OPTIONS FOR CONCENTRATED ANIMAL FEEDING OPERATIONS
(107–21)
HEARING
BEFORE THE
SUBCOMMITTEE ON
WATER RESOURCES AND ENVIRONMENT
OF THE
COMMITTEE ON
TRANSPORTATION AND INFRASTRUCTURE
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HOUSE OF REPRESENTATIVES
ONE HUNDRED SEVENTH CONGRESS
FIRST SESSION
MAY 16, 2001
Printed for the use of the
Committee on Transportation and Infrastructure
COMMITTEE ON TRANSPORTATION AND INFRASTRUCTURE
DON YOUNG, Alaska, Chairman
THOMAS E. PETRI, Wisconsin, Vice-Chair
SHERWOOD L. BOEHLERT, New York
HOWARD COBLE, North Carolina
JOHN J. DUNCAN, Jr., Tennessee
WAYNE T. GILCHREST, Maryland
STEPHEN HORN, California
JOHN L. MICA, Florida
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JACK QUINN, New York
VERNON J. EHLERS, Michigan
SPENCER BACHUS, Alabama
STEVEN C. LATOURETTE, Ohio
SUE W. KELLY, New York
RICHARD H. BAKER, Louisiana
ROBERT W. NEY, Ohio
JOHN COOKSEY, Louisiana
JOHN R. THUNE, South Dakota
FRANK A. LOBIONDO, New Jersey
JERRY MORAN, Kansas
RICHARD W. POMBO, California
JIM DEMINT, South Carolina
DOUG BEREUTER, Nebraska
MICHAEL K. SIMPSON, Idaho
JOHNNY ISAKSON, Georgia
ROBIN HAYES, North Carolina
ROB SIMMONS, Connecticut
MIKE ROGERS, Michigan
SHELLEY MOORE CAPITO, West Virginia
MARK STEVEN KIRK, Illinois
HENRY E, BROWN, JR, South Carolina
TIMOTHY V. JOHNSON, Illinois
BRIAN D. KERNS, Indiana
DENNIS R. REHBERG, Montana
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TODD RUSSELL PLATTS, Pennsylvania
MIKE FERGUSON, New Jersey
SAM GRAVES, Missouri
C.L. (BUTCH) OTTER, Idaho
MARK R. KENNEDY, Minnesota
JOHN ABNEY CULBERSON, Texas
BILL SHUSTER, Pennsylvania
VACANCY
JAMES L. OBERSTAR, Minnesota
NICK J. RAHALL II, West Virginia
ROBERT A. BORSKI, Pennsylvania
WILLIAM O. LIPINSKI, Illinois
PETER A. DeFAZIO, Oregon
BOB CLEMENT, Tennessee
JERRY F. COSTELLO, Illinois
ELEANOR HOLMES NORTON, District of Columbia
JERROLD NADLER, New York
ROBERT MENENDEZ, New Jersey
CORRINE BROWN, Florida
JAMES A. BARCIA, Michigan
BOB FILNER, California
EDDIE BERNICE JOHNSON, Texas
FRANK MASCARA, Pennsylvania
GENE TAYLOR, Mississippi
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JUANITA MILLENDER-MCDONALD, California
ELIJAH E. CUMMINGS, Maryland
EARL BLUMENAUER, Oregon
MAX SANDLIN, Texas
ELLEN O. TAUSCHER, California
BILL PASCRELL, JR., New Jersey
LEONARD L. BOSWELL, Iowa
JAMES P. MCGOVERN, Massachusetts
TIM HOLDEN, Pennsylvania
NICK LAMPSON, Texas
JOHN ELIAS BALDACCI, Maine
MARION BERRY, Arkansas
BRIAN BAIRD, Washington
SHELLEY BERKLEY, Nevada
BRAD CARSON, Oklahoma
JIM MATHESON, Utah
MICHAEL M. HONDA, California
RICK LARSEN, Washington
(ii)
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SUBCOMMITTEE ON WATER RESOURCES AND ENVIRONMENT
JOHN J. DUNCAN, Jr., Tennessee
SHERWOOD L. BOEHLERT, New York
WAYNE T. GILCHREST, Maryland
STEPHEN HORN, California
VERNON J. EHLERS, Michigan
STEVEN C. LaTOURETTE, Ohio
SUE W. KELLY, New York
RICHARD H. BAKER, Louisiana
ROBERT W. NEY, Ohio
RICHARD W. POMBO, California
DOUG BEREUTER, Nebraska
MICHAEL K. SIMPSON, Idaho
HENRY E. BROWN, Jr., South Carolina
BRIAN D. KERNS, Indiana
DENNIS R. REHBERG, Montana, Vice-Chair
C.L. (BUTCH) OTTER, Idaho
JOHN ABNEY CULBERSON, Texas
BILL SHUSTER, Pennsylvania
VACANCY
DON YOUNG, Alaska
(Ex Officio)
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PETER A. DeFAZIO, Oregon
ROBERT MENENDEZ, New Jersey
GENE TAYLOR, Mississippi
EARL BLUMENAUER, Oregon
JAMES P. McGOVERN, Massachusetts
NICK LAMPSON, Texas
BRIAN BAIRD, Washington
FRANK MASCARA, Pennsylvania
MARION BERRY, Arkansas
ROBERT A. BORSKI, Pennsylvania
BOB FILNER, California
EDDIE BERNICE JOHNSON, Texas
JUANITA MILLENDER-MCDONALD, California
BILL PASCRELL, Jr., New Jersey
MICHAEL M. HONDA, California
JAMES L. OBERSTAR, Minnesota
(Ex Officio)
(iii)
CONTENTS
TESTIMONY
Frank, Bobbie K., Executive Director, Wyoming Association of Conservation Districts, Cheyanne, Wyoming
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Harding, Russell J., Director, Michigan Department of Environmental Quality
Hill, Craig, Livestock Producer, Milo, Iowa
Nishida, Jane, Secretary, Maryland Department of the Environment, Baltimore, Maryland
Smith, Charles Martin, Cattle Producer and Attorney, Ocala, Florida
Smith, Hon. Nick, a Representative in Congress from Michigan
Spence, Terry, Unionville, Missouri
Walden, Hon. Greg, a Representative in Congress from Oregon
Walker, Dr. Forbes, Environmental Soils Specialist, Department of Plant and Soil Science University of Tennessee Agricultural Extension Service, Knoxville, Tennessee
PREPARED STATEMENTS SUBMITTED BY MEMBERS OF CONGRESS
Blumenauer, Hon. Earl, of Oregon
Otter, Hon. Butch, of Idaho
Smith, Hon. Nick, of Michigan
PREPARED STATEMENTS SUBMITTED BY WITNESSES
Frank, Bobbie K
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Harding, Russell J
Hill, Craig
Nishida, Jane
Smith, Charles Martin
Spence, Terry
Walker, Dr. Forbes
ADDITIONS TO THE RECORD
American Farm Bureau Federation, statement
American Horse Council, statement
National Cattlemen's Beef Association, statement
MANAGEMENT OPTIONS FOR CONCENTRATED ANIMAL FEEDING OPERATIONS
Wednesday, May 16, 2001
House of Representatives, Committee on Transportation and Infrastructure, Subcommittee on Water Resources and Environment, Washington, D.C.
The subcommittee met, pursuant to call, at 2:00 p.m. in room 2167, Rayburn House Office Building, Hon. John J. Duncan, Jr. [chairman of the subcommittee] presiding.
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Mr. DUNCAN. I call this hearing of the Water Resources and Environment Subcommittee to order. I want to welcome everyone here today.
Most of our hearings have a great many Members who show up and participate. But this topic is not what some people would describe as a sexy topic. So, we may not have as much participation today.
But in spite of that, I do think it is a very, very important subject and an important issue. I think certainly any Members who have farming operations in their districts should be concerned about this. I think anyone, even in the cities, who cares about or is concerned about the survival of small and even medium sized farms in this country should be concerned about this because we are talking about something that the EPA has come out with, I think I saw in one testimony, 400 pages of regulations.
This booklet is the proposed regulation. I don't know how many pages it is, but it is all those pages of fine small print and it is an extremely complicated, extremely difficult thing. So, it certainly raises some concerns on my part.
The subcommittee meets today to receive testimony on how farmers, State governments and the federal government are working to manage, as I said, a very important part of our national agricultural program, concentrated animal feeding operations.
In particular, witnesses will address the proposed Clean Water Regulations under consideration by the EPA.
We will be hearing first from our colleagues, Congressman Nick Smith of Michigan and Congressman Greg Walden of Oregon. They will be followed by a panel composed of farmers, State regulators and individuals who are working on plans to address these issues.
One of the primary questions that should be addressed is whether the States are in a better position to develop programs that will handle these issues than the federal government.
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The Clean Water Act only regulates point source discharges of pollutants. There is no Federal authority to regulate non-point sources. That authority is retained by the States.
While CAFO is a point source that is within the scope of the Federal regulatory scheme, most agricultural activities are classified as non-point sources. As EPA reduces the number of animals required to qualify as a CAFO and attempts to include within that those areas where manure is applied, more areas and facilities become subject to Federal regulation.
That is the real concern here today. Some of us feel that we already have so many rules and regulations and red tape on the books that we have not even designed a computer that can keep up with all of them, much less a human being.
Now, to talk about piling more and more regulations creates extreme difficulties for certain small farms and small business and even medium sized farms and business operations.
In the past few years attention has been given to the problem of excessive nutrients and the contribution of animal feeding operations to water quality programs. Since 1996, 12 States, including Maryland, have established new environmental regulations to address animal feeding operations.
Other States, including Michigan, have pursued non-regulatory approaches. We want to look at several questions here. Does the EPA have authority to control a farmer's use of manure in the field as a part of this rule?
Under the new rules EPA proposes to regulate releases to groundwater that have a direct connection to surface waters. Does the EPA have that authority? Who has the burden of showing such a connection does or does not exist? As a part of the public notice, EPA estimated that the proposed regulations will result in livestock production cost includes to animal feeding operators to $850 million to $940 million per year.
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These estimates were based on the EPA's use of USDA data. However, since the rule was proposed, the EPA has begun to discuss the estimates with the farmers and now acknowledges that its calculations may need significant revision and could be much, much more costly than that.
Of course, all of those costs ultimately have to be passed on to the consumer. That is a real concern of mine. The States may be better able to provide the staffing throughout the country and to address the site-specific problems. They may be in a much better position to address the broad variation that exists in industry practices, climate and hydrology.
We need to take a serious look at all of the issues surrounding this and make sure that these costs are not excessive. As I said earlier, my big concern is what we are doing to small and medium-sized farms in this country, not only with this, but also with many other things.
I had a very good hour-long meeting with Christine Todd Whitman five or six weeks ago when she first came in. I told her that what I hoped she would do is keep in mind the effect of every regulation, every rule that the EPA issued, the effect on small businesses and small farms and so forth, because it seems that so much of what we do in Washington helps out the big giants in any industry, because it drives out many of the small or medium-sized operations or forces them to merge. So, that is my concern when I see a whole booklet of regulations coming out like I just held up a few minutes ago.
So, with those words, I will stop and turn it over to the Ranking Member of the committee, my friend, Mr. DeFazio.
Mr. DEFAZIO. Thank you, Mr. Chairman.
I would like to welcome our colleagues here. If I step out during their statements, it is not to be impolite, but I have to be at a press conference at 2:30.
I think there are a lot of grounds for agreement here in that we all want to prevent pollution of our waterways and improve water quality. The question is: How do we best get there? I am often concerned with one-size-fits-all rules.
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I understand when the original rules were drafted at EPA that to some extent they were modeled on chicken farming on the Eastern Shore which doesn't have a heck of a lot to do with cattle ranching in Western Oregon, or Eastern Oregon for that matter. I represent Western Oregon, but the gentleman there represents mostly Eastern Oregon.
We live in an area where we have some desert and we have another area where we have basically rainforests. Even within our State it would be hard to come up with a prescriptive rule that would resolve these issues satisfactorily, a prescriptive rule, as opposed to going toward a goal-oriented rule, which is to keep the nitrates and the pollutants out of the public waters.
I think that we can do better in getting there. I think there is really a lot of potential for bipartisan agreement on this, looking at technical assistance grants and innovative technology. In my mind EPA would act a little bit more like OSHA and if I were engaged in CAFO activity, I could invite the EPA on to my property and they would be a resource to me and say, ''Well, someone who is in a similar situation and similar climate did this and did that. That is what worked. We want you to develop a plan here and we are going to come back and monitor the implementation of the plan.'' We can provide some technical assistance, ideally.
I don't know a rancher or a farmer in my State who would object to that sort of approach. But what happened in Oregon, and I believe Mr. Walden will address it, is that the first time any of these Federal officials were seen and the first time anybody was really aware that they were under this regulation was when some people showed up at the gate, wanted in and then started writing out the bills for the fines.
I just don't think that is a good way to get to this approach. We have approached a very contentious issue of salmon recovery in my State with a much more cooperative attitude. This is obviously an adjunct to that because some of these pollutants can impact salmon. Some of this would go to non-salmonoid waters. But I think that a similar approach would be better.
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So, I am pleased that the committee is holding this hearing. I am pleased that our colleagues are here. I hope we can find some grounds for agreement and ways to improve the program and to get to the goal which I think we all share of cleaner water.
Thank you, Mr. Chairman.
Mr. DUNCAN. Well, thank you, Mr. DeFazio. I share your desire that maybe we can come up with something a little better. I can tell you this: We need something that is a lot simpler and a lot less technical.
I can almost guarantee you that this was not produced by a farmer.
Do we have other members who wish to make opening statements at this time? Mr. Gilchrest.
Mr. GILCHREST. Just briefly, Mr. Chairman. I am not sure what Mr. Walden and Mr. Smith are going to testify to. I would certainly say that we need to encourage regional approaches to make agriculture not only sustainable in those regions, but also profitable so it can be sustainable and also the continued improvement of best management practices which many people are implementing now, so that the farmer downstream or the homeowner downstream or the fisherman downstream can continue to have access to clean water.
As far as municipalities are concerned, I look at some of this and we have to work through all of the kinks and the obstacles and everything else, but the municipalities, when we get to the areas of TMDLs, it is a stormwater issue. If we could understand how we could improve stormwater practices, so from the Wal-Mart or the highway, that stuff just doesn't run direct into the nearby stream or waterway.
I think all of us here are smart enough to figure out how we can keep those streams, waterways, bays, estuaries and groundwater clean. But we can't be talking past each other.
I thank the Chairman for this hearing.
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Mr. DUNCAN. Thank you very much.
Anyone else? Mr. Berry.
Mr. BERRY. Mr. Chairman, I want to thank you for holding this hearing today. I think we are all concerned about water quality and how it is going to impact this country.
I can tell you from personal experience, before I was in the Congress I served on the Arkansas Soil and Water Conservation Commission. We had a serious water pollution problem in Northwest Arkansas, where we have a high concentration of the poultry industry.
In 1991 and 1992, the Soil and Water Commission implemented a voluntary plan and an education plan where we enrolled every farmer in that area in Best Management Practices and we did not pass one law or one regulation and there was not one government official from one government agency that showed up ready to destroy a farmer over his practices.
We can document now that we successfully dealt with that pollution problem. I am pleased that we are having this hearing today and encourage the EPA and the new Administration to approach this problem in this way.
I can tell you that under the past Administration we can only hope it is going to be different now. EPA not only had attempted some un-scientific, non-transparent ways to deal with this problem in a political way and had tried to include as many things that were actually agriculture and make them point sources as they possibly could.
I would hope that today will be the beginning of bringing some reason to what EPA tries to do in this area.
Thank you, Mr. Chairman.
Mr. DUNCAN. Thank you very much, Mr. Berry.
Does someone else have a statement? Dr. Horn.
Mr. HORN. Mr. Chairman, I commend you for providing time for this particular issue of pesticides in farms going into our streams throughout America.
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I come from an urban area, although I grew up on a farm. In my urban area, I have mostly window boxes. We do have lawns with various pesticides. When that gets into the sewer system, the Los Angeles River has metal from various and sundry shops, little shops, large shops. It has just been, over the years, dumped in the river. It is dumped right in the Harbor of Long Beach and the Harbor of Los Angeles.
So, thank you. I am interested in this.
Mr. DUNCAN. Thank you very much.
Mr. Taylor, do you have any statement?
Mr. TAYLOR. I will wait until after the witnesses speak.
Mr. DUNCAN. Thank you.
Dr. Ehlers.
Mr. EHLERS. Thank you, Mr. Chairman. Just very briefly, I appreciate your holding this hearing. I just want to, as I have before, caution against us developing a system that is too proscriptive. I certainly think it is a problem we have to deal with. It has become a problem across the country.
But the answer to the problem for Michigan is far different than it is for Arizona. There is a difference in the water tables, difference in soils. So, I think it is very important that, although we developed a standard for this and may even suggest some solutions, we shouldn't proscribe them.
In other words, I don't think we should tell them to put diapers on the animals in the feedlots. But let them figure out their own solution. Thank you.
Mr. DUNCAN. Thank you very much.
Governor Otter.
Mr. OTTER. Thank you very much, Mr. Chairman.
With his permission, I would like to associate myself with Mr. Berry's remarks. How things can be accomplished for folks who truly are at ground zero and can accomplish those things and all those other speakers before me who have spoken to the unique idea of Washington doing nothing and allowing those folks at ground zero to work on the problem itself.
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Obviously, in Idaho the rules as planned right now would cause a tremendous problem. Long before we were ever asked to take a look at it ourselves. But I quite frankly believe that our agencies in the State of Idaho and the State of Oregon, Mr. Walden's group, which I have had the pleasure of operating several operations in, and still do, are adequately qualified and technically qualified to clean up their own problems and will do so.
So, I thank you, Mr. Chairman, for bringing attention to this. I hope the result of this meeting is to allow the States to act themselves.
Mr. DUNCAN. All right. Thank you very much.
Governor Rehberg or Mr. Brown?
Okay, thank you very much.
We are pleased to start off with a Members panel. We are very pleased and honored to have two good friends, the Honorable Nick Smith from Michigan and the Honorable Greg Walden from Oregon.
Gentlemen, the way we do in the subcommittees that I have chaired, we let the Members go ahead and make their statements. We do not ask questions of the Members because we know we have a chance to discuss these matters with you later on the Floor at different times. We know you have very business schedules and also we want to get to our other witnesses.
So, we will let you proceed with any statements that you wish to make at this time. Nick, we will start with you, please.
STATEMENT OF HON. NICK SMITH, A REPRESENTATIVE IN CONGRESS FROM MICHIGAN, AND HON. GREG WALDEN, A REPRESENTATIVE IN CONGRESS FROM OREGON
Mr. SMITH OF MICHIGAN. Mr. Chairman and Members of the Subcommittee, thank you very much. I think I agree with every comment that was made by you, Mr. Chairman, and you, Mr. DeFazio, and the membership.
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It is certainly a question that affects Michigan a great deal, that affects small farmers a great deal. As a dairy farmer from southern Michigan, and also serving on the Agricultural Committee here in the House, I have been very involved with the regulatory developments that affect nutrient management and water quality protection for livestock operations.
I am specifically concerned about the EPA proposed rules regulating the CAFOs that were released last December.
I would just like to share with you my views on these rules and why I believe they are a poor approach to water quality protection and especially an imposition on many farmers that are already doing the job in many States that are already accomplishing maybe even better goals.
I would like to bring to your attention legislation that I have introduced addressing State and Federal responsibilities for managing animal feeding operations.
My first concern with EPA rules though is for permitting of animal feeding operations is that they seem to be stretching the boundaries of Congressional intent with regard to the Clean Water Act. One of the major provisions in the Act was the establishment of a permitting system for point source pollution that discharged directly into surface waters.
It is very interesting, a review of the 1972 Senate Floor discussion between Senator Dole and Senator Muskie, I think, is worth reviewing. On the Clean Water Act, that discussion clearly illustrates that agriculture, industrial or any other operations in question were only to be considered point source if they discharged measurable amounts of waste to surface water from a distinguishable source such as a pipe or ditch.
Unfortunately, I think EPA has taken the single referral to CAFOs included in the Clean Water Act and developed an 800-page guideline detailing new regulations for livestock facilities, regardless of whether or not they discharge to surface water from a distinguishable source. It is questionable whether they even have the legal authority. Certainly, as was mentioned, if Congress had the ability to review regulations to see if they were consistent with Congressional intent, these CAFO EPA rules would not be before us.
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I think it is good to review just briefly the cost. EPA estimates $1 billion per year. Many believe that this cost will not be accompanied by improved water quality protection. I think it is reasonable to assume that we can get a much better return for our environmental protection dollar if we allow more authority for the States to implement these kinds of regulations that we now have in many States.
Furthermore, by their own admission, EPA cost estimates are probably understated because they assume that all farms are already in compliance with their strict interpretation of current regulations. What is really out there is overlooking thousands of farms that currently do not have discharge permits.
I believe, Mr. Chairman and Members of the Subcommittee, that there is a real danger. These compliance costs could regulate our animal production industry right out of the country or at the very least only leave the very big corporate giants in place.
Beyond the question of Congressional intent and the enormous cost of the EPA rules, I also believe there are several unreasonable provisions in the rules that make them unworkable. For instance, they eliminate the sensible permitting exemption that currently exists for operations that do not discharge waste except in the event of a 25-year, 24-hour storm event.
This zero discharge provision which will force, we have estimated, over 30,000 farms to obtain Federal pollution discharge permits, although many of them have never had a single discharge. Further, the rule would preempt many successful State water quality programs that address animal feeding operations.
Again, for example, in my State of Michigan we have established the Michigan Agricultural Environmental Insurance Program and I am sure that you are going to hear more of that from our DEQ Director, Russ Harding.
We are very proud of the level of water quality protection that our State has achieved and the efficiency with which it has been done. Not surprisingly, other States are now looking to the Michigan program as a model of successful animal waste management.
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Unfortunately, this program and other successful State level livestock waste management programs are threatened. Because the EPA proposal is an unfunded mandate, States will have to shift limited resources from existing programs in order to administer the discharge permits.
The permit in itself does little to protect water. There is a real concern that this bureaucratic shift could actually harm and not help water quality and that is a challenge for this committee, to make some of those evaluations.
In conclusion, I have introduced legislation that would allow animal waste management programs to be results-oriented rather than process-oriented. In my bill, H.R.1138, it simply provides flexibility so that State-run programs that effectively manage animal waste could be used as an alternative to EPA CAFO permitting, provided in the bill that water protection is not compromised. This approach has received strong support from numerous producer groups and State officials.
While there is always room for improvement, I believe that American farmers are among the most conscientious guardians of the environment. If we can achieve the same or even better results at a fraction of the cost, why not increase State and local input and ideas into animal waste management programs by providing the kind of State alternatives to EPA's, what I consider, over-zealous one-size-fits-all permitting that was mentioned by some of your Members of the Committee.
Mr. Chairman, thank you for this opportunity.
Mr. DUNCAN. Well, thank you very much, Nick. Thank you for offering to be with us and taking time out from your schedule. You are free to go now or you may stay as long as you wish. Greg, you may begin your statement.
Mr. WALDEN. Thank you, Mr. Chairman. I appreciate the opportunity to join you today. I thank you for holding this hearing. I appreciate your interest in this important issue and the opportunity to share some of my thoughts with you today.
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I would also like to thank my colleague, Mr. DeFazio, the Ranking Member of the Subcommittee, for his attention to this issue. We have discussed this for a period of months now about the problems confronting our cattle ranchers and others in Oregon, the differences between our basins and the effect of these proposed EPA rules and the way the existing ones are being enforced in the district.
My colleague, Mr. Gilchrest, your comments about stormwater are well taken. The problem I have in my State is the urban center of Portland discharges 2.8 billion gallons of run-off water when it rains every year into the Willamette River, which has its own TMDL, issues.
Meanwhile, I have cattle ranchers in eastern Oregon, one of whom this year was the subject of a very aggressive enforcement action by the EPA, when he thought he was working with the Agriculture Department to come into full compliance with the State's interpretation of the CAFO rules, the EPA showed up on his doorstep and fined him $50,000, after he had spent well over $100,000 reconfiguring his operation to come into compliance.
He actually thought when the EPA inspector showed up that they were part of the team he had been working with to come into compliance from the Agriculture Department. It created incredible hardship. He may well have filed for bankruptcy, I am not sure. But after you spend $100,000 trying to come into compliance and then have another agency come in on top, because Oregon had a little problem in how it was enforcing the rules—
Mr. GILCHREST. Would the gentleman yield?
Mr. WALDEN. Certainly.
Mr. GILCHREST. Is there some way when we have this bureaucratic mess-up that the Conservation Service, Department of Agriculture can sit down with EPA and say, well, you are not exactly doing it right. We are not going to fine you. You have been working on it. Let us see if we can help you out.
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Mr. WALDEN. We tried that. Frankly, the Oregon Extension Service has been very good, with their Extension Agents putting on seminars for ranchers all across Oregon. There have been literally hundreds and hundreds that have attended seminars to find out how they can stay in compliance, kind of the best farming practices concept that Mr. Berry referenced, same concept. They have had enormous turnout.
Those that needed some extra effort out of that, there were at least 50 last year that spent close to, I think the figure was $680,000 combined, to bring their operations up to the best standard. There is a real willingness to do that, but a great uncertainty about which master they have to serve, which officer they have to comply with.
When you think you are working in compliance with one government entity and another one comes in and tromps you and issues the fines, it creates a really, really bad feeling out there. So, that is where Congressman DeFazio and I have talked about in the State of Oregon under our implementation of the OSHA regulations, we create a safe harbor provision where employers can invite in consultants from the OSHA or OSHA to go through their facilities and say, 'where am I in compliance? Where am I out? I want to meet the rules. But, you know, we are not rule experts in small business.'
So, as long as you are trying to achieve that compliance, the other side of OSHA or OSHA that does the fining, can't come in and fine you during that period. So, there is a safe harbor where you can go figure out what the newest rules are and make sure you are in compliance and if you are not, put together a plan where you can come into compliance and have a window where they can't come in and fine you from the other side of the agency.
I would like to see that principle applied to these sorts of rules because I think at the heart most people I know in farming and small business would just as soon be in compliance. They don't want a fine. They don't want a ticket. They want to be in compliance.
But for gosh sakes, you have one agency one day hitting you with a new set of rules and then another agency. Every day, some new set of rules from some new agency comes down on top of you. It is impossible to run your business and keep up, especially as the Chairman pointed out, a 404-page document of new rules, some of which may be adopted or not.
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So anyway, I would like to see us and see your committee create some sort of safe harbor provision where you could help people come into compliance, come forward. Because that helps us achieve the goal of getting to clean water. Isn't that what we should be about, achieving a common goal of safe water, clean water, and farms that don't pollute.
You know, the numerous ranchers and farmers in my district care deeply about the land. It is their home. They work it every day, in many cases for decades if not generations. To abuse the water and land would be shortsighted and foolish. They know it. In fact the vast majority of farmers and ranchers in eastern Oregon are very law-abiding citizens who are sound stewards of the land who do their best to comply with the laws and rules that accompany there livelihood.
However, with any industry and field of employment, there will always be a few bad apples who ignore Federal laws and rules. They should not be immune from legal accountability. But the EPA needs to publicly recognize the vast majority of our ranchers and farmers deserve to be treated fairly, not penalized based upon the bad actions of a few.
The federal government needs to understand that America's ranchers and farmers are a strong partner in achieving the desired end result of CAFO regulations, clean water, because it is in their best interest to do so. As a matter of fact, I would like to see greater flexibility in other Federal laws.
We have, as you know, an enormous effort under way at salmon recovery, in fact in the Resources Committee today you joined us in voting for additional authorization for salmon recovery efforts based on local processes. Too often in our efforts to get to the Endangered Species Act requirements and do the kind of restoration work that needs to happen, we try to meet a Federal goal that keeps moving on us and you get enforcement regulations and a conflict among the agencies that results in nothing happening on the ground.
Yet, where we can have these local decisions, this local process, we are doing incredible things. I would be glad some day when we have more time to share some of that with you. There is some excellent work going on on the ground. We need to get the Federal agencies to recognize that and support it.
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Regarding EPA's proposed CAFO rules, I have had several conversations recently with many involved in the ranching and farming industry in Oregon about their concerns. It appears there needs to be considerable thought given to any proposed changes. Most importantly, we need to know exactly what is to be gained by changing the existing standards.
I have been told about the 404 pages of proposed rules changes, the additional costs that are to be mandated and about a nebulous environmental gain from these proposed actions. Some in the industry estimate 2500 operators in Oregon currently defined as CAFOs could grow to as many as 39,000 and that this proposal could force many operators to simply halt production in their smaller lots, as my colleague, Mr. Smith, pointed out as well.
The end result would be fewer and bigger lots. I would like confirmation from EPA that this is the goal they aim to achieve, and I will pose this question to the EPA.
Many also tell me they are currently having trouble surviving the regulatory burden and that the additional costs of the proposed rules could force smaller operations to fold.
Again, these additional costs associated with complying with the proposed rules must be carefully weighted with the perceived environmental gain.
I look forward to posing these concerns and a number of others to the EPA. I also think that it is time to take a new look at how we enforce capital standards.
As I mentioned, Mr. DeFazio and I have discussed several ways to achieve the desired end results for CAFOs and I believe we have a promising idea with legislation I would like to see us finish drafting and move forward on to create this is safe harbor provision. It works in other areas of our laws where we implement Federal goals. I think it would work here.
I appreciate your attention to this matter and look forward to working with you, Mr. Chairman.
Mr. DUNCAN. Thank you very much. Both of you have done an outstanding job describing the problem. As I said at the beginning of this hearing, my main concern is that I don't want to drive more small or even medium-sized farms and ranches out of existence or force them to merge and just end up with nothing but big giants in the industry.
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I agree with you, Mr. Walden, already these farmers have so many rules and regulations they have to comply with. Then you come in with 400 pages more of fine small print and thousands of more farms and ranches. I am telling you, you are going to put another nail in the coffin of many of these smaller or medium-sized operators.
That is what we are going to try to call attention to and to see if we can in some way avoid. Thank you very much for being with us. We need to move on to our panel.
Mr. GILCHREST. Mr. Chairman, very quickly, if I might, if you had your druthers as a farmer, would you like to see EPA come up with a standard which has science behind it, because some of us have wondered sometimes if they have any science and I am going to be putting a bill in in the next couple of weeks to do that.
What about the Federal agencies who go on the farmer's farm? Which one of those would you rather have enforcing it?
Mr. SMITH OF MICHIGAN. I will give just a quick response. Some of what is happening in Michigan is EPA officials come out from Chicago. Under the Clean Water Act, if someone gives a formal complaint, they are obligated to go check. They come walking on the farm without, in one case, telling the farm owner what they are doing and later they indicated they have the legal responsibility and right to do that, simply to come on this farm and starting looking at particular violations.
For those of you familiar with dairy farming and the pre-cooling of milk by this particular dairy farm that was pumping water from the ground and then running the milk through the radiator to pre-cool it be it went into the cooler, it was listed as a technical violation because they were discharging the water back on the land at a warmer temperature than it came out of the ground.
So, they become very technical going by the specifics of the regulations and it is a huge imposition inasmuch as every State is different.
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Mr. GILCHREST. So, you are saying based on the particular product those inspectors come, in the case of milk or in the case of butchering or whatever.
Mr. SMITH OF MICHIGAN. Well, this is an aggressive community, sometimes, that is looking for any violation they might see, especially on livestock operations. So they have an organized effort quite often in many areas to make an official complaint and then that official complaint results in sometimes-huge costs to these farmers that doesn't really improve water production.
Mr. GILCHREST. So, there is no reason then for picking any particular agency? It depends on what they are doing.
Mr. SMITH OF MICHIGAN. Yes.
Mr. WALDEN. May I respond to that as well, Mr. Chairman?
Mr. DUNCAN. Very briefly. We have to get on to the regular panel, Greg.
Mr. WALDEN. I would prefer to see the delegation of authority down to the State level and then probably the departments of agriculture be the ones involved in this in terms of meeting the goal.
Mr. DUNCAN. Thank you very much for being with us.
We will now go the panel of witnesses that we have requested to be with us today. We have a very fine panel of farmers, experts and people directly involved in this very important issue.
I would ask that they take their seats at the witness table at this time. We have Mr. Craig Hill from Milo, Iowa; Mr. Charles Martin Smith from Ocala, Florida; Mr. Terry Spence from Unionville, Missouri; and Dr. Forbes R. Walker who is with the Department of Plant and Soil Science at the University of Tennessee in my hometown of Knoxville.
The Wyoming Association of Conservation Districts is represented today by Ms. Bobbie K. Frank, the Executive Director, from Cheyenne, Wyoming; Ms. Jane Nishida who is Secretary for the Maryland Department of the Environment from Baltimore and finally, we have the Director of the Michigan Department of Environmental Quality, Mr. Russell J. Harding from Lansing, Michigan.
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I can tell you that we certainly appreciate all of you being with us here today and taking time out from your busy schedules to be with us. We always proceed in the order in which the witnesses are listed on the call of the hearing. So, Mr. Hill, that means we will start with you.
My mother is originally from Iowa and I have a lot of relatives out there, even still today. We are glad to have you with us. You may begin your statement.
STATEMENTS OF CRAIG HILL, LIVESTOCK PRODUCER, MILO, IOWA; CHARLES MARTIN SMITH, CATTLE PRODUCER AND ATTORNEY, OCALA, FLORIDA; TERRY SPENCE, UNIONVILLE, MISSOURI; DR. FORBES WALKER, ENVIRONMENTAL SOILS SPECIALIST, DEPARTMENT OF PLANT AND SOIL SCIENCE, UNIVERSITY OF TENNESSEE AGRICULTURAL EXTENSION SERVICE, KNOXVILLE, TENNESSEE; BOBBIE K. FRANK, EXECUTIVE DIRECTOR, WYOMING ASSOCIATION OF CONSERVATION DISTRICTS, CHEYENNE, WYOMING; JANE NISHIDA, SECRETARY, MARYLAND DEPARTMENT OF THE ENVIRONMENT, BALTIMORE, MARYLAND; AND RUSSELL J. HARDING, DIRECTOR, MICHIGAN DEPARTMENT OF ENVIRONMENTAL QUALITY
Mr. HILL. Good afternoon. My name is Craig Hill. I am a livestock producer from near Milo, Iowa. My wife, Patty, and I produce about 1100 acres of corn and soybeans in Iowa. We feed most all of the grain that we produce to livestock.
I appreciate the opportunity to be here today to talk with you about the impact of EPA's proposed new regulations on livestock producers and why I believe this additional layer of regulation is not needed.
We have a farrow to finish operation, which means that we grow hogs in all phases of the production cycle, including breeding, farrowing, growing, finishing and marketing. We have 250 sows that we farrow to finish. We produce about 4,500 hogs per year.
Pork production is a risky, low-margin business. At one time pork production in Iowa was considered the mortgage lifter. It was a profitable, labor-intensive business. The young producers could buy a farm and make the farm pay with pork production.
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I still am an independent pork producer, which means I am not aligned or contracted with any one packer. I look for competitive bids to market my animals. I am somewhat of a dying breed in that sense.
I have added another building in the last year. This building was an expansion in a way, but more than an expansion, it was a way for me to take the livestock that I was growing outdoors on concrete lots and move those indoors into confined facilities that have technologies that capture the nutrients and capture the waste under the building below the slats.
Iowa law precludes any farm operation in Iowa to discharge effluent into the waters of the State. In Iowa also, we have recently passed the 1996 Comprehensive Livestock Regulatory Bill that adds layers and layers of additional regulations on Iowa producers. This legislation was debated for years. The commodity organizations, the farm organizations, legislators, all worked to consensus agreement on how to best care for the environment and not damage our industry.
Iowa is number one in hog production in the U.S. We are number one in egg production, which is something new. We have risen from five, four, three, two to number one.
We are seventh in cattle production. That is a decline from where we stood before. We are 11th in dairy production. It may surprise you to know that we have remained rather consistent in the number of livestock marketed and produced over the last 50 years in Iowa. In 1950 Iowa farmers raised about 23 million hogs per year. Today, Iowa farmers raise about 23 million hogs.
Now, today's perception is that we are less environmentally sound because there are fewer farmers producing these hogs. The perception is that confined facilities are more environmentally damaging than outside pens used by farmers 50 years ago. This perception is that there is more waste today than there was 50 years ago. This perception is wrong.
First, let me begin with the 1950s. It took about 425 pounds of feed to produce 100 pounds of pork. Today it takes less than 300 pounds of feed to produce 100 pounds of pork. That is greater than a 25 percent reduction in the amount of feed fed and correlates into more than that in a reduction in the amount of waste produced.
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Secondly, I have raised hogs all my life. Every day we would spend two or three hours, when I was young, with a shovel. Many of you may have done the same. We would, by hand, remove that manure from the feed logs, the concrete floors of the buildings, and we would haul it out to the fields.
This is a year-round, seven day a week job. Whether you were planting or you were tilling the soil or whether you were in the middle of the summer with growing crops, you would find a place to haul the manure.
This was something that most of us didn't enjoy. But it was a way of life. It was what we did. If you will notice in the older Iowa farmsteads, you will see that most of the feedlots were built on the top of a ridge or next to the barn where the drainage off the roof of the barn would go across the feed lot. That was intentional. That was because it was quite pleasing to go out in the morning after an inch and a half rain and find that all that waste had disappeared. We didn't have to shovel it. That was the way we used to farm. It is not the way we farm today.
Each adaptation and each technology improvement that I have made in my operation has made me more environmentally sound. We may have had ten hog farms in a township each producing 500 head per year. Today, that township probably has only one hog farm producing 5,000 head per year.
But we are better today environmentally than we were then. Now, I don't relish the change that we have seen. I don't relish the fact that we have lost producers, but we have to be proudful that we have made the gains that we have.
My operation has more control over the manure that we produce than it ever has before and regulations did not cause this. This was done by producers understanding the economics and the value of the manure. We understand good animal husbandry. We understand efficiency. We understand stewardship. It has all been connected to get us to where we are today. It has not been completed by regulation.
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EPA views this important byproduct of meat production as a waste, not a resource. The regulations will not help the future of agriculture; they will hinder it. EPA is recommending duplicative and costly regulation to improve the environment. It makes these recommendations with little understanding of what is already occurring within the State and how producers raise and market livestock.
The State of Iowa has a comprehensive regulatory program that is designed to allow livestock producers to flourish with an environmentally sound framework.
One size fits all solutions may seem attractive and may seem rational from Washington but it is very harmful to Iowa's pork producers. What we are doing today is working well for us.
I want to thank you for the opportunity to testify today. I left some time that I hopefully could respond to questions.
Mr. DUNCAN. Thank you very much, Mr. Hill. You mentioned the seven-day a week job. I can tell you, I have always marveled at the fact that the most full-time farmers have to work seven days a week in an around-the-clock type of job.
Then I marvel even more at so many farmers who have to work at full-time jobs off the farm to support the farm and then come and work more than full time trying to keep their farms going.
What we are doing on the time, we have asked all the witnesses to give five-minute statements. We are going to let you go to six minutes, but then I will waive this or stop you. We do that in fairness to the other witnesses.
So, Mr. Smith, you are next.
Mr. SMITH. Thank you very much, Mr. Chairman. My name is Marty Smith. I am a cattle rancher and also an attorney from Ocala, Florida. Mr. Duncan, as you indicated, I am one of those ranchers or farmers who had to get some outside employment to be able to afford to continue in the business. So, I appreciate what you say.
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Thank you very much for holding this hearing today and for paying some attention to this proposed regulation that we are all faced with throughout agriculture and particularly with the livestock sector.
As a number of you pointed out in your comments preceding this hearing, this proposed regulation greatly expands the jurisdiction of EPA over production agriculture. It gets into a lot of these non-point source areas that are typically outside of the Clean Water Act.
I do want to comment, too, a little bit about the costs associated with this. I think you mentioned that in some of your remarks.
These are costs that unfortunately really cannot be passed on by agriculture to the consumer. We are in the position of being price takers for our commodities. We can't just raise the price to pass these along.
The other problem that we face is that, you know, if you go to borrow money in agriculture or in any business, you have to be able to show some return for it.
With these kinds of pollution control measures mandated by EPA, we don't have that opportunity to go to the bank and say, 'Well, we are going to be producing this much more as a result of this expenditure.'
It is hard enough sometimes to borrow money in agriculture, as it is for things that may be productive. But when you have something that is not productive, it is going to be next to impossible.
The result, of course, of that, as many of you pointed out is that it is going to take a lot of small producers out of business. You talked a little bit about the reduction in the threshold numbers proposed by EPA, bringing it down from 1,000 head maybe as low as 300.
At the same time EPA says that is what they want to do. They also point out that the trend in the industry that they are concerned with is toward larger and more concentrated operations. Well, the net result of this rule, if it goes as being proposed here, is going to take the smaller producers out of business. It is not going to impact the larger producers. In other words, the exact opposite from the trend that they say they are concerned about.
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Many other things that they are talking about doing will likewise be counter-productive and really unachievable.
As a lawyer, I have practiced in this area representing farms and ranches with environmental issues for the past 15 years. One of the things that you all talked about a little bit was they are trying to bring in now hydrologic connection to ground water and actually take jurisdiction over ground water under the Clean Water Act.
Not only is that outside of their typical jurisdiction or jurisdiction granted to them by Congress, but it is impossible in large areas of the country to achieve.
Where I am from in Florida and throughout most of the coastal plain States, we have what we call coarse geology, that is, porous limestone. By definition, there is going to be some conduit between the surface and the groundwater.
Having litigated some of these cases on behalf of ranchers, you simply can't prove that. What you do have to prove, and what we are able to show is that we are going to take care of all the nutrients in the surface layer and never let it get to ground water.
Again, I think that is just a lack of understanding, perhaps, on their part and really not understanding what goes on out in the country and what the States have done to address some of these issues.
Mr. Gilchrest, you mentioned, I believe, talked a little bit about best management practices. I think that is one of the best things that a lot of States have focused on doing. I was President of the Florida Cattlemen's Association several years ago when we instituted and started to develop best management practices. With the cooperation of our State water quality group and our Water Management District we were able to do that.
We undertook that project and paid for it out of our own association. We did not ask for any government funding. We did it because it was the right thing to do. It has been very successful. We are going around now and trying to educate people, educate ranchers. It has been well received throughout the country.
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A lot of other States have done likewise, again, not as a result of regulation or not at the direction of some governmental agency, but because it was needed. It was the right thing to do.
What EPA proposes by bringing everybody under a permit system doesn't achieve those same kinds of goals. In fact, I think many of you have pointed out and recognized that there are not going to be a whole lot of measurable increases in water quality as a result of what they are doing.
Several other areas that I will briefly touch on where they are expanding their jurisdiction, one of them is co-permitting where they are trying to bring in all types of operators, anybody that may have any connection to the feeding of cattle, for instance, would be required to have a permit.
One of the changes in our industry, Mr. Hill mentioned that he was an independent pork producer. We don't have the vertical integration in the cattle business that they do in the pork business, but we do, a lot of us that are cow-calf producers like myself; retain ownership into the feedlot.
We actually have no control. We enter into a contract with the feed yard to feed the cattle for us, but we still own them. This would require each of us to have separate permits.
At the same time, something that we have no control over, it is treated differently, in other words, than any other industry out there.
One of the other major concerns with what EPA is doing here is they are presuming sort of as a foundation to this that each owner of any kind of livestock is doing something wrong, that we are polluting. They presume that until we can prove otherwise.
One of the difficulties with this permit scheme that they have developed is the cost of proving that you don't have to have a permit is actually going to be about the same as getting the permit.
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For that, you get anything in return except you have spent all of your money trying to prove you don't need something. That is treating us differently than any of the other potential polluters or any of the other industry out there.
To ranchers and other people in agriculture throughout this country, our land and our water are really the most precious and valuable resources that we have. The bulk of our assets are tied up, in fact, in that real estate. If something is wrong with the real estate and something is wrong with the water, we are hurting our own selves and we are not going to do that.
This proposed regulation really assumes the opposite, that we want to hurt something or cause damage to something that is most precious to us.
I appreciate again this committee paying attention to this. We really look forward to working with some of these governmental agencies to develop better programs. That is better done at the State and local level. Where that has been done throughout the country it has been successful and will continue to be that way.
Thank you.
[The prepared statement of Mr. Smith follows:]
Mr. DUNCAN. Thank you very much, Mr. Smith. Those are very good points and very fine testimony.
Mr. Spence.
Mr. SPENCE. Mr. Chairman and members of the subcommittee, my name is Terry Spence. I own and operate a 400-acre livestock farm in northeast Missouri, in Putnam County.
Over the years my farm has been a diversified operation, raising beef, swine, dairy, poultry and crops, all of which was common practice through the midwestern states.
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At the present time my operation consists primarily of a beef cow-calf herd operation and hay and pastureland. Missouri has been no exception when talking about the CAFOs and the issues that we are talking about here today.
I got ahead of myself. I appreciate the opportunity to be here today, to be before the committee.
The consolidation and the concentration of the livestock industry into fewer and fewer hands has left the nation's landscape dotted with large concentrated animal feeding operations.
Large-scale feed lots are causing huge environmental disasters because of the massive amount of waste they generate, store and dispose of in a manner that has raised significant concerns about public health, environmental degradation in rural communities.
Missouri, the State that I come from, has been no exception when talking about disasters related to CAFOs. Eighteen of Missouri's 19 largest factory farms have been charged with violating the water pollution control laws and other environmental laws.
One of Missouri's operations, Premium Standard Farms, now majority owned by Continental Grain, is located in Mercer, Putnam and Sullivan Counties in northeast Missouri. Over 2.5 million hogs are raised in this concentrated geographic area each year. In one month, in 1995, Premium Standard Farms' facilities were responsible for six manure spills, killing over 180,000 fish and contaminating miles and miles of stream and creek beds.
From March 1997 until July 1998, Premium Standard Farms had at least 20 more spills polluting Missouri's streams with more than a quarter million gallons of manure and urine.
In 1999 alone, Premium Standard Farms' facilities were responsible for 25 more waste spills. The reason I am referencing this operation is because one of their facilities, which houses 80,000 head, is within a mile and a half of my property.
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I know from six years' experience that the impacts of these operations are having on a daily basis to the health of the rural communities in which they operate.
The majority of the spills that I referenced earlier took place at the facility right next to my farm.
While large manure spills from the lagoons attract public attention, on-going pollution problems are a lot of times not even noticed. Large lagoons are currently allowed, under several State and Federal standards, to seep or leak one-eighth to one-quarter of an inch per day, totally hundreds of thousands of gallons per lagoon and still be under no discharge permit.
Many traditional family farms have sufficient acreage to accommodate the waste from the farm's livestocks. The nutrients and animal manure are beneficial fertilizer for sustainable family farms when applied at rates that the crops or forage can accommodate.
While sustainable family farmers and ranchers consider manure for their livestock as an asset or benefit for production, the industrial factory farm considers the effluent a byproduct that is burdensome and costly to their production.
Most CAFOs do not have sufficient land to apply their large amount of effluent that they generate, so over-application is common, leaving saturated soils, nutrient build-up, leaching onto groundwater and run-off into waterways and streams in the immediate area.
In my opinion, we have reached critical mass in this country in relationship to concentrated animal feeding operations. The U.S. EPA has had the statutory and regulatory authority for 20 years to deal with the problems arising from this concentration of animal factory farms and the inadequate methods used by the factory farm system for dealing with its wastes.
EPA has granted primacy to most States to administer the NPDES permit under State law with the EPA having oversight of the program. Somewhere along the line the oversight and guidance got lost. Some States have left CAFOs virtually unregulated.
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I have been involved with CAFO issues for the last eight years with the Missouri Department of Natural Resources, the Water Pollution Control Program and the Clean Water Commission, as well as the U.S. EPA.
It is not hard to understand why we are in the national dilemma we are in today. With the proper oversight and enforcement by the Federal EPA, the problems this country is facing today would not be as significant as they are.
EPA's new proposed regulations have made some improvements on certain issues, but there is still uncertainty with regards to resolving the national pollution problems that exist.
As a family farmer, I am very concerned about what is happening in the agricultural world. The heritage of the American family farmer has played a vital role in providing an abundance of quality farm products, which in turn support strong, healthy rural communities all across this country.
The stewardship by family farms in regard to the land, their animals and community is something that over the century we as farmers have taken pride in. But in recent years the pride is being replaced by disgust and anguish over polluting factory farm production.
Since the industrialization of agriculture has taken place, the main focus of State and Federal agencies have been directed on how to subsidize corporate entities through taxpayers' dollars, subsidies that promote and foster the devastation and destruction that is caused by huge CAFOs.
The environmental public health harms imposed on rural communities by CAFOs are compounded by the fact that many factory farm facilities operate in a vertical integrated system in which the livestock and poultry processors have gained control of the market access by consolidation of processing facilities.
Family farmers can produce quality livestock more efficiently than a CAFOs, with little or no negative impacts to the environment and which benefit the regional and local economies. But many farmers and ranchers who do not want to produce in the factory farm system are denied access to the markets by large-scale CAFOs.
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Many consumers want quality meats and they want assurances that the meats they purchase are sustainably raised. Family farmers without access to current markets are beginning to rely on the traditional process of selling directly to consumers.
In summary, there are many sustainable systems and practices for the production of livestock and poultry. These alternative systems are economically viable and competitive with CAFO production.
If the CAFOs are required to bear the full cost of water pollution control and the other environmental and public health measures necessary to deal with the harms that they generate, the farmers and ranchers using sustainable production methods and systems have a genuine concern for the land and resources, as well as the welfare of the animals they produce.
I know I am running over time, Mr. Chairman, so I will stop with that. I thank you very much.
Mr. DUNCAN. Thank you very much, Mr. Spence. I can assure you that I don't have the same concerns about regulating an extremely large operations like the 80,000 head operation that you mentioned. What my concern is regulating out of existence many of the small operations that are already having too much regulation or barely hanging on as it is.
Next, I would like to introduce one of my bosses, Dr. Forbes R. Walker from the University of Tennessee. Dr. Walker, you may begin your statement. Thank you very much for being with us.
Dr. WALKER. Thank you very much. Chairman Duncan, Members of the Subcommittee on Water Resources and the Environment, I would like to thank you all for giving me this opportunity to speak today on the topic of management options for CAFOs and to make some comments on the proposed rules and regulations.
I would appreciate it if you would enter my written comments into the record.
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In the interest of time, I would just like to summarize a few of my main points. As Congressman Duncan mentioned, my name is Forbes Walker. I am an environmental soil specialist with the University of Tennessee Agricultural Extension Service.
Part of my job as an environmental soil specialist is to translate documents like these into plain English and talk to farmers about them and assist them with how to comply with the rules and regulations. I will get to the comments on this particular document a little later in my discussion.
I think we can all agree that clean water is a very important thing. I think no one in the room or anywhere else would say that we don't want to have clean water. Clean water is especially important to agriculture and it is especially important to livestock producers whose livelihoods depend on having clean water.
There have been recent changes in agriculture, especially in the livestock industry. In the last few decades we have moved away from more or less a closed system of agricultural production whereby feed and forage is grown in the same locality or on the same farm as the animals are produced to one where the feed is often produced many miles away from where the animals are produced.
This has improved the economics of production, but it has left us with the potential challenge of dealing with the concentration of the animal manures and poultry litters and the nutrients contained in those manures and poultry litters.
This topic has been addressed many times around the nation. Groups of experts from academia, from industry, from government have met at various workshops and seminars to discuss this issue. Pretty much the conclusions from those types of meetings are very similar.
I would like to draw the Members' attention to a summary of a document, which was released last August by the Joint Institute for Energy and the Environment. This was a three-day workshop, experts from around the nation and two of the main four conclusions of the particular workshop were that we need to adjust our pricing policy to include the cost of environmental compliance and manure management into the cost of our food.
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There was also a great need seen to increase funding for research and development efforts to move existing technologies that have been developed into the market place. This is just one particular document. There are many similar type documents available.
As has been alluded to by various Members, there are some concerns in some area of the country, however there are many technologies which have been developed and are available which can dramatically reduce the impact that manures and poultry litters have on the environment.
Congressman Berry from Arkansas mentioned the concerns they had in northwest Arkansas about phosphorus from chicken litters potentially polluting the environment. There are now many different technologies that have been developed whereby we can increase the availability of the phosphorus in animal feed and thereby reduce the amount of phosphorus that is excreted by animals.
We can also add enzymes to the feed to make the phosphorus more available, also reducing the amount of phosphorus that is excreted.
We have also got available to us amendments we can add to our litter to make the phosphorus less soluble and therefore less of a problem for our water sources.
Now, I would like to make a few comments on the EPA proposed rules and regulations. These, as Congressman Duncan mentioned, were released sometime in December. The EPA has gone through a period of public hearings earlier on this year. I attended a public hearing in Chattanooga in late March.
I consider myself vaguely familiar with the rules and regulations and some of the implications. For the record, I would like to mention that I found that public hearing not what it was supposed to be, ''educating the public on the particular rules and regulations.'' I felt it did not do that. I felt it was more for the benefit of the EPA to say that it held a public hearing than actually to educate the public on these proposed rules and regulations.
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Now, I would like to make a few comments on the rules and regulations. I would like to comment in three particular areas. First, on the proposed changes to redefine a concentrated animal feeding operation. Then I would like to talk a bit about nutrient management plans. Finally, I would like to talk about some of the costs that EPA is suggesting.
The document that sits in front of me is suggesting that we either move to a two-or three-tier system of defining concentrated animal feeding operations. Under both scenarios, we are going to be reducing the threshold for animal numbers and thereby increasing the potential number of CAFOs. This is obviously something that we need to take great consideration of because it is going to have major cost implications.
I also find that the EPA document is a fairly gross under-estimate of the number of CAFOs, which would be classified under each particular scheme. From our own estimates at the University of Tennessee, we are seeing EPA numbers of about half what we anticipate, the minimum numbers for only one sector, the poultry sector, not considering the swine sector and the dairy sector.
This whole issue of having either a two-or a three-tier system is also causing a lot of people some concerns if they wish to expand or to relocate and establish new operations. They really don't know which type of system they need to be playing under and which type of system they need to be planning under.
Now, a few things about nutrient management plans. This is an area, as a soil scientist, that I have been fairly heavily involved with. I fully support the need for producers to have and use and develop nutrient management plans, but I question the reason why we need to actually mandate them.
Nutrient management plans are basically a field-by-field estimation of the type of nutrients that we are going to need in the field, depending on the crop and the soil type. We also balance this with the sources of nutrients, including nutrients from manures, nutrients from fertilizers and from other organic sources.
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When we come to estimating nutrients from manures, the precision that we can achieve is rather less than the precision that we can achieve with commercial inorganic fertilizers. I have some concerns about the expectations of the EPA in the precision that we can get from these nutrient management plans compared with a nutrient management plan that we might have with an inorganic fertilizer.
There are also some other rather concerning proposals in the Federal Register here. There was a proposal that any non-CAFO farmer taking 12 tons of manure or more could potentially become a CAFO. Twelve tons of manure is basically one or two trailer loads of poultry litter. I don't think any row crop farmer would want to go through all the hoops and regulations to become a CAFO just to use one or two trailer-loads of fertilizer.
I will move on quickly to a few other comments on some of the other costs, the costs that the EPA is mentioning. Doing some rough calculations, some extrapolations of some of the numbers here, we are looking at about $8,500 for your average poultry farmer to comply with the costs of compliance.
Talking to our poultry specialist at Tennessee, $6,000 or $7,000 is the net return on a house for an average poultry farmer in Tennessee. So, effectively you are going to be penalizing the small guys, pushing them out of business and encouraging the large people to get larger with the economies of scale that they could get.
In summary, I think we can all agree that we do need clean water. I think these proposed rules and regulations are more of a big stick to the small producer and an encouragement for the larger producer to get larger.
If these rules do go forward, we are going to need a lot more money to educate people, to train people with agencies such as the Cooperative Extension Service in each State as well as the NRCS and other agencies.
I think the American farmer has been very good, as has been mentioned earlier. If you give them the appropriate technologies they will use them. A great example of how appropriate technology has helped agriculture in Tennessee and water quality in Tennessee has been the development of no-till technologies. Farmers have dramatically reduced the amount of erosion, the amount of sedimentation that has gone to our waters. That was done through assisting farmers with technology, not through regulation.
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Thank you, Mr. Chairman.
Mr. DUNCAN. Thank you very much, Dr. Walker.
Ms. Frank.
Ms. FRANK. Thank you, Mr. Chairman and Members of the Committee.
My name is Bobbie Frank. I am the Executive Director of the Wyoming Association of Conservation Districts. I am here representing our 34 local districts which are local units of government that are specifically charged in Wyoming by State statute with natural resource conservation including water quality protection while stabilizing farming and ranching operations and protecting their local tax base.
I appreciate the opportunity, Mr. Chairman and Members of the Subcommittee, to bring a little western flavor and information to you on what is occurring in our State, at least, and I am sure in many others.
First of all, I would like to tell you that we do need help out in the country. But the form of that help we do not need is more Federal regulations for our livestock producers.
Our landowners want to do the right thing for the resource. They have to. It is part of their business operation. We have a program in Wyoming that we have been implementing in conjunction with our Wyoming Department of Agriculture, our Wyoming Department of Environmental Quality, our livestock organizations, our University of Wyoming, where we are delivering the education and information necessary for the producers to understand the issue in the first place, as well as providing technical and financial assistance for producers to do the right thing. They do want to do the right thing.
In Wyoming, our DEQ is the permitted authority, the Department of Environmental Quality. They do permit the larger 1,000 animal unit operations in our State. Our main concern, and certainly my comments today on the proposed regs and our recommendation is aimed at the smaller and middle-sized operation which make up the majority of agriculture in Wyoming, which is the third leading industry.
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I would like to give you an example of a few of the families in Wyoming that have taken the initiative to do the right thing and protect the resources and comply with the regulations. We have three examples that I would like to share with you today that will describe virtually all of the ranch operations in Wyoming.
We are mainly cow-calf, sheep operators, some very small. There is some feeding and a few hog operations in our State.
Miles Land and Livestock is a family operation owned by Jim and Peggy Price in Casper, Wyoming, out near Alcova, run by Jim and Peg Price and their four daughters. Last year they completely relocated calving facilities that were located near the North Platte River. Those calving facilities were put there in 1925. That project cost them over $100,000.
Jim and Jeanne Anderson, who are sheep operators in Tensleep, Wyoming, had a lambing facility built in 1950 near a cold-water trout fishery in Tensleep, Wyoming. That family as well spent over $100,000 relocating that facility.
A little farmer named Mr. Roy Hitt in Wheatland, Wyoming, 72 years old, has a little cow-calf operation, partially relocated corrals. He has a fishing pond on his place that serves as the local fishing hole for all the kids in Wheatland. He partially relocated that and spent near $30,000 to do so, to make sure that he is doing his part.
The sad thing about today's proposed regulations is that we would have to go back to all of those producers and tell them they haven't quite done enough. Not one of them would be able to pass the certification as proposed to today's rules. But from a conservation and environmental protection perspective, we believe they have more than done an adequate job to provide protection for the resource.
What I described again describes nearly every operation in Wyoming. We have a lot of mid-and small-sized operations. When it takes a 300-cow operation just to have an economic unit to try to support a family and even then a spouse is working off the ranch, those are the people who we are talking about regulating en masse.
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We have gone over 7,000 miles in our State to educate over 1,000 producers to date. The projects that I described to you, we have over 60 similar projects in varying degrees and we have had over 200 requests from livestock producers in our State for technical assistance from our local Natural Resource Conservation Service field offices.
Our challenge is that we cannot currently meet that demand. We have producers who want to do the right thing. We can't get the help to them in terms of planning assistance.
Additionally, and my last comment is, I believe that certainly in Wyoming and other States as was mentioned earlier, the States and the local governments and the livestock producers working together will do the right thing, are doing the right thing and they do need the assistance.
Today's proposed regs, if they were passed as proposed, will do nothing more than put many of them out of business. It is very difficult for us to decide whose job and whose place would be the one that was picked in an attempt to comply with these regulations, even though the regulations, in our opinion, will not provide much in terms of environmental gain.
The requirements we place on our producers truly need to be grounded in water quality protection and resource protection. We don't believe that that will be accomplished through the proposed regs.
We do believe the alternative of the good faith effort, the State equivalent to help these producers do the right thing is the approach that we can live with, certainly in Wyoming, and we hope to get the help to the producers we already have waiting.
Thank you, Mr. Chairman.
Mr. DUNCAN. Thank you very much.
Mr. Gilchrest would like to introduce the next witness.
Mr. GILCHREST. Thank you, Mr. Chairman.
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The next witness is the Secretary of the Maryland Department of Environment, Jane Nishida from the State of Maryland.
I would like to say that over the years, while we have not always agreed on a number of different issues, Ms. Nishida has been very responsive to our office. I also think she has been very responsive, both in an industrial and an agricultural sense to the people of Maryland.
Welcome, Ms. Nishida.
Mr. DUNCAN. Thank you very much.
Ms. Nishida.
Ms. NISHIDA. Thank you. Mr. Chairman, I wanted to say that I am especially honored to have Congressman Gilchrest introduce me. Because as he noted, while we don't always agree, he has always been very open and very supportive of my agency and of the environment. So, I just wanted to publicly recognize and thank him for all that support over the years.
I am here testifying, as Congressman Gilchrest as indicated, on behalf of the State of Maryland and particularly the Maryland Department of the Environment. Maryland strongly supports EPA's efforts to move forward in permitting CAFOs and establishing more stringent national standards.
We believe that this program is critical to our efforts to protect all waters of Maryland, including the Chesapeake Bay and its tributaries. Maryland has been aggressively dealing with the effects of excess nutrients to the Chesapeake Bay and its tributaries for nearly two decades.
In the early 1980s, an exhaustive study conducted by EPA showed that the Chesapeake Bay was suffering from low dissolved oxygen and over-enrichment from nutrients being discharged from wastewater treatment plants, urban runoff and from agricultural land.
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Since that time, Maryland and the other signatory States of the Chesapeake Bay agreement have taken major steps to reduce nitrogen and phosphorus inputs to the bay, including from agricultural sources.
This experience has taught us that a comprehensive approach is necessary to achieve pollution reductions from all segments of society and from all kinds of land uses in order to protect and restore our nation's water resources.
The approach taken by EPA is based on a national performance expectation that all animal-feeding operations should develop and implement comprehensive nutrient management plans to minimize impacts on water quality and public health.
These plans should address feed management, manure handling and storage and land application of manure. These plans should also address management processes to minimize public health risks from these operations.
For the vast majority of feeding operation, voluntary efforts are the principal approach taken by EPA. There is a strong focus on providing environmental education, as well as technical and financial assistance.
However, the largest of these facilities should and will be covered under the Federal Clean Water Act discharge permit. In addition, there are some smaller operations that should and will be covered under a permit where there is a greater risk to water pollution.
The Federal Clean Water Act has been tremendously successful in a number of fronts. The nation is steadily moving toward achieving the goal of the Clean Water Act, so that the nation's waters be suitable for fishing and swimming.
However, concentrated animal feeding operations have created a new challenge to the Clean Water Act in that the number of size of these operations have increased dramatically in recent years.
A national approach to the regulation of CAFOs is essential to ensure consistency among States. Without a national approach, we could create a situation where large animal feeding operations may move from State to State to find the State with the least degree of regulatory protection.
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It is in just these situations where national water quality goals are threatened where EPA should set a standard for the nation. Unlike more traditional methods of farming, concentrated animal feeding operations can rely on less and less land, can be separated from the source of the feed operation and can therefore be located virtually anywhere.
The management of such operations must be done, therefore, at a national level to ensure a level playing field and protect water quality, regardless of the location of the operation.
I now want to turn to Maryland's experience. Agriculture, as Congressman Gilchrest knows, is among the most important economic sectors in Maryland. We cannot afford to lose this type of business.
At the same time, Maryland cannot afford to compromise its water quality resources, such as the Chesapeake Bay. In Maryland, agriculture accounts for 36 percent of the nitrogen loading to the bay, compared to 29 percent of the nitrogen loading coming from point sources and 24 percent from urban lands and 11 percent from forests, fields and open space.
The Maryland Department of the Environment is working cooperatively with the Department of Agriculture in monitoring and correctly environmental problems at agricultural facilities for over 20 years.
We turn to regulations enforcement only if voluntary measures are unsuccessful. While the vast majority of farmers throughout Maryland and throughout the nation follow best management practices and minimize losses to soils and nutrients, there are times when operations necessitate enforceable State and Federal regulations.
Maryland has proposed a general permit for CAFOs that recognizes the importance of nutrient management. The general permit took effect in December of 1996 and eight CAFOs have registered under the permit since that time.
In 1998, several waterways on the Eastern Shore of Maryland were closed to fishing, swimming and boating as a result of a toxic organism known as physteria that thrived in nutrient-rich waters. As a result, Maryland enacted the Water Quality Improvement Act in 1998. This act requires the development of nutrient management plans, relying on existing nutrient management planning process for all agricultural facilities with eight or more animal units.
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In addition, Maryland saw the need to supplement this act by developing conditions to be placed in the water discharge permits for processing facilities.
These conditions require the poultry processors to assist their contract growers in developing individual nutrient management plans and as well, require growers to dispose of excess chicken manure in a manner that will not increase nutrient loadings to the bay. These provisions are all consistent with the EPA-proposed regulations.
From these experiences, Maryland has learned that water quality, agriculture and the economy are integrally linked.
In conclusion, we therefore reiterate Maryland's support for a strong EPA and national approach to dealing with CAFOs. Thank you.
Mr. DUNCAN. Thank you very much, Ms. Nishida.
Mr. Harding, last but not least.
Mr. HARDING. Thank you, Mr. Chairman. Indeed it is a pleasure to be here in front of the committee to talk about a very important issue to us in Michigan.
My name is Russ Harding. I am Director of Michigan's Department of Environmental Quality, the agency charged with protecting Michigan's environment. In Michigan we enjoy some of the strictest water quality standards in the world. You might not be surprised by that as we are surrounded by nearly 20 percent of the world's fresh water in our State.
However, we have also an agricultural industry which is thriving in the State. It has been there for a long time. We hope that will be there for a long time in the future. It is an industry which is highly diversified. I think it is second only to California.
We do have large animal operations in the State, none of which are corporate or very few are corporate. Almost all of them are family-owned CAFOs.
We certainly do not argue with the need for national performance standards as it relates to CAFOs. Where I would certainly disagree with my colleague, Jane, here, is that they should be performance standards, not process standards.
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I have had the opportunity to serve as a regulator in Alaska, Arizona, Missouri, and Michigan. I can say that the challenges and issues are vastly different throughout this nation. The one-size-fits-all approach certainly does not work.
I would not take issue with States that feel a permitting process is the way to go, but I will remind the committee that certainly in the State of Michigan, and I think this is true in other States where I worked, we have a very dispersed and diverse agriculture community to work with. I kind of refer to it as the second wave of environmental protection in our nation. We have been very effective with the top down command and control proscriptive approach on point sources.
But as we move into the non-point arena, we are going to have to take some different approaches to be successful. We are going to have to form partnerships and work with the farmers to solve these problems. We need to back that up with enforcement.
The way in which we are doing that in Michigan is through the Michigan Environmental Assurance Program. That is really an effort that is really a lot of folks working together. We have government. We have conservation groups. We have agricultural producers and commodities as well as regulators. We have a program where there are third party independent certification of operations.
It has been my experience on farms that generally we encounter three kinds of problems. One is where livestock enters into the surface waters directly. Secondly, is where we have manure not appropriately applied, perhaps in Michigan on frozen fields in the winter. Then it thaws and we will get run-off. We also have problems from leaking lagoons.
However, it is also my experience that almost every farmer is trying to address those problems and they are trying to move ahead positively to work with us to get that done. Where that doesn't happen, we are not reluctant to enforce and in fact have a number of very active enforcement cases in our State. Our policy is zero discharge into our surface waters.
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But if we take the approach that EPA is suggesting, we are not going to meet those goals. It simply will not work. We will be taking cops off the beat in our State. We will more than double the universe of all NPDES permits we currently issue for all types of facilities in our State, including industrial and municipal. And we are a heavy manufacturing State.
We will not have additional resources to do that. We certainly do not see more money coming from the federal government.
Like many States, with the downturn in the economy, we have to balance our budgets. My agency is under a hiring freeze. We are taking budget reductions, so we will be doing these jobs with equal or less number of people than we currently have. We are going to have to form these partnerships like we are doing in Michigan.
We are going to have to work together to solve these problems. If we take this very, very proscriptive approach that EPA wants to take I heard Jane mention the general permits. You know, that is exactly what will happen when you bring in this large universe of farms into the NPDES program. States simply will not have the resources to individually do permits for that kind of universe of farms.
So, you do a general permit. What a general permit will be is something that will sit on a shelf. It will be a nice exercise. There will be a lot of activity that will go into the permitting. But there won't be many resources left to ensure things improve.
I don't think that is the kind of performance the taxpayers in our State expect. They want us to continue to move forward with clean water. They want to continue to have a thriving agricultural industry in our State. We can do that, but we are only going to be able to do that if we work together.
Certainly as I mentioned earlier, we are not afraid to enforce when that is necessary. A balanced program with sound enforcement is critical for a level playing field. But we have to have some common sense here.
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It has been interesting to me the last few years to see numerous reports, all basically with the same conclusion that if we are going to get what the public expects, and that is increased environmental protection and do it cost effectively, we are going to have to change the way in which we do business and try some new approaches.
Yet, we do not see that reflected in the approach that EPA takes. Instead, what we see in every case is additional regulation piled upon regulation. We are not going to get the desired results from that.
So, I hope this committee will seriously look at this issue, as I know you will. We certainly need some relief here from these oppressive Federal regulations so we can work to get the job done.
Thank you.
Mr. DUNCAN. Thank you very much, Mr. Harding. Every witness has been very helpful and very good.
Does anyone have a question that they could ask very quickly since we are starting a vote?
Mr. Gilchrest, I will come to you first.
Mr. GILCHREST. Mr. Hill, I live in Kennedyville, Maryland. Outside of my little town is a hog farmer with about 1,000 acres and about 4,000 hogs, very similar to your operation.
I have been on his farm a number of times. It sounds like his agricultural operation is exactly the way yours is now, because it was a lot different 20 years ago. It is fundamentally environmentally sound.
My question, Mr. Hill, the present existing rules for AFOs and CAFOs with EPA right now, do you think it is adequate? Is it too much? Could we leave it the way it is?
Mr. HILL. In Iowa, with the existing regulation, at 200,000 pounds on a site, I will need to have a manure management plan. That manure management plan will look at the crop uptake of nutrient and allow me only to put into the soil what the crop will require. My gallonage and the calculations I use about 250 acres per year to utilize that nutrient and we utilize it as a resource.
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I will mention to you that there is a transportation issue with this in that the further you must go from your operation to haul this slurry, the more expensive it is and the less likely you are going to recover your costs.
So, there is in Iowa kind of a geographically dispersion of farms because our manure management plans keep the operations smaller so they don't have as far to go to put that nutrient in the soil.
Mr. GILCHREST. So, I guess the existing rules in EPA, before they implement the new rules, if they do, can you live with the present rules with AFO and CAFO right now?
Mr. HILL. With the present EPA rules?
Mr. GILCHREST. Yes.
Mr. HILL. Well, I am not familiar that EPA has, in Iowa, that much jurisdiction until they come in with the new proposal.
Mr. GILCHREST. But the way you are doing things now, you see it as—
Mr. HILL. Yes.
Mr. DUNCAN. Thank you, Mr. Gilchrest.
Mr. Taylor.
Mr. TAYLOR. Thank you, Mr. Chairman.
I am from the State of Mississippi. The Mississippi River drains two-thirds of the continental United States, so for those of you who are saying, 'What does the United States have to say about water pollution?'' I would say that what starts in many of your States ends up flowing past mine.
Therefore it is Federal in nature. I understand your desire to minimize the costs to your farmers. That is natural. I understand your desires to protect your constituencies, Ms. Frank. That is natural.
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My question to you would be, would you be willing—since I do think it is Federal nature to try to protect the waters, and those laws date back to the 1890s, the first laws that said the waters are everyone's waters and therefore, we are going to protect them—could you live with the EPA giving you guidelines of what leaves your property?
However you treat it is up to you, whatever industry, be it large or small, Mr. Spence, as long as what leaves your property is within certain guidelines.
I would open it up to the panel. If you can find a better way to do it to solve this problem than the EPA, have at it.
Mr. SPENCE. I will take a stab at that. In part the answer to that, I think, is that under most of these State programs that are in existence today, that is already being addressed, particularly with what I am familiar with in Florida, you cannot have off-site discharges. So it is already being addressed.
Within the current framework of CAFO regulations, that is also addressed as well. In other words, there cannot be an off-site discharge except under certain circumstances, primarily an incident that exceeds the 24-hour flood event. That is still going to be the design criteria for the permitting.
So, I would answer that question with sort of a qualified yes. It is something producers can live with. It is something producers to a large degree can live with.
The other problem that we face is that, you know, if you go to borrow money in agriculture or in any business, you have to be able to show some return for it. With these kinds of pollution control measures mandated by EPA, we don't have that opportunity to go to the bank and say, 'Well, we are going to be producing this much more as a result of this.
Mr. HILL. In Iowa as well, we have been able to get along quite well with it. If we achieve a certain size, we are going to be inspected on a routine basis to make sure we are compliant.
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But any operation, if a neighbor suggests that there is a discharge or there is a concern, DNR is tripped into the farm for an inspection, without any notification to the producer. They can walk on to the farm and inspect the farm to make sure that we are compliant to that State law.
Mr. WALKER. If I can make a comment on what happens in Tennessee, we currently for the last two years—
Mr. TAYLOR. Mr. Walker, I have to say it. I don't think you are originally from Tennessee.
Dr. WALKER. I am from a little east of Tennessee, over the ocean. I am from Scotland originally. I knew that would be an issue, yes, that was well spotted.
In Tennessee for the last couple of years we have effectively had a three-tier system of CAFO definitions. We have an upper tier (or class 1) requirement for operations with greater than 1,000 animal units. That is a fairly strict permit requirement, almost like an NPDES permit. There are very comprehensive nutrient management planning requirements for that.
Between 300 animal units and 1,000 animal units, we have what is known as a Class 2 permit requirement. There we have requirements for a nutrient management plan as well as waste system handling design.
Many States already have their own systems in place. If these EPA regulations were to supersede them, it would cause a lot of confusion to a lot of people.
Mr. TAYLOR. Mr. Walker, I served in State government. I think right now three-fifths of our States are having revenue downturns. Budgets are being cut. That means fewer inspectors in the field.
I really do understand your concerns, but I hope you would also understand that I come from a seafood-producing area. If the water is ruined, we can't harvest oysters. We kill the shrimp. There are no menhaden to go into fertilizers and other things that you use.
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So, it really is a closed system. What happens in Iowa does indeed affect the seafood industry in Mississippi.
So, my question is: I don't quite buy the idea that we have no Federal government authority just in case the State, for whatever reason, is not enforcing the law. I would welcome your comments on that.
Mr. DUNCAN. Well, let me say this: With that comment we are going to have to conclude this, unfortunately, because we are about to miss a vote here right now.
We have about 45 minutes worth of votes, so unfortunately, I am going to have to ask any other Members to submit their questions in writing.
You have been very helpful witnesses and very informative. Your full statements will be placed in the record and also any supplemental materials you wish to present.
Dr. Walker, I can tell you, many of us in east Tennessee have Scottish ancestry. Thank you for being with us.
I think we have gotten the message out today. I think all of us want to see things done and our water kept clean, but have these things done in a way that we don't run more small farmers and even medium sized farmers out of business. That is my number one concern.
Certainly the EPA proposal right now would have the effect of helping the big giants get even bigger. We certainly, I don't think, want that if it is done at the expense of the small or medium-size farmers.
Thank you very much for being with us and for coming from all around the country and taking time out from your very busy schedules. You have been outstanding witnesses.
Thank you very much. That will conclude this hearing.
[Whereupon, at 3:20 p.m., the subcommittee was adjourned, to reconvene at the call of the Chair.]
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PREPARED STATEMENT OF HON. EARL BLUMENAUER
Today's hearing is the perfect opportunity to highlight the problems associated with confined animal feeding operations and to commend the Environmental Protection Agency for its attempts to improve water quality through permitting of point source pollutants. Concentrated animal feeding operations (often referred to as CAFOs) are a large source of nitrate pollution in groundwater, rivers, and drinking water, a source of disease-causing pathogens, and are recognized as a cause of the ''dead zone'' in the Gulf of Mexico. While confined animal feeding operations have long been recognized as a point source pollutant under the Clean Water Act, only the largest and most egregious polluters have been regulated.
I have two main concerns with confined animal feeding operations. The first is the fact that Congress and the Environmental Protection Agency continue to allow confined animal feeding operations to be inappropriately located in floodplains and other environmentally-sensitive areas. Congress lost a tremendous opportunity to redress such a scenario recently when Hurricane Floyd flooded factory hog farms in the lowlands of North Carolina. Of the approximately 2,500 hog farms in that state, nearly 40 percent were located in flood plains. Vast lagoons of highly polluting hog waste were ruptured or flooded by the hurricane's wrath; and almost half continued to overflow for months after the floodwaters receded. Congress had a unique opportunity to question the wisdom of building such destructive facilities in a region so vulnerable to nature's fury. Instead, federal money was granted to restore the hog farms and vast lagoons, providing yet another example of how we often chose to maintain the status quo—even when we know it's the wrong thing to do. The second is that we should have reservations about some of the consequences of ''factory farming'' when it presents severe environmental, health, and safety risks to workers and subjects animals to an inhumane existence.
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On the other hand, I have concerns with the proposed regulations as well. These new regulations should not be arbitrary in nature, but rather should be based on a flexible framework. We should recognize that many industries have improved and changed for the better in the last 30 years, but there are still some individuals with bad practices, and there are still natural events and land use issues—and these issues mean that we need some level of protection. If intense storm frequencies continue to rise, as is predicted by global warming forecasts, then we need to be more intelligent in our land-use choices, and be certain that these waste lagoons are not placed where they would be vulnerable to flooding.
Individuals are being more careful, but we should all do more to pollute less. These regulations are not about hurting the family farmer. They are about the uneven responsibility that has been placed on the animal feeding industry, and the problems associated with the market consolidation that has taken place over the past 40 years.
The concentration of these activities with much larger operations is a serious issue. We need to continue to make more progress. While considering these regulations, we need to be sensitive to the future of our planet to make sure that we don't make things worse, rather than better. Those who have a proven track record of responsibility and commitment to thoughtful environmental practices should be given the flexibility to continue to improve their operations in ways that work for them, so long as they are willing to be held accountable for their actions.
Today, we have the opportunity to re-access the status quo and make the federal government a better partner in building more livable communities. A simple way to accomplish this goal is by being more thoughtful about where we are investing federal dollars, and ensuring that the highest environmental standards are maintained. The Environmental Protection Agency has taken the first step toward safer, healthier, and more sustainable animal farming by promoting rules that would broaden the definitions of these operations and allow more extensive permitting for these point-source pollutants. I support these measures, and would take them even further, to make sure that the environment is protected, and that everyone is held to the same standards.
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PREPARED STATEMENT OF BOBBIE FRANK, EXECUTIVE DIRECTOR OF THE WYOMING ASSOCIATION OF CONSERVATION DISTRICTS
Mr. Chairman and members of the Subcommittee, I am Bobbie Frank, Executive Director of the Wyoming Association of Conservation Districts, and I am here representing Wyoming's 34 local Conservation Districts. Local Conservation Districts are political sub-divisions of state government, which are governed by 170 locally elected officials. Districts are charged, pursuant to §11–16–101 et seq., with the protection of natural resources, including water quality, while stabilizing farming and ranching operations and protecting the tax base.
Thank you for the opportunity to share our view on this important issue.
The Association appreciates Governor Whitman's decision to extend the original comment deadline by 75 days. The Association requested a 150-day comment extension. Although the full 150-day extension was not granted, the Association is appreciative of the Administrator's recognition of the magnitude of this proposed rule. Additional time was necessary to allow the affected livestock producers, state and local governments' adequate time to provide constructive and meaningful input.
These proposed rules will potentially affect 1000 or more livestock producers in Wyoming alone, based on the number of farms with 200–499 and 500 or greater head of livestock.(see footnote 1) This does not account for those producers who may be smaller, yet still send livestock to feedlots and subsequently may be subject to co-permitting requirements. EPA claims that under the 2-tier proposal 7% of AFOs would be regulated, and under the 3-tier proposal 4.5 to 8.5% of AFOs would be regulated. Wyoming has approximately 3200 livestock producers.(see footnote 2) Based on the above number potentially affected by this proposed rule, approximately 29.4% of Wyoming producers could be subject to regulation. EPA in the Unified Animal Feeding Operation strategy, dated March 9, 1999, claimed that a majority of animal feeding operations, (95% was cited in the strategy), would be addressed using voluntary approaches.
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If private landowners are expected to provide public benefits then technical and financial help must be available to these landowners. To treat these private landowners differently than municipalities, who were also required to eliminate pollutants, yet were provided with enormous amounts of monetary assistance, is unacceptable. The Association recognizes that some changes in the livestock industry need to occur, however given that most changes are being demanded on operations that homesteaded in the west many years ago, it is only ethical that the government provide the financial assistance to achieve these standards. This has not yet occurred even under the current requirements.
1. Success of voluntary incentive based programs
The local Conservation Districts and the WACD, in coordination with the livestock industry organizations, Wyoming Department of Agriculture, Department of Environmental Quality, USDA Natural Resource Conservation Service, and the University of Wyoming have been working together to implement a state wide Animal Feeding Operation/Confined Animal Feeding Operation Program since 1996. This program is aimed at providing livestock producers the information/education, technical, and cost-share assistance necessary to protect water quality. The AFO portion of this program has been partially funded through Clean Water Act section 319 funds with remaining program costs covered with local funds, volunteer time, and mostly livestock producer resources. Progress and success has been achieved, which demonstrates the fact that locally driven voluntary programs are effective in protecting the resource and are more effective than top down regulatory programs.
Conservation Districts, the Department of Agriculture, and the Department of Environmental Quality have conducted 19 workshops throughout Wyoming as of May 9, 2001. We have logged over 6500 miles to help educate livestock producers. As a result, the request for animal feeding operation technical assistance from local Conservation Districts/Natural Resources Conservation Service has increased substantially in the past two years. A workload analysis conducted in the fall of 1999 by the local Conservation Districts and Natural Resource Conservation Service, estimated the total AFO workload for 2001 to be 25 projects, yet, as of the beginning of May 2001, the total request from livestock producers is approximately 200. This demand for assistance cannot currently be met in Wyoming. NRCS technical assistance in the field is insufficient to meet the workload demand.
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This demonstrates, unlike EPA's analysis in the proposed rule, that livestock producers will address issues of concerns with livestock facilities. The Association appreciates the fact that the EPA Region VIII recognizes these efforts and has so far, supported this approach.
The Association recognizes the need to assist producers in eliminating unacceptable conditions. There has been an extraordinary amount of time devoted to this effort. There are currently over 60 animal feeding operation projects in various stages from planning to complete, funded either through USDA NRCS Environmental Quality Incentive or Section 319 programs. The Association can clearly demonstrate that with proper education and adequate technical and financial assistance, livestock producers will address potential contributions of pollutants to waters. The challenge is to provide enough assistance to serve the requests. The issue is not that there is a lack of regulations. The proposed CAFO regulations will do nothing to assist these livestock producers and will only serve to add additional regulatory burden on small family owned livestock operations.
Again, the Unified Animal Feeding Operation Strategy stressed the importance of locally led conservation efforts such as those outlined above. In fact the strategy states: ''It is hard to overstate the importance of effective, locally led actions through the SWCDs (soil and water conservation districts) in achieving national natural resource quality goals. This is particularly true for AFOs. USDA and EPA have a commitment to locally led conservation as one of the most effective ways to help individual landowners and communities achieve their conservation goals.''
Yet these proposed regulations, if adopted, would negate most if not all of the locally led efforts that are being pursued in Wyoming.
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2. Proposed standards are not necessary to protect water quality
WACD does not believe the requirements being proposed in the certification process, such as 100 foot distance from surface water, containment in 25 yr. 24 hr. event in all situations, etc., are necessary in all cases to protect water resources. Flexibility is necessary to determine the most cost-effective practices on a site by site basis. The local Conservation Districts have been actively conducting watershed based monitoring efforts to collect credible data on Wyoming's waters. This effort is being done in conjunction with several state and federal agencies. This monitoring will serve to determine effectiveness of management practices on a watershed scale and not just a targeting of the livestock industry. In watersheds where waterbodies are impaired due to fecal coliform contamination, there are a variety of land use activities, including residential and wildlife, which are potential contaminants. To make the assumption that all of the pollutants are from livestock would be completely indefensible.
3. Expansion of regulatory authorities by EPA
These proposed regulations are a clear attempt by the EPA to regulate non point source pollution. An authority the Agency has in the past admitted that they do not have. However, once again, as was the case in the Total Maximum Daily Load regulations, the agency merely redefines certain activities to meet the definition of a point source, thereby providing EPA regulatory authority. This sidestepping of the congressional intent that non point source be dealt with utilizing voluntary incentive based approaches, causes nothing more than resources, both human and financial, to be diverted to battling with the agency versus getting management practices implemented.
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WACD does not believe that the congressional intent was for EPA to claim that all activities are presumed to be a point source until such time that they prove otherwise. EPA's proposed certification process is a clear expansion of authorities and demonstrates a top down heavy-handed approach. The redefining of an AFO combined with the modification in the three-tier system will result in the regulation of non point sources of pollution.
4. Unnecessary regulation of the small family farmer and rancher
These proposed regulations are again a blatant contradiction of what EPA and USDA stated in the Unified Strategy for Animal Feeding Operations. The strategy states: ''A strong livestock industry (of which AFO's are a part) is essential to the Nation's economic stability, the viability of many rural communities, and the sustainability of a healthful and high quality food supply for the American public. EPA and USDA recognize that farmers and ranchers are primary stewards of many of our Nation's natural resources, have played a key role in past efforts to improve water quality, and will be important partners in implementing improved measures to protect the environment and public health.'' In addition, one of the guiding principles contained in the strategy includes the following: ''Ensure that measures to protect the environment and public health complement the long-term sustainability of livestock production in the United States.''
WACD would concur with the above statements. The economic viability of agriculture operations is especially important to Wyoming where agriculture ranks 3rd in terms of economic contributions to the overall economy. Additionally, tourism is the 2nd largest industry and obviously the values such as open space, water quality, and wildlife habitat provided by agriculture are one reason why tourism ranks as one of the highest in our state. With the demise of agriculture many other values will be lost.
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One of the fundamental flaws of the proposed regulations is the agency view of what constitutes a large facility. The agency cites in the proposed rule the Clean Water Action Plan which states that ''one important aspect of such controls is the expansion of the CWA permit controls including those applicable to large facilities such as CAFO's'' (page 2966). Today's proposal includes provisions to lower the threshold, 750 head, 500 head, and 300 head, for the number of livestock that would constitute a CAFO. These facilities do not constitute large facilities, especially in light of that fact that it takes a minimum of 300 head of cows or more to be an economic unit, even then one spouse typical holds a job of the ranch to supplement ranch income.(see footnote 3) These small family farming and ranching operations are clearly the target of this proposed rule.
5. Economic burden on family farmers and ranchers
EPA is claiming that, if the Administrator deems that requiring best available technology is economically achievable then the agency can impose these extremely stringent requirements. The requirements that would be imposed on small livestock producers through this rulemaking are not economically achievable in any sense of the word. First of all, by lowering the threshold, these smaller livestock producers may be disqualified from obtaining any type of cost share funds available through either the EQIP or 319 programs. Therefore, the entire burden may be on the producer's shoulders to comply with these requirements. Based on current and completed AFO projects being implemented by producers in Wyoming, the average cost of implementing a complete project, is over $70,000. This includes facilities ranging from cow/calf operations, sheep operations, less than 1000 AU feedlot, and a small 70 head dairy operation.
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The above average cost to implement a project is based on today's requirements. Based on the waste management practices, monitoring requirements and record keeping in the proposed regulations, the compliance costs will increase substantially from the current average of WACD's AFO projects and have the potential to completely eliminate small family owned agriculture
operations. Furthermore, due to the stringency of the requirements, the cost of compliance will increase even more than the estimate provided by the Association on AFO projects.
EPA statements in the proposed rule that ''this rule is affordable'' and that ''some businesses in some locales may experience economic stress'' (page 3078), is an understatement at best.
WACD is still conducting a review of the Agencies supporting documents/economic analysis to the rulemaking. Given that the proposed rule is 185 pages in length, and each of the supporting documents range from 767 pages, 549 pages and 420 pages in length, the Association has not had adequate time to complete a thorough review.
6. Lack of science to defend need for proposed revisions
EPA's claim that agriculture is the number one contributor to the nations water quality issues, cannot be substantiated with science. In a report dated March 2000, to the Chairman, Subcommittee on Water Resources and Environment, Committee on Transportation and Infrastructure, the General Accounting Office uncovered the fact that EPA has and is utilizing inconsistent and incomplete data. Yet, the agency continues to cite this very data to defend regulatory actions and proposals. This Association has time and time again reiterated that the scientific data is lacking to defend actions such as these proposed CAFO regulations.
The Association is providing the following as alternatives to today's proposal to address confined animal feeding operations:
1. Retain the current definition of an Animal Feeding Operation, with the modification that animals are confined, fed, or maintained for 45 consecutive days. The current rules indicate that it is a total of 45 days in a 12-month period. These rules affect small family ranching operations that have a set of working corrals that may be used sporadically throughout a 12 month period. WACD does not believe the intent was to address working facilities whose primary use is not to confine and feed livestock. A set of working corrals or facilities do not typically generate sufficient waste to be of issue.
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2. Allow for a state equivalent program to achieve the end result as discussed in the preamble to the rule, page 3021, that allows for a good faith provision. EPA claims that this approach was considered however it was abandoned as it would be considered ''deregulatory''. WACD questions what the actual goal is—to regulate or to protect water quality. Based on EPA's unwillingness to consider this good faith approach to minimize the need for regulation, it is obvious the Agencies goal is more focused on regulating rather than using the best methods possible to protect water quality. Wyoming is currently using this good faith approach to address operations with 300–999 with unacceptable conditions. By eliminating the unacceptable conditions there is no need to proceed with costly regulatory actions. Certainly Wyoming is not the only state that is implementing a program aimed at eliminating issues before regulation is a requirement. WACD felt that this option warranted much greater discussion and attention. Given that voluntary programs have and do work, the Association believes this would be a much more acceptable approach.
3. WACD supports converting a straight animal unit calculation, however WACD believes that it should be clarified that a cow/calf constitutes one animal, otherwise the proposed regulations would include a rancher owning 150 cow/calf pair. Further, WACD believes the threshold for an AFO to be designated a CAFO should remain at 1000 animal units. Although EPA claims that the regulations are to address the consolidation of the industry and the larger facilities, the strategy of the proposal is to lower the number of animals that would automatically be considered a CAFO to either 750 head or 500 head.
4. The current 3 tier systems, with the addition of the above allowances for equivalent good faith programs, should be retained. The agency claims that the current three-tier system is confusing to livestock producers and the two-tier system is being proposed to make it more clear on who is regulated and who is not. Although WACD agrees that the interpretation of a ''direct discharge'' adds an additional element to be considered when determining which AFO's are CAFO's, WACD does not believe a level of confusion that may exist, justifies lowering the threshold and bringing more family farmers and ranchers under regulatory requirements. If the agency would have dedicated more resources to education and technical assistance to producers, it is unlikely that this confusion would exist at all.
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5. WACD agrees with including nutrient management plans as a component of a NPDES permit for CAFO's of 1000 animal units or more. However, WACD does not agree that such a plan, subsequently the permit, should include any production or land application area within the permit itself as those two terms are defined in the proposed regulations.
The Association will be submitting to the Environmental Protection Agency complete and comprehensive comments on the proposed regulations.
On March 26, 2001 at a meeting of the National Association of Conservation Districts, Governor Christine Todd Whitman, EPA Administrator made the following statements: ''The Agency that President Bush has given me the honor to lead has rarely had a problem thinking globally. But I do believe we can do better at helping others act locally. I am convinced that we have reached a point in our national life where we can move beyond the command and control model that has long-defined Washington's relationship with the rest of the country on environmental policy. The time is ripe for partnership-building.'' She went on to summarize her comments with the following statement, ''America's 3000 conservation districts are exactly the sort of partners EPA needs to effectively meet its mission. In the coming months and years, I hope you will keep me apprised of your views on important issues facing my Agency, as well as your ideas and suggestions on how we can build an even more effective partnership.''
The Association, on behalf of the local Conservation Districts, has found her comments and commitment to effective partnerships refreshing. WACD agrees that a cooperative partnership would by far be more effective in protecting water quality than the proposed rules as published.
Mr. Chairman, thank you for the opportunity to provide a local government perspective.
PREPARED STATEMENT OF RUSSELL J. HARDING, MICHIGAN DEPARTMENT OF ENVIRONMENTAL QUALITY
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Good afternoon, I am Russell J. Harding, Director of the Michigan Department of Environmental Quality. The Department is Michigan's environmental regulatory agency, responsible for the air, water quality, wetlands, waste management, and environmental cleanup programs.
I would like to thank the committee for the opportunity today to discuss an effective strategy for managing environmental issues related to concentrated animal feeding operations (CAFOs). Under the previous administration, the U.S. Environmental Protection Agency (U.S. EPA) proposed regulations to govern CAFOs. These proposed regulations continue a traditional prescriptive permitting program to manage environmental concerns from CAFOs.
What the U.S. EPA has proposed is the issuance of National Pollutant Discharge Elimination System (NPDES) permits for animal feeding operations. This is an approach that values process over performance. The prescriptive permit program referenced in the regulations simply is the wrong vehicle for addressing CAFO issues and will not deliver the intended environmental results. What's worse, it may well lead to environmental backsliding. If Michigan was to comply with the proposed requirements and issue individual NPDES permits, it would double the number of individual NPDES permits issued in the entire state for all sources. I'm not alone in these concerns. These are fears expressed by career civil servants in my agency who deal with these issues day in and day out, and who view this as a wrong-headed approach.
Michigan is very concerned that the proposed permit program would be broader in scope than envisioned by the U.S. EPA and would require significant resources to implement. We believe that U.S. EPA has seriously underestimated the number of CAFO's that would require permits under their approach by more than 50 percent. We do not believe that the additional permitting effort will provide any greater reduction in pollutant loading than would occur in the comprehensive, proactive, voluntary program that Michigan is implementing.
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Given the practical fiscal constraints our programs face and a lack of any new federal resources for these purposes, Michigan has grave concerns about the overall impact on its water quality programs. If states are forced to permit animal feeding operations, the resulting shift of resources from other higher priority areas could create an actual degradation in overall water quality. We will, in effect, be taking cops off of the beat and putting them behind desks. Yes, we will be able to boast about the number of permits issued, and those statistics will end up buried in an obscure report that collects dust in the office of a well-intentioned bureaucrat. But there will be no practical environmental benefit.
The proposed CAFO regulations do not provide for the flexibility to recognize functionally equivalent state programs that meet environmental goals and standards. Michigan supports all states having the flexibility to implement their own functionally equivalent strategies based on measures of environmental performance, not a mandated process. The 25-year, 24-hour storm exemption is a well-recognized national standard and design criterion that provides a realistic and environmentally protective performance standard. Oddly enough, this effective and widely accepted standard is expected to be eliminated in the proposed regulations.
In contrast to the federal approach, I offer for your consideration a voluntary, proactive approach used with success in my state. The Michigan Agricultural Environmental Assurance Program (MAEAP) provides greater environmental protection than the proposed regulations while maintaining a strong and diverse animal agricultural industry.
The MAEAP ensures that Michigan farmers are engaging in cost-effective pollution prevention practices and complying with state and federal environmental regulations. It was created in 1998 by a coalition of agriculture producers, commodity groups, state agencies, and conservation and environmental groups, in response to recommendations in the Michigan Agriculture Pollution Prevention Strategy Report. Producers who participated in the Pollution Prevention Strategy called for a program for agriculture that built on existing state programs, established consistent standards and that let them know exactly what was expected.
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The MAEAP builds on existing state programs, compiling the requirements and guidelines of those programs into one program that oversees animal agriculture. It was designed using a systems approach to evaluate environmental risks at a farm. Realizing that designing a program to address all aspects of a farm was a lofty task, the committee divided the farm into three system modules: livestock, farmstead and cropping.
Each system module has its own three-phase approach: education, on-farm environmental risk assessments, and third-party verification. During each phase, participants evaluate farm risk factors relative to regulations and laws, and advanced stewardship techniques. Because of the attention given to CAFOs, the committee chose to focus on the livestock systems module first.
To accomplish the first phase, educational meetings were held across the state this past winter. They drew more than 700 participants including farmers, university extension agents, and technical support staff. The educational sessions informed participants of appropriate environmental regulations, the structure and phased approach of the MAEAP, and laid the framework for the development of a Comprehensive Nutrient Management Plan (CNMP). The primary component of the livestock system module is the completion and implementation of the CNMP.
Currently, 25 Michigan farms are involved in a pilot program for the livestock systems module. These sites vary by species, size and management, and will work together with a local team of resource professionals to develop and fine-tune both the plans for reducing pollution and the tools to evaluate plan implementation. By the end of June 2001, we will have 25 farms with certified CNMPs that will be ready for third-party verification. The farmer initiates the third-party verification with the MAEAP Unit of the Michigan Department of Agriculture. The MAEAP unit will then evaluate the implementation of the certified CNMP and compliance with applicable laws and regulations. The MAEAP is on track to have 150 farms participating by the end of December 2001. The tools and plans developed from the pilot project will assist the MAEAP in achieving its goal of involving 85 percent of livestock production in the MAEAP by 2005.
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It is important to note that the MAEAP is not about ''coddling'' agricultural producers or letting anyone off the hook. Violations are taken seriously and the State of Michigan continues to demonstrate that it will use enforcement if problems persist. Education and cooperation are usually the answer, but in those few instances where compliance is lacking, my agency has entered into administrative actions and litigation to address any lingering problems.
We believe that the MAEAP will prove to be an effective alternative to the proposed prescriptive permitting approach. Setting a national performance standard and allowing the states the flexibility to achieve the standard is the sensible approach for managing environmental impacts from animal agriculture.
Thank you again for the opportunity to provide this testimony. Michigan is proceeding with an environmentally sound approach to deal with animal feeding operations of all sizes that is based on strong partnerships. The MAEAP focuses on achieving proactive environmental results, and coupled with effective enforcement tools, it could serve as an alternative to a process-driven permitting program. Michigan welcomes the opportunity to work with this committee, the U.S. EPA and the U.S. Department of Agriculture on developing a program for animal agriculture that is environmentally sound while allowing the farmer to be profitable. At this time, I would like to answer any questions you may have.
PREPARED STATEMENT OF CRAIG HILL, LIVESTOCK PRODUCER, MILO, IA
Good afternoon. My name is Craig Hill and I am a livestock producer from Milo, Iowa, just south of Des Moines. My wife Patti and I raise just over 1,100 acres of corn and soybeans and feed nearly all that is raised to our hogs. I appreciate the opportunity to be here today to talk about the impact of EPA's proposed new regulations on livestock producers and why I believe they are not needed.
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Before I talk about my concerns with the EPA approach, I'd like to tell you a little bit about my operation. We have a farrow to finish operation. That means that we are involved in all phases of the production cycle from breeding to farrowing to growing to finishing and marketing. We have 250 sows and finish to market weight about 4,500 hogs per year. I am an independent producer. I do not raise my hogs on contract nor do I have a marketing contract. I recently expanded my operation, putting up another confinement building. I can expect a confinement building to have a useful life of nearly 20 years before it must be replaced.
The average cost of production for most Iowa producers falls between $35–$40 per hundredweight. This includes among other things in order of greatest cost, feed costs, depreciation of buildings and equipment, labor, utilities and veterinary medicine. Hog production is a low margin business. The five-year average price is $42/cwt. This means that independent producers such as myself do not have a lot of extra capital to reinvest in our operations.
As I mentioned, I am an independent producer and do not rely on a marketing contract to sell my hogs. Up until last year, I solicited bids from three packers—IBP, Swift and Excel—all within 70 miles of my farm. As changes have occurred in the packing sector, I have had to seek professional marketing services to help improve my profitability. I now participate in Producers Livestock Marketing Service. This service has expanded my ability to get competitive bids for my hogs beyond Iowa. I expect that in the future, further changes in the marketing side will force me to seek a marketing contract.
Based on the expansion of my operation, I will now be required to have a nutrient management plan under Iowa law. I am in the process of developing this plan and must submit it to the Iowa Department of Natural Resources 60 days before I apply manure to the ground. I must keep this plan updated as my operation changes. This includes any changes in the amount of land I farm. Because I farm some highly erodible ground, I am required to also submit to the Iowa DNR my NRCS conservation plan.
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Because I have concrete pits under my buildings and one outside formed storage facility, the DNR will inspect my operation on a periodic basis. However, the DNR is moving toward yearly inspections of all operations with nutrient management plans regardless of the type of storage system used.
I am required to receive training for proper manure application and management. This certification must be renewed by exam every three years or I must take at least two hours of continuing education every year to maintain this certification.
Each plan is operation specific but there are some general requirements under Iowa law. Manure application is based on crop uptake of nitrogen. I must keep records for three years on the amount of manure applied and the number of acres it was applied on. I cannot apply manure within 200 feet of designated areas such as wells and streams unless I use buffer strips or inject the manure to curb run-off problems. In addition. I cannot apply liquid manure within 750 feet of a residence or public use area. If I use buffer strips, I cannot apply manure within 50 feet of a designated area.
I empty the pits under my confinement buildings twice a year. I also empty the outside lagoon storage twice a year. I use two methods to apply manure to the ground. I directly inject manure, eliminating the threat of run-off from the cropland. I also surface apply with incorporation. This means the manure is spread on the cropland and then tilled into the soil to minimize run-off concerns. Iowa law requires that this occur within 24 hours of application but in practice, most producers do it within 6–8 hours.
Iowa law also requires certain size operations to siting requirements. My facility is exempt from that requirement, but I, along with many other producers, believe it is in our best interest to follow these requirements. My new building meets all of the siting requirements under Iowa law. As with the nutrient management requirements, the Iowa Department of Natural Resources is constantly reviewing the existing regulations to determine if changes are needed to better protect the environment.
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Iowa is the number one hog producing state in the nation. We are also number one in egg production, 7th in cattle production and 11th in dairy production. Iowa is also the number one corn and soybean producing state. Twenty to thirty percent of the corn crop raised in Iowa is fed to livestock in Iowa.
It might surprise you to know that we have remained consistent in the number of livestock produced over the last 50 years. In 1950, Iowa farmers raised 23 million hogs. Today, Iowa farmers raised 23 million hogs. The perception is that today's hog production is less environmentally sound because there are fewer farmers producing these hogs. The perception is that confined facilities are more environmentally damaging than outside pens used by farmers 50 years ago. The perception is that there is more waste today than 50 years ago. These perceptions are wrong.
In 1950, it took over 4 pounds of feed to produce 1 pound of pork. Today, it takes 3 pounds of feed to produce 1 pound of pork. This feed efficiency means there is greater than 25 percent less waste being produced per hog today than our ancestors produced 50 years ago.
Fifty years ago, hogs were raised outside with dirt or concrete floors. Manure was not contained. Today, hogs are raised in confinement buildings. Manure is contained in concrete pits under the floor, never being touched by rainfall. Technology has changed and producers have changed as they have become more sophisticated about production and environmental management.
Today, livestock producers like myself are using good husbandry practices to produce our nation's meat supply with less waste. We are putting in place systems that contain manure and better protect the environment. And we did this without the benefit of laws or regulations. It hasn't been a law or regulation that changed the livestock industry over the last 50 years. It's been the advent of new technology and the realization of producers that we can do a better job. A law didn't create confinement buildings to produce livestock—it evolved as we searched for better, more environmentally sound ways to raise hogs. A law didn't create the equipment needed to recycle manure back into the land—it evolved as producers sought ways to use this renewable resources and return it to the land.
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I have been farming all of my life. My operation has evolved and grown as I have reinvested capital. There is a direct correlation between the improvements and growth in my operation and the containment of nutrients. Today, my operation is more environmentally sound than when I first started farming. As I continue to grow my farming operation, this trend will continue. Ten years down the road, I expect my operation to be more environmentally sound than it is today.
Laws and regulations are not the answer. Profitable agriculture enterprises will correlate with the adoption of new technologies and practices designed to make the operation more environmentally sound. Farm organizations like Farm Bureau and the National Pork Producers Association and our land grant institutions are working to educate producers on effective management techniques that minimize environmental risk and improve profitability. This educational effort will do more to compel producers to change their practices than any law or regulation.
Corn production creates more demand for commercial fertilizer than does any other crop commodity grown in the U.S. In fact, 45% of all commercial fertilizer nitrogen and phosphorus potassium used in U.S. food production is used in the growing of corn. This need for plant nutrient is at the present time, largely supplied by commercial sources—elements that are derived from mining or generated from fossil fuel and natural gas. A managed fertility program with organic nutrients such as manure can be used to displace purchased commercial fertilizer. The gross benefit to the farmer can be $40–$60 per acre. Treated as a valuable resource, as a by-product of meat production, manure is a resource that pays economic and environmental dividends.
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EPA views this important by-product of meat production as a waste, not a resource. Their regulations will not help the future of agriculture; they will hinder it. EPA is recommending duplicative and costly regulation to improve the environment. It makes these recommendations with little understanding of what is already occurring at the state level and how producers raise and market livestock. The state of Iowa has a comprehensive regulatory program that is designed to allow livestock operations to flourish within an environmentally sound framework. We believe this regulatory program is at least equivalent if not stronger than that proposed by EPA. I have included with my testimony a brief comparison of the EPA proposal with the current Iowa regulatory program. Our regulatory program is much more comprehensive and has more detail than is shown in this comparison.
EPA's proposed solution to the issue of EPA waste management is contradictory to their own data. EPA proposes a one-size fits all approach yet its data suggests that issues related to livestock waste management are localized in only a few areas of the country. State-based, voluntary programs combined with state regulatory approaches are working because they recognize that Iowa is not the same as Texas and that different solutions are needed at the local level to address water quality concerns.
Thank you for the opportunity to testify today. I would be happy to answer any questions.
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PREPARED STATEMENT OF JANE NISHIDA, SECRETARY, MARYLAND DEPARTMENT OF THE ENVIRONMENT
INTRODUCTION
Thank you, Chairman Duncan and members of the Committee, for providing me the opportunity to speak here today. My name is Jane Nishida and I am the Secretary of the Maryland Department of the Environment. My agency has the primary responsibility for implementation of regulatory programs to protect the environment in Maryland. I am here to represent Maryland's views on the need to regulate concentrated animal feeding operations (CAFOs) at the federal level.
IMPACTS OF CAFOS ON WATER QUALITY
The National Strategy proposed by EPA will enable States to address the environmental effects of animal feeding operations. The primary water quality issues associated with these operations include pollution from excess nutrients, organic matter, sediments, pathogens, heavy metals, hormones, antibiotics, and ammonia. Excess nutrients in water can contribute to eutrophication, low dissolved oxygen, and toxic algal blooms which can be harmful to human health and lead to the decline in fish and shellfish populations. One example of this is the outbreak of Pfiesteria in Maryland several years ago. The decomposition of manure can reduce oxygen levels and cause fish kills. Other adverse impacts include groundwater contamination, and habitat loss.
Because of the potential for these problems to affect the waterways in Maryland and in our surrounding States, Maryland strongly supports EPA's efforts to move forward in permitting CAFOs and establishing more stringent national standards. We believe that this program is critical to our efforts to protect the all of the waters of Maryland, including the Chesapeake Bay, and its tributaries and the Atlantic coastal bays that we share with Delaware and Virginia. Maryland has been aggressively dealing with the effects of excess nutrients to the Chesapeake Bay and its tributaries for nearly two decades. In the early 1980s an exhaustive study conducted by the Environmental Protection Agency (EPA) showed that the Bay was suffering from low dissolved oxygen and over-enrichment from the nutrients being discharged from wastewater treatment plants and from agricultural land. Since that time, Maryland and the other signatories of the Chesapeake Bay Agreement have taken major steps to reduce nitrogen and phosphorus inputs to the Bay. Among these steps were a ban on phosphate detergents, new technologies at wastewater treatment plants to reduce nitrogen and phosphorus, and a broad range of programs targeted to the agricultural community to achieve voluntary reductions in the amount of nutrients running off of agricultural land into the surrounding waterways. This experience has taught us that it is necessary to achieve pollution reductions from all segments of society and all kinds of land uses if we wish to protect and restore the Nation's water resources.
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NEED FOR NATIONAL APPROACH
The approach taken by EPA is based on a national performance expectation that all animal-feeding operations should develop and implement Comprehensive Nutrient Management Plans to minimize impacts on water quality and public health. These plans should address feed management, manure handling and storage, and land application of manure. These plans should also address management processes to minimize public health risks from these operations.
For the vast majority of animal feeding operations voluntary efforts are the principle approach being taken by EPA. There is a strong focus on providing environmental education, as well as technical and financial assistance to help owners develop and implement adequate plans. In some cases however, the largest of these facilities will be covered under the Federal Clean Water Act discharge permit. In addition, there are some smaller operations that will be covered under a permit where there is a greater risk of water pollution.
Nationally, there has been an increase in the average size of farm facilities with CAFOs. This change to larger farms means greater potential for environmental problems and therefore requires more formalized federal controls. Maryland urges Congress to support EPA's efforts to establish meaningful national standards that will promote an across-the-board improvement. In the absence of a national standard, we will see the relocation of agricultural facilities and their associated environmental challenges, from jurisdictions of with more advanced environmental protection programs to jurisdictions that have less concern for water quality protection.
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A national approach to the regulation of CAFOs is essential to ensure consistency among the States. Without a national approach, we will create a situation where large animal operations may move from state to state to find those with the least degree of state regulatory authority. It is in just such situations, where national water quality goals are threatened, that EPA should set a standard for the Nation. Unlike more traditional methods of farming, concentrated animal feeding operations can rely on less and less land, can be separated from the source of feed production, and can therefore be located virtually anywhere. The management of such operations must be done, therefore, at the national level to ensure a level playing field and to protect water quality regardless of the location of the operation.
The Federal Clean Water Act has been tremendously successful on numerous fronts. The Nation is steadily moving forward toward achieving the goal of the Clean Water Act, so that the nation's waters will be suitable for fishing and swimming. However, concentrated animal operations of this magnitude have created a new challenge to the Clean Water Act in that the number and size of these operations have increased dramatically in recent years. As consolidation has become more prevalent in agriculture, the efficiencies and productivity achieved by consolidated operations have reached the livestock industry as well.
MARYLAND'S EXPERIENCE
Agriculture is among the most important economic sectors in Maryland, and we cannot afford to lose these types of businesses. At the same time, Maryland cannot afford to compromise its water resources, such as the Chesapeake Bay, which support the equally important fisheries and tourism industries in Maryland, nor can we afford to simply transfer this problem to another part of the Chesapeake Bay watershed, which we share with New York, Pennsylvania, Delaware, West Virginia, Virginia and the District of Columbia. In Maryland, agriculture accounts for 36% of nitrogen loading to the Chesapeake Bay. This compares to 29% of nitrogen loading coming from point sources which are primarily municipally owned wasterwater treatment plants, 24% of nitrogen loadings coming from urban lands, and the remaining 11% attributable to forest, fields, and other open space.
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Maryland has long recognized the need to regulate CAFOs in a manner that considers the importance of the agricultural community to the economic and environmental health of the State. The Maryland Department of the Environment and the Maryland Department of Agriculture have cooperated on monitoring and correcting any environmental problems at agricultural facilities for over twenty years. Like many States across the Nation, a compliance agreement has been in effect between the agricultural agency and the soil conservation districts work with farmers. We turn to regulation and enforcement only if voluntary measures are unsuccessful. While the vast majority of farmers work with the system to protect the environment and optimize their operations, following best management practices to minimize losses of soil and nutrients, there are certain operations that necessitate enforceable state and federal regulation.
Given the mechanisms already in place through programs within the Maryland Department of Agriculture to optimize the use of nutrients on agricultural land, the Maryland Department of the Environment worked with Agriculture to develop a general discharge permit for CAFOs in 1995. Representatives of the Natural Resource Conservation Service and Soil Conservation Districts were also involved in these permitting discussions. A general discharge permit was proposed for CAFOs that recognized the importance of existing controls on farm wastewater, particularly waste management system plans and nutrient management plans, developed by the Natural Resources Conservation Service and the Soil Conservation Districts. The general permit took effect in December of 1996, and eight CAFOs have registered under the permit since that time.
In 1998, after several waterways were closed to fishing, swimming, and boating as a result of a toxic organism that thrives in nutrient rich waters, Maryland enacted the Water Quality Improvement Act, that requires the development of nutrient management plans and relies on the existing nutrient management planning process, extending the requirement for plans to all agricultural facilities with eight or more animal units. In addition, Maryland saw the need to supplement this Act by developing conditions to be placed in the water discharge permits for poultry processing facilities. These conditions require the poultry processors to assist their contract growers in developing individual nutrient management plans for each farm. The processors are also required to help growers dispose of excess chicken manure in a manner that will not increase nutrient loadings to the Bay. These co-permits, as they are called, are consistent with EPA's CAFO provisions in that they both have some level of enforceability. I mention our experience because it points out the need to strike a careful balance between protecting water quality and the fisheries and tourism industries that depend upon good water quality, and supporting agriculture. Maryland has learned that water quality, agriculture and the economy are inextricably linked.
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EPA's proposed CAFO regulations incorporate many elements of Maryland's successful program, including substantial reliance on nutrient management planning. We believe this approach will be successful in reducing over-application of nutrients without creating an undue hardship for the farming community, if it's implemented on a national basis.
It has been the State's experience that over application of litter manure on farm fields has significantly over enriched soils and allowed for run-off to impair waterways with excessive amounts of nitrogen and phosphorus. Adding dry operations to the definition of CAFO will further enhance the State's effort to regulate implementation of nitrogen and phosphorus based nutrient management plans under the Clean Water Act Authority to mirror the State's authority under the Maryland Water Quality Improvement Act of 1998.
Maryland believes that the regulations must also be able to address concentrations of smaller AFOs within a single watershed that can pose as much or greater threat to water quality as a CAFO with over 1,000 animal units. Therefore, any permitting scheme should be able to capture a significant number of these smaller farms, whether the animal units per farm threshold be 300 or 500.
CONCLUSION
In conclusion, I would like to reiterate Maryland's support for a national regulatory approach to dealing with CAFOs. Our country has a long tradition of supporting agriculture. At the same time, the United States is recognized as a global leader in water pollution control. The nation has come far in addressing water pollution problems from both point and non-point sources. Excessive nutrient loading and associated eutrophication in the Nation's waterways is the major water quality problem we are facing today. More must be done on all fronts in this area of environmental protection if we are to preserve the nation's water resources for future generations while continuing to provide high quality agricultural products enjoyed by our citizens. It is essential to achieving our Nation's goals for clean water that we develop a national approach to fairly and equitably ensure that these types of farm operations also contribute to the achievement of our water quality goals. Thank you.
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PREPARED STATEMENT OF HON. BUTCH OTTER
Chairman Duncan, I wish to thank you for holding this important hearing today. I believe that EPA's proposed CAFO (Concentrated Animal Feeding Operation) rule which was published in the waning days of the Clinton administration is unscientific, and is a threat to the livestock industry in Idaho and every other state.
The proposed CAFO rule is deeply flawed. The rule is flawed legally because it extends the permitting power of EPA far beyond what Congress and the Supreme Court intended. Congress authorized EPA to issue permits for CAFOs that impact the ''Navigable Waters of the United States''. The proposed rule would extend EPA permitting far beyond the bounds of the navigable waters of the United States. The Supreme Court ruled earlier this year in the Solid Waste Area of Northern Cook County (SWANCC) case that the definition of navigable waters of the United States is not elastic. This decision has apparently been ignored by the EPA.
The proposed EPA rule is not based on sound science. There is no evidence that small CAFOs are a leading cause of water impairment in this country. Furthermore, the rule as proposed would have minimal if any effect on water quality. CAFO's would be allowed to continue to carry out their same operations, but only after going through an extensively burdensome permitting program. Furthermore, the proposed CAFO rule would encourage the concentration of the CAFO industry into larger operations that can more easily handle the paperwork requirements EPA has imposed.
I am also concerned that the proposed rule fails to adequately consider the views of the states. 43 states are currently qualified by EPA to carry out CAFO permitting. All 50 states have Departments of Agriculture and/or Water Quality agencies that regulate and inspect their own CAFOs pursuant to state laws. The EPA rule ignores the considerable work the states are currently doing, and imposed more unfunded mandates on them by requiring them to update their own programs to enforce the new rule.
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For all of these reasons, Mr. Chairman, I believe that the CAFO rule is flawed and needs to be withdrawn for further review. I urge the EPA to heed the advice given to it before this committee.
PREPARED STATEMENT OF CHARLES MARTIN ''MARTY'' SMITH
Mr. Chairman, I am Charles Martin ''Marty'' Smith, a cattle producer and attorney from Ocala, Florida. I own and operate a family cattle ranch that has been in continuous operation on the same property for almost 150 years. Currently, our ranch is primarily a cow/calf operation. In addition, I also raise, market and sell replacement heifers and pure bred bulls to other ranchers. Historically, my family fed our steers in our own feedlot, but Florida no longer has a viable packing industry. Today, calves raised on our ranch are fed in feedlots in Texas, Oklahoma and Kansas before sold to the packer. Typically, I retain some or all of the ownership as these cattle are fed.
Like many others of our generation, my sister and I both had to seek employment off of the ranch in order to continue in production agriculture. Thus, I practice law in Ocala and focus my practice on agricultural and environmental matters. I am fortunate to represent a number of ranchers and dairy producers throughout Florida, and I have handled many CAFO permits and other environmental matters.
Along with other livestock producers across the country, I have serious concerns about the Environmental Protection Agency's (EPA's) recently proposed regulations concerning Concentrated Animal Feeding Operations (CAFOs).
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THE VOLUME OF DOCUMENTS
The proposed regulations appeared in the January 12, 2001 Federal Register following a December 15, 2000 signature date. Over four hundred (400) pages of regulations and preamble are part of the package. In addition, producers must evaluate a number of ''supporting documents'' that EPA has identified and described as follows:
—Development Document (EPA–821–R–003) (approximately 750 pages): Describes the technical basis for regulation, description of the industry, handling and treatment technologies and best management practices.
—Cost Methodology Report for Beef and Dairy Animal Feeding Operations (EPA–821–R–01–019, January, 2001) (approximately 350 pages).
—Economic Analysis (EPA–821–R–01–001, January, 2001) (approximately 430 pages): Describes financial impacts expected as a result of the proposed regulation
—Environmental and Economic Benefit Analysis (EPA–821–R–01–002, January, 2001) (approximately 420 pages): Describes the water quality improvements expected to occur as a result of the proposed regulation and the monetary value associated with these improvements.
—Environmental Assessment (EPA–821–B–01–001, January, 2001) (approximately 150 pages): Describes the environmental impacts caused by the industry.
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—Managing Manure Nutrients at Concentrated Animal Feeding Operations: Draft Guidance (EPA–R–01–017, January, 2001) (approximately 120 pages).
From a producer point of view, the sheer page volume is an overwhelming first step to overcome on the way to identifying what must be done at a particular operation. And even after that obstacle is overcome, the most diligent producer has difficulty answering the most basic question: ''How does this affect me?'' I am an attorney; and a fair amount of my legal practice has dealt with the permitting of concentrated animal feeding operations in the state of Florida. Even with my understanding of the law, from the proposals set forth by EPA, it is difficult to counsel clients on what they may be required to do.
WHO'S IN? WHO'S OUT?
The initial question that must be addressed is whether and under what conditions an operation may be defined as a CAFO, and consequently, have a duty to apply for a National Pollutant Discharge Elimination System (NPDES) permit.
WHAT THE PROPOSED REGULATIONS DO
There are essentially two (2) components of the proposed regulation package.
The first sets out to redefine which operations fall within the definition of ''concentrated animal feeding operation'' (CAFO) for Clean Water Act and all other purposes.
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The second identifies the effluent limitations guidelines (ELGs) which CAFOs must meet.
The options
EPA has identified various ''options'' throughout the document describing differing approaches to dealing with issues.
Two notable ''options'' are those concerning which operations will be required to be permitted. EPA has identified both a ''three-tiered option'' and a ''two-tiered option'' for permitting purposes.
The ''three-tiered option''
The ''three-tiered option'' would require NPDES permits for livestock operations in any of the three ''tiers'' identified.
One tier would require a permit for operations with greater than 1,000 head of beef cattle (other livestock sectors as follows: 700 mature dairy cattle; 1,000 veal; 1,000 cattle other than veal or mature dairy; 2,500 swine each weighing over 25 kg.; 10,000 swine each weighing less than 25 kg.; 500 horses; 10,000 sheep or lambs; 55,000 turkeys; 100,000 chickens; 5,000 ducks).
The middle tier of this option would require a permit for beef operations with 300–1,000 head (other numbers for other sectors) if any one of several identified risk factors were met.
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The final tier would require a permit for operations with less than 300 head of beef cattle (other numbers for other sectors) if the operation was ''designated.'' Designation could be made depending on a number of factors.
The ''two-tiered option''
The ''two-tiered option'' would require NPDES permits for operations with greater than 500 beef cattle. (Other numbers for other livestock sectors).
For operations below that number, no permit would be required unless the operation was ''designated.''
CO-PERMITTING
After the determination of whether an operation requires a permit, the question then arises as which entity that must obtain that permit. EPA has proposed that the owner or ''operator'' of a CAFO be required to apply for a permit. An operator is anyone that exercises ''substantial operational control'' over the CAFO. A number of factors are set forth that could signal ''substantial operational control,'' including whether the entity directs the activity of persons working at the CAFO through either a contract or direct supervision; whether the entity owns the animals at the CAFO; or whether the entity specifies how the animals are grown, fed, or medicated.
This concept alone could stifle innovations in the cattle industry, and affect my operation specifically. I am involved in a number of transactions that the industry refers to as ''custom feeding.'' In a custom feeding operation, cattle are sent to a feedyard to be ''finished out'' before harvest. Ownership of the animals may be retained by the original producer. Or, a number of producers may form a joint venture and own the animals at the feedyard. The feedyard operates as the entity at which the animals are physically located, fed, and maintained. The owner or owners of those animals may be hundreds or even thousands of miles away. In many instances, the livestock owner may have never visited the feedyard.
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I have retained ownership of cattle that have been finished out in Kansas and Texas. Under EPA's proposed co-permitting scenario, I could be required to be a co-permitee with each of the feedyards where my cattle are located. The law assigns certain responsibilities and liabilities in a permitting situation. As a co-permittee, joint and several liability inures. If I am required to be a co-permittee with the feedyards where my cattle are physically located, I would be jointly and severally liable for compliance with all permit conditions, and would likewise share responsibility for any and all permit violations.
The liability that co-permitting poses for producers is serious, and one which could easily stifle the custom feeding business. Logistically, co-permitting is rife with problems. A duty to apply for a permit rests with all owners and operators. Should a potential co-permittee fail to apply for a permit when a duty to apply existed, that entity could be cited for failure to apply for a permit.
LAND APPLICATION ON MANURE
Another issue of concern is that of land application of manure. EPA has proposed various ''options'' for handling manure. Requirements are identified for application of manure at the CAFO, and for off-site application of manure generated at the CAFO.
On-site application
For manure applied at the CAFO, EPA has set forth an elaborate tracking system to be detailed by the CAFO owner or operator. A CAFO must develop a ''Permit Nutrient Plan.'' This Plan will become part of the permit document and will detail each and every condition which must be met in order for the CAFO to remain in compliance with the NPDES permit in place at the operation. In addition to the Plan, records documenting the manure application process must be maintained. These records must detail: date the manure was applied; weather conditions at the time of application and for 24 hours prior to and following application; results from manure and soil sampling; test methods used to sample and analyze manure and soil; whether the manure application rate is limited to nitrogen, phosphorus, or some other parameter; amount of manure and manure nutrients applied; amount of other nutrients applied to the field reported in terms of nitrogen, phosphorus, and potassium (including commercial fertilizer, legume credits, and biosolids); calculations showing total nutrients applied to land; calibration of manure application equipment; rate of application of manure; method used to apply the manure, estimated nitrogen losses based on application method used, and route of nitrogen loss; field(s) to which manure was applied and total acreage receiving manure; what crop(s) was planted; date crops were planted in field; crop yields obtained; total volume or amount of manure generated by all animals at operation during each 12 month period; rainfall duration, amount of rainfall, and estimated volume of any overflow that occurs as result of any catastrophic or chronic rainfall event; and emergency response plan for CAFO.
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Off-site application
Two proposals exist for off-site manure application. ''Option 1'' would require the owner or operator of the CAFO to ''obtain assurances'' from the recipient of the manure that application was being done in accordance with ''proper agricultural practices.'' Those ''assurances'' could be in the form of a certification from the recipient of appropriate application, the fact that the recipient has a permit, or the existence of a State program requiring that application be done in accordance with certain standards. This ''option'' would likewise require the CAFO owner or operator to provide the recipient a brochure that describes the recipient's responsibilities for appropriate manure management. The recipient would be required to determine the nutrient needs of his or her land based on crop yields, conduct soil sampling at least once every three years, and not apply manure in quantities that exceed land application rates using a phosphorus standard.
''Option 2'' for off-site manure application would require the CAFO owner or operator to provide the manure recipient an analysis of the content of the manure and a brochure as described in ''Option 1.''
EFFLUENT LIMITATIONS GUIDELINES (ELGS)
Once an operation is determined to be a CAFO, extensive and expensive permitting requirements become the responsibility of the permittee.
BEST AVAILABLE TECHNOLOGY ECONOMICALLY ACHIEVABLE (BAT)
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In promulgating effluent limits, EPA must assess Best Available Technology Economically Achievable (BAT) for existing point sources. Factors considered in assessing BAT include: cost of achieving BAT effluent reductions; age of equipment and facilities involved; processes employed; engineering aspects of the control technology; potential process changes; non water quality impacts; other factors as the Administrator deems appropriate; and economic achievability. Economic achievability is determined on the basis of the total cost to an industrial subcategory and the overall effect of the rule on the industry's financial health.
With the exception of discharges in chronic and catastrophic storm events, including the 25 year-24/hour discharge, beef CAFOs are zero discharge operations. Under the current proposal, owners and operators of beef CAFOs must either prove that there is no direct hydrologic connection between surface waters and ground water at the CAFO ''production area,'' or sample the ''production area'' at least twice annually to demonstrate zero discharge. EPA considers these measures to fit within the framework of economically achievable technologies.
CURRENT STATE PERMITTING PROGRAMS
Many producers currently hold NPDES permits that are administered by their particular state authorities. In many instances where no permit has been issued to the operation, producers are adhering to best management practices. State and local management opportunities offer a more practical approach to achieving environmental goals than a national ''one size fits all'' approach. The varying topographies and climates across the country clearly indicate that different approaches to meeting goals must be allowed.
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Much time and effort has been invested in establishing workable, practical solutions to complex issues at the State level. In my home State of Florida, permitting is based on site specific requirements that vary from one region of the State to another. Different criteria apply in the Lake Okeechobee region than in other areas of the State. Further, Florida requires an individual permit, rather than a general permit for new CAFO operations. In part, this is to address some of the more critical environmental concerns and unique conditions that exist in Florida.
In 1997, I served as President of the Florida Cattlemen's Association. One of our biggest projects for the year was to develop and implement Water Quality Best Management Practices for cow/calf operations. This was done in cooperation with our State Department of Environmental Protection, the Florida Department of Agriculture, the University of Florida, and USDA/NRCS. Numerous other States have taken similar measures to protect water quality. These have been accomplished through cooperative efforts by cattle producers working with their State environmental agency along with their Department of Agriculture and USDA/NRCS. When done on a State level, these programs are able to address varying conditions, needs and requirements much better and much more efficiently than when done on a national level.
PRESUMPTIONS
Throughout the proposals, EPA sets forth a number of presumptions. The Agency: presumes that a hydrologic connection exists at a CAFO unless and until the producer proves otherwise; presumes that operations as small as 300 head should be permitted (''Three-Tiered'' Option); presumes that co-permitting will address manure management; presumes that the measures outlined are affordable for producers; presumes that producers will understand what they need to do; presumes that permits issued translates to problems solved.
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These presuppositions, however, do not negate the facts that producers know to be true:
A hydrologic connection between ground water and surface water may not always exist at a CAFO, and the resources needed to establish the fact could be substantial.
A family farmer or rancher could be held to permit standards similar or identical to those imposed on the industrial and manufacturing community where costs are easily passed on to the consumer.
Co-permitting will thwart industry alliance programs and innovations, and become a paperwork and procedural nightmare.
Family farmers and ranchers simply will not be able to afford to do what EPA is proposing.
Producers are concerned because they are unclear as to the specific measures that must be put in place at their operations.
Even if a permit is not required for a particular operation, the steps necessary to establish that fact are virtually as stringent as obtaining a permit.
The future of American agriculture and of family farming and ranching is seriously jeopardized by these proposals. By placing additional burdens on already marginally profitable family operations will of necessity change the face of the rural landscape. There will be no economic incentive for the future generations to choose to remain on their farm or ranch. The family business simply will not be able to sustain the family.
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CONCLUSION
For generations, my family has been caring for our land and livestock, just as thousands of other producer families have done. I want to continue to be able to do that in an economically sound, environmentally responsible manner.
I thank you for conducting this hearing, and thank you for your interest and concern for the livestock industry.
STATEMENT OF HON. NICK SMITH
Mr. Chairman and members of the subcommittee, thank you for the invitation to participate in today's hearing on management options for concentrated animal feeding operations, or CAFOs. As a dairy farmer from Southern Michigan and a member of the House Agriculture Committee, I have been closely following the regulatory developments that affect nutrient management and water quality protection at livestock operations. I am specifically concerned about the EPA proposed rules regulating CAFOs that were released last December. I would like to share with you my views on these rules and why I believe they are a poor approach to water quality protection. I would also like to bring to your attention legislation that I have introduced addressing state and federal responsibilities for managing animal feeding operations.
My first concern with the EPA rules for permitting of animal feeding operations is that they seem to be stretching the boundaries of Congressional intent with regard to the Clean Water Act. One of the major provisions in the Act was the establishment of a permitting system for point sources of pollution that discharge directly into surface waters. A review of the 1972 Senate floor discussion on the Clean Water Act clearly illustrates that agricultural, industrial, or any other operations in question were only to be considered point sources if they discharged measurable amounts of waste to surface water from a distinguishable source such as a pipe or ditch. Unfortunately however, the EPA has taken the single referral to CAFOs included in the Clean Water Act and developed 800 pages of guidelines detailing new regulations for livestock facilities, regardless of whether or not they discharge to surface water from a distinguishable source. It is questionable whether they even have the legal authority to do this.
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The EPA's own official cost estimate of the rules is almost $1 billion per year. Many believe that this cost will not be accompanied by improved water quality protection, and I think it is reasonable to assume that we can get a much better return for our environmental protection dollar. Furthermore, by their own admission, the EPA cost estimate is probably understated, because it assumes that all farms are already in compliance with their strict interpretation of current regulations. In reality, this is probably overlooking thousands of farms that currently do not have discharge permits. I believe, Mr. Chairman, that there is a real danger these compliance costs could regulate our animal production industry right out of the country.
Beyond the questions of Congressional intent and the enormous cost of the EPA rules, I believe there are several unreasonable provisions in the rules that make them unworkable. For instance, they eliminate the sensible permitting exemption that currently exists for operations that do not discharge waste except in the event of a 25 year, 24-hour storm event. This zero-discharge provision will force over 30,000 farms to obtain federal pollution discharge permtis—although many have never had a single discharge!
Further, the rule would pre-empt many successful state water quality programs that address animal feeding operations. For example, in my state of Michigan, we have established the Michigan Agricultural Environmental Assurance Program (MAEAP). I am sure that you will hear more about this program from Michigan DEQ Director Russ Harding in the next panel. We are very proud of the level of water quality protection that our state has achieved and the efficiency with which it has been done. Not surprisingly, other states are now looking at the MAEAP program as a model of successful animal waste management.
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Unfortunately, this program and other successful state-level livestock waste management programs are threatened. Because the EPA proposal is an unfunded mandate, states will have to shift limited resources from existing programs in order to administer discharge permits. A permit, in itself, does little to protect water. There is a real concern that this bureaucratic shift could actually harm, not help, water quality.
I have introduced legislation that would allow animal waste management programs to be results oriented, rather than process oriented. My bill, H.R. 1138, simply provides flexibility so that state-run programs that effectively manage animal wastes could be used as an alternative to EPA CAFO permitting, provided that water protection is not compromised. This approach has received strong support from numerous producer groups and state officials.
While there is always room for improvement, I believe that America's farmers are among the most conscientious guardians of the environment. If we can achieve the same or even better results at a fraction of the cost, why not increase state and local input and ideas into animal waste management programs by providing state alternatives to EPA's overzealous, one-size-fits-all permitting?
That completes my statement Mr. Chairman and I would be happy to respond to any questions.
PREPARED STATEMENT OF TERRY SPENCE
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My name is Terry Spence. I own and operate a four hundred arce livestock farm in northeast Missouri, in Putnam County. Over the years my farm has been a diversified operation raising beef, swine, dairy, poultry and crops, all of which has been common practice on sustainable family farms throughout the Mid-western states. At the present time my farm operation consists primarily of a beef cow-calf herd, hay and pasture land.
I appreciate the opportunity to stand before this committee today and present testimony on an issue that has become a national concern for public citizens and rural communities all across America. The consolidation and concentration of the livestock industry into fewer and fewer hands has left the nation's landscape dotted with large Concentrated Animal Feeding Operations (CAFOs). Large-scale feedlots are causing huge environmental disasters because of the massive amount of waste they generate, store and dispose of, in a manner that has raised real and significant concerns about public health and environmental degradation in rural communities around these facilities.
Missouri has been no exception when talking about national disasters related to CAFOs. Eighteen of Missouri's nineteen largest factory farms have been charged with violating water pollution control laws and other environmental laws. One of Missouri's operations, Premium Standard Farms, now majority owned by Continental Grain Company, is located in Mercer, Putnam and Sullivan Counties in Northeast Missouri. Over 2.5 million hogs are raised in this concentrated geographic area each year. In one month in 1995, Premium Standard Farms' facilities were responsible for six manure spills, killing over 180,000 fish and contaminating miles of stream and creek beds.(see footnote 4) From March 1997 to July 1998, Premium Standard Farms had at least twenty spills polluting Missouri's streams with more than a quarter million gallons of manure and urine.(see footnote 5) In 1999 alone, Premium Standard Farms' facilities were responsible for twenty-five waste spills and discharges in Missouri. Again ''almost a quarter million gallons'' of manure and wastewater and ''dead animal juices'' flowed to Missouri waters.(see footnote 6)
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The reason I'm referencing this operation is because one of their facilities is within two miles of my family's home. At this operation, Premium Standard Farms raises 80,000 head of hogs in seventy-two buildings with nine lagoons, having a total capacity of over 180 million gallons of feces and urine. I know from six year's experience the impacts these operations are having on a daily basis to my community, to the state's natural resources, and to public health in rural communities in which they operate. A good majority of the spills that I have listed took place at the facility near my farm.
On a broader scale forty percent of our nation's rivers, lakes and streams are considered unfit for fishing, swimming, drinking or aquatic life.(see footnote 7) Agriculture is the number one source of pollution problems in both rivers and lakes nationally.(see footnote 8) Feedlots are a major reason for the pollution in the nation's rivers, contributing at least ten percent to the impaired river waters.(see footnote 9) Research of the upper Midwest from 1983 to 1998 shows agriculture pollution led to the greatest number of pollution-caused fish kills in the Midwest. Agriculture pollution comes from feedlots, pesticides, herbicides and chemical fertilizer use, erosion and runoff. Feedlot manure pollution was responsible for seventy-three percent of the reported 405 fish kills caused by agriculture, and led to more fish kills than municipal and industrial sources of pollution.(see footnote 10)
While large manure spills from lagoons attract public attention, ongoing pollution problems at large-scale feedlots often go unnoticed. Under most state standards and permits, large lagoons are currently allowed to leak from one-eighth to one-quarter inch per day, totaling hundreds of thousands of gallons a year per lagoon and still be under a no discharge permit. A study of the Iowa Legislature published in 1999 indicates that leaking is part of the design standards for earthen lagoons and all lagoons should be expected to leak.(see footnote 11) A 1995 survey of hog and poultry lagoons in the Carolinas found that nearly two-thirds of the thirty-six sampled had leaked into ground water.(see footnote 12) In a three-year study (1988–1990) of clay-lined swine lagoons on the Delmarva Peninsula, researchers found that leachate from lagoons located in well-drained loamy sand had a severe impact on groundwater quality.(see footnote 13)
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Many traditional family farms have sufficient acreage to accommodate the waste from the farms' livestock. The nutrients in animal manure are beneficial fertilizer for sustainable family farms when applied at rates which the crops or forages can accommodate. While sustainable family farmers and ranchers consider manure from their livestock as an asset or benefit for production, the industrial factory farm CAFOs consider the effluent a by-product that's burdensome and costly to their production. Most CAFOs do not have sufficient land to apply the large amount of effluent they generate, so over-application is common, leaving saturated soils, nutrient build-up, leaching into ground water and run-off into waterways and streams in the immediate area.
The compounds and nutrients of manure coming from CAFOs differ greatly from that of traditional farm animals that run on free range. Confinement buildings have created the need for huge amounts of feed additives to stimulate growth and sustain animal health leaving massive lagoons with heavy concentrations of antibiotics, disinfectants, pathogens, heavy metals, (copper, zinc, etc.) as well as compounded nutrients (nitrogen and phosphorus)
We have reached critical mass in this country in relationship to Concentrated Animal Feeding Operations. Clean Water Act regulations for CAFOs, promulgated years ago, are not sufficient to deal with the rapid growth and expansion of industrialized, large-scale CAFOs. In addition, the failure of the U.S. Environmental Protection Agency to enforce even these inadequate regulations has allowed corporate, industrialized livestock production around the country to profit by imposing public health and environmental costs on rural communities.
The U.S. EPA has had the statutory and regulatory authority for over twenty years to deal with the problems arising from the concentration of animal factory farms and the inadequate methods used by the factory farm system for dealing with its wastes. EPA granted primacy to most states to administer the NPDES program under state laws with the EPA having oversight of the program. Somewhere along the line the oversight and guidance got lost and some states have left appropriate virtually unregulated. I have been involved with CAFO issues for the last eight years with the Missouri Department of Natural Resource's Water Pollution Control Program and Clean Water Commission as well as the U.S. Environmental Protection Agency. It is not hard to understand why we're in the national dilemma we're in today. With the proper oversight and enforcement by the Federal EPA the problems this country is facing today would not be as significant as they are. EPA's new proposed regulations have made improvements on certain issues but there is still uncertainty on others in regards to resolving the national pollution problems that exist.
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As a family farmer I'm very concerned about what is happening in American Agriculture today. We all know how this country got to the 21st century in regards to the food supply. The heritage of the American Family Farmer has played a vital role in providing an abundance of quality farm produce, which in turn supported strong healthy rural communities all across this country. The stewardship by family farms in regards to the land, their animals and community is something that over centuries we've taken pride in, but in recent years this pride is being replaced by disgust and anguish over polluting factory farm production. Since the industrialization of agriculture has taken place, the main focus of state and federal agencies has been directed on how to subsidize corporate entities through taxpayers' dollars, subsidies that promote and foster the devastation and destruction that has been caused by large CAFOs.
The environmental and public health harms imposed on rural communities by CAFOs are compounded by the fact that many of the factory farm facilities operate in a vertically integrated system in which the livestock and poultry processors have gained control of market access by consolidation of processing facilities. Family farmers can produce quality livestock more efficiently than the CAFOs, with little or no negative impacts to the environment, and with much benefit to regional and local economies. But many farmers and ranchers who do not want to produce in the factory farm system are denied access to markets by large-scale CAFO operators and factory farm integrators who also own the slaughterhouses. These integrators generally will not take animals from anyone except their own production operations. For example, it is no accident that so many family farmers have gone out of the hog raising business in the last few years. There aren't very many more hogs raised today in the U.S. than there were 10 years ago, but processing is becoming concentrated in fewer and fewer companies. As these companies lock out independent producers from their markets, slaughterhouses and packing plants, both these producers and consumers will have fewer and fewer choices in how their food is produced.
Many consumers want quality meats, and they want assurances that the meats they purchase are sustainably raised. Family farmers without access to the current markets are beginning to rely on an old traditional process, selling directly to consumers. To do this, we need access to government-certified slaughterhouses and we need assistance in setting up markets. CAFOs without question need to be regulated to prevent air and water pollution, and to prevent impacts upon the rural way of life. At the same time, the family farmer—the independent producers like me—need help in restoring what we once had. We can produce all the meat products that the public wants and needs; we can do this efficiently and sustainably—but we need a level playing field. When corporate giants have taken over the markets, we lose in all regards: fouled air, polluted waters, and family farmers run out of business.
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In summary, there are many sustainable systems and practices for the production of livestock and poultry. These alternative systems are economically viable and competitive with CAFO production, if CAFOs are required to bear the full cost of water pollution control and other environmental and public health measures necessary to deal with harms that they generate. The farmers and ranchers using sustainable production methods and systems have a genuine concern for the land and resources, as well as the welfare of the animals they produce. They view the land as a vital resource, not a dumping ground for industrial pollution from animal factory production systems. Local waterways and wetlands are valuable resources for their farms, ranches, and neighboring communities, not open sewers for the discharge of animal wastes. These alternatives are where the focus of federal funds and agency resources should be directed, not in trying to patch over a flawed factory farm technology that has been a failure from the very beginning.
PREPARED STATEMENT OF DR. FORBES WALKER, ENVIRONMENTAL SOILS SPECIALIST, UNIVERSITY OF TENNESSEE AGRICULTURAL EXTENSION SERVICE
Chairman Duncan, Congressman DeFazio and members of the subcommittee on water resources and the environment, I would like to to thank you for inviting me to address you on the topic of the management options for Concentrated Animal Feeding Operations (or CAFOs) and to discuss the proposed regulations to address water pollution from CAFOs by the Environmental Protection Agency (EPA).
I work for the University of Tennessee Agricultural Extension Service as an Environmental Soils Specialist. Part of my role as Environmental Soils Specialist is to advise and train county extension and other agency staff, livestock producers and private consultants on the current federal and state CAFO regulations and the development of nutrient management plans. I have also prepared nutrient management plans.
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I will begin my comments by emphasizing that as a scientist and a member of the public. I understand the need for clean water. Clean water is especially important to the agricultural community who rely on it for their livelihood. However, the management of the nation's water resources has to be based on sound science. A practical approach has to been taken to manage the potential pollutants of water in ways that are economically achievable based on reasonable agricultural practices. There are many things that agriculture can do to reduce its potential impact on water quality, but it should not be held to standards higher than other industries. A working solution has to be one that takes into account the interests of everyone and has achievable objectives.
In recent decades the livestock industry has changed dramatically. In the past, livestock production was essentially a ''closed'' system. Feed and forage was grown on the same farm or in the same locality as the animals. Manure produced by the livestock was returned as fertilizer to the soils in the area and produced more crops, feed and forage. This was then fed back to livestock in a continuing cycle. Today much of the livestock industry is highly specialized. Livestock are often raised many hundreds of miles from feed production areas. The resulting effect has been a much safer, more economical food production system. A negative result is the accumulation of manure and poultry litter at the point of livestock production. The management of this manure is the focus of the proposed EPA rule changes.
Recent initiatives by the United States Department of Agriculture (USDA) and the EPA include the Clean Water Action Plan in 1998 and the United National Strategy for Animal Feeding Operations released in 1999. Both of these strategies stress the need for maintaining water quality through voluntary rather than regulatory means.
Numerous meetings and workshops have been convened on the subject of managing change in agriculture and the livestock sector in particular. Many of these meetings have the same conclusions. As an example, I would like to draw the committee's attention to report on one such workshop published in August 2000: ''Evaluation of Comprehensive Approaches Needed to Improve the Handling of Farm Animal Manure and Benefit the Environment and the Farming Industry'' (available on the internet at www.jiee.org). The conclusions of this report were that:
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1. Realistic pricing is needed to transfer the real costs of environmental compliance to consumers.
2. The beneficial use of animal manures and commercial fertilizers must be maximized while minimizing environmental impacts.
3. Increased research and development is needed to move existing technologies into the marketplace.
4. A comprehensive farm and environmental bill is needed to update and consolidate regulations.
Technologies, economic solutions and policies can and must be developed to improve manures and poultry litter management. Combinations of different technologies can reduce the potential polluting effects of some manures. For example, the over-enrichment of surface waters with too much phosphorus can negatively impact water quality by stimulating excessive algal growth resulting in reduced oxygen content and even fish kills. Reductions in the quantity of phosphorus in swine and poultry manures, have been demonstrated by modifying animal diets. Plant breeding can reduce the amount of undigestible phosphorus in crops such as corn and soybean used in swine and poultry feeds. Enzymes can be added to feed to make more of the phosphorus available and thus reduce the amount of phosphorus that is excreted. Other simple technologies can change the type of phosphorus that is land applied and greatly reduce the pollution risk. Soluble forms of phosphorus are the most bio-available and thus, pose the greatest threat to water quality. Chemical amendments added to poultry litter can reduce the amount of soluble phosphorus by forming insoluble phosphorus compounds. Treated litter that is land applied contains much less soluble phosphorus and poses a much reduced risk to nearby waters. These technologies are good for the environment but add to production costs.
Farmers do not control the price of the products they sell, but have some control over their production costs. It is thus important for maintaining a viable, productive livestock industry that the added cost of manure management be considered in policy decisions, and addressed by either cost sharing or some other mechanism. This will enable producers to use technologies that can reduce the pollution risk of manures or pay for the movement of manures and poultry litters away from the concentrated production areas without disruption to the industry and the United States food supply.
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In December 2000 the EPA proposed changes to the current regulations to address water pollution from Concentrated Animal Feeding Operations. The proposed changes, if implemented, will have far reaching implications for the whole livestock across the United States. Public hearings were held on the proposed changes by the Environmental Protection Agency earlier this year with the stated objective to ''enhance public understanding of the proposed regulations for CAFOs''. I attended the hearing held in Chattanooga Tennessee on March 22. As someone who is reasonably familiar with the current and proposed changes to the CAFO regulations, I found the meeting to be wholly inadequate, doing little to ''enhance public understanding''. Presentations were too brief and only covered some of the broadest proposed changes. Many of the specific changes being proposed were not addressed and can only be found by reading the 186 page Federal Register (volume 66, number 9). The exercise appeared to be more for the benefit of the EPA than the public.
I would now like to make some specific comments on three general areas of the proposed changes to the CAFO regulations. These are:
1. Proposed refining of the definition of CAFOs.
2. Requirements for Nutrient Management Planning.
3. Cost of compliance.
DEFINITION OF A CAFO
One change being proposed is to refine the definition of a CAFO and introduce either a two or three-tier system of defining CAFOs. Under the two-tier system the threshold number of animals (or animal units) will be halved and many more CAFOs will be ''created''. Under the proposed three-tier system, operations with even fewer animals can be defined as a CAFO and potentially even more CAFOs will be created. Producers who are planning to either expand or relocate their operations or establish new ones in Tennessee and elsewhere are unsure of whether they need to plan to comply with the three-tier or the two-tier system.
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This situation is unlikely to be rectified until December 2002 when the final rule is released. This delay will almost certainly impact agricultural development in parts of the country.
The EPA estimates of the number of operations that will be defined as CAFOs under the different their systems are underestimates. For example, in the two-tier system the University of Tennessee estimates approximately 380 poultry operations in Tennessee will be defined as CAFOs. The Federal Register estimate is 261 for all animal species. In the three-tier system the University of Tennessee estimates there will be approximately 495 operations in the middle tier in Tennessee. The Federal Register estimate is only 265 for all animal species. Additionally, under the proposed rule this number could be further increased if off-site farmers using poultry litter are also be defined as a CAFOs. An on-going study in Tennessee has estimated that approximately 54 percent of poultry farmers have some of their litter going off-farm. With 900 poultry operations in the state and assuming litter moves to more than one other location, the number of operations defined as CAFOs in Tennessee could easily exceed several thousand, well above the EPA estimate.
Many states already have a permitting system in place. Permits are designed to fit the specific needs and environmental concerns of the state, rather than a national ''one size fits all'' philosophy. The existing system of defining and regulating CAFO's has only been in effect for a short time. The beneficial effects of changes in management practices will not become evident for several years. It is not at all clear that additional regulations, if any, are needed at this time to meet water quality goals in most watersheds.
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NUTRIENT MANAGEMENT PLANNING
A major theme running through the proposed CAFO rule changes is nutrient management planning and the need for producers to have site specific permit nutrient plans for PNPs. I fully support the need of producers to develop and use nutrient management plans, but question the need to mandate them for everyone. (Do we force all businesses to have a business plan?)
A nutrient management plan is simple in concept but rather more challenging to develop and can be even more difficult to put into practice. A nutrient management plan describes how inorganic and organic plant nutrients are to be managed on a farm to maintain soil productivity and prevent potential ground or surface water pollution. The nitrogen, phosphorus or potassium needs of each crop have to be matched with the soil test results from each field, and the amount, form, placement, timing and application of commercial inorganic fertilizers, animal manures and other organic nutrient sources.
Many proposed formats for nutrient management plans assume that manure nutrients can be managed as precisely as those from commercial inorganic fertilizers. As a practical matter there are many sources of uncertainty. Estimation of plant available nitrogen in manure is difficult. As with soils, nitrogen in manures is very dynamic and considerable losses can occur during storage, handling and during and after application. Manures can be sampled and analyzed but losses can occur from between the time a sample is taken and the time it is analyzed. These losses are likely to be different from the losses experienced on the farm. The amount of nitrogen that will ultimately be converted to the leachable nitrate form of nitrogen cannot be precisely predicted before application and is dependent on a number of soil and climatic factors.
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The goal of nutrient management plans should be to prevent the gross over-application of manures. This is possible, but the level of precision with current technologies is not the same as with commercial fertilizers.
Selection of the appropriate agronomic rate to apply manures is another challenge. Although manures generally contain all the major nutrients required by plants, they are not present in the balanced quantities needed by plants. Depending on the soil type and other factors, some crop species may need 5 to 10 times more nitrogen than phosphorus. This balance between nitrogen and phosphorus is rarely, if ever, found in manures. Application of manure to meet a crop's nitrogen needs will over apply phosphorus and may increase the threat of water pollution from phosphorus-rich runoff. It is important to distinguish between the different forms of phosphorus (soluble and total). Different manures or poultry litters with similar levels of total phosphorus can pose significantly different risks to water quality. Manures or poultry litters with less soluble phosphorus will pose a significantly lower risk.
The EPA is proposing that anyone receiving more than 12 tons of manure will require a permit nutrient management plan. For most manure types and most commercial farming operations 12 tons is not a viable substitute for fertilizers. To define operations that use as little as 12 tons of manure as CAFOs needlessly increases costs and discourages desirable management alternatives. What small or medium sized, non-livestock farmer is going to use manure or poultry litter on their operation, if they have to obtain a permit and pay to develop a permit nutrient management plan to do so? In addition, it is proposed that no manure can be applied within 100 feet of surface water. This restriction does not apply to commercial inorganic fertilizers that are many times more water-soluble than manures, and thus more of a potential water quality threat. The ''one size fits all' inference of this rule is that run-off from all fields to surface waters is uniform and does not account for critical preferential flow areas in fields. This is not the case in reality.
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The current proposal is that land-applications consider one of three options before applying manure based on the nitrogen requirements of the crop or the much more restrictive phosphorus rates. Most states appear to have opted for a system that uses a Phosphorus Index (a field by field assessment to determine the relative risk of phosphorus movement from a field). This Index was originally developed as a management tool and is now being used as a regulatory tool. This was never the intent of the Phosphorus Index. Scientists in many states have now modified the original Phosphorus Index to meet their state's conditions. Whereas many of these modifications are based on the best professional judgment of different scientists, few if any Phosphorus Indices have been verified in the field. Verification would be technically possible, but will take time and money.
An additional challenge following a manure nutrient management plan is the available of precision equipment that can accurately and uniformly land apply the manure at the low rates required in some nutrient management plans.
COST OF COMPLIANCE
Compliance with the proposed regulations will inevitably cost producers more money. In an industry where margins are small this will create additional financial pressures on already burdened sector of the economy, especially the smaller producers. The EPA estimates that it will cost the estimated 13,740 poultry producers that will be defined as CAFOs in the proposed rule $116.8 million to comply with the proposed regulations (Table 10-4) or $8,500 per CAFO. In Tennessee the current annual pre-tax return on each typical 24,500 bird house is only $6,000 to $7,000. This would have the effect of both driving out the smaller operator and encouraging larger operations to get bigger, thus further concentrating the livestock industry.
Much of the initial costs of compliance will be associated with developing site specific permit nutrient plans (PNPs). These are not only time-consuming plans to compile but will also have to be developed by technically competent individuals. It is suggested that some of this work will be conducted by Natural Resources Conservation Service (NRCS) or Extension service personnel. In many states that will require a considerable additional funding to support additional training and personnel needs. These agencies will be overwhelmed by the volume of plans that could be required under the EPA proposal. In some cases private consultants could fill some needs of the larger producers, but smaller operations would not be able to afford the costly fees which are likely to be several thousand dollars for even the smallest operation.
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In summary, concentrated animal operations enable livestock producers to remain competitive in the global economy. The current regulations proposed by the EPA are likely to be very costly for the average producer. A net effect will be to drive out many of the smaller producers and encourage larger producers to expand. More spending will be needed on supporting information agencies such as Cooperative agricultural extension services and the Natural Resources Conservation Service. Cost share programs will be needed to assist smaller producers with compliance. The United States farmer has had a long history of voluntarily protecting the environment when the right technologies are available to them. A good example in Tennessee is the adoption of no-till cultivation technologies that have reduced soil losses from some fields by as much as 90 percent and have greatly improved water quality from reduced sedimentation. This was achieved by the development of an appropriate technology, rather than regulations.
In conclusion, Mr. Chairman, let me again thank you and the members of the Subcommittee for granting me this opportunity today to briefly present a few concerns and issues relating to proposed regulations to address water pollution from Concentrated Animal Feeding Operations.
I will gladly address any questions you may have.
PREPARED STATEMENT OF THE AMERICAN FARM BUREAU FEDERATION
The American Farm Bureau Federation submits this statement to the Water Resources Subcommittee on the Environmental Protection Agency's ''National Pollution Discharge Elimination System Permit Regulation and Effluent Limitation Guidelines and Standards for Concentrated Animal Feeding Operations.'' Farm Bureau is the nation's largest general farm organization, representing producers of virtually every commodity grown or raised commercially in the United States. Our members are concerned about our environment and have a long history of implementing sound conservation practices. Farm Bureau continues to support implementation of incentive-based programs, and believes they are paying significant dividends in improved water quality.
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The increased federal regulation of animal feeding operations (AFOs) envisaged by EPA in the proposed regulations is neither needed in order to fill a regulatory vacuum nor justified by water quality data. States throughout the country have instituted their own non-National Pollutant Discharge Elimination System (NPDES) permitting schemes that address AFOs. The existence and success of these permitting schemes indicates that increased federal regulation of AFOs would result only in increased coordination costs for federal and state governments and unnecessary heightened regulatory burdens for producers. In addition to these financial and logistical problems, water quality data does not suggest the increased federal regulation of AFOs is even needed. EPA's data shows that impact on watersheds by feedlots and agriculture, in general, is only a problem in a few localized areas in the United States. Data does not suggest that the solution to such problems should be approached on a national level. Given the progress that state-based voluntary programs have made over the last decade it would go against sound public policy for EPA to increase its regulation of AFOs.
The Clean Water Act (CWA) grants statutory authority for EPA to regulate point sources and that CAFOs are deemed to be point sources under the CWA. EPA does not have statutory authority to regulate AFOs. The CWA does not define the terms ''CAFO'' or ''AFO.'' EPA defined both the terms through regulation. The proposed regulations indicate that EPA is now seeking to expand its regulatory definition of CAFOs to include operations that have not historically been treated as CAFOs but rather as unregulated AFOs. We believe the ability of EPA to expand the definition of CAFO to include many unregulated AFOs is clearly limited by congressional intent underlying the CWA.
There is substantial evidence in the legislative history of the CWA that Congress only intended to control the ''end-of-pipe'' discharges of effluents from CAFOs. Thus, only those CAFOs 122.23 if either of the following criteria are: (1) the operation confines more than 1,000 animal units; (2) the operation confines at lest 300 animal units, and (a) pollutants are discharged to navigable waters through a man-made devise, or (b) navigable waters pass through the facility and the animals have direct access to it.''
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The paragraph that follows states, ''provided, however, that no animal feeding operation is a concentrated animal feeding operation as defined above if such animal feeding operation discharges only in the event of a 25 year, 24-hour storm event.'' The plain language of this paragraph makes clear that the 25-year 24-hour storm event exception applies with equal force to both 1,000+ animal unit operations and 300 animal unit/direct discharge operations.
To the extent that the EPA intends to do away with the 25-year, 24-hour storm event exception currently found at appendix B of 40 C.F.R. part 122, such action would also exceed the authority given to EPA to regulate AFOs. Farm Bureau believes that the current 25-year, 24-hour storm event exception provides adequate assurance that facilities designed to such criteria will not discharge, while at the same time minimizing the need for livestock producers to comply with onerous and unnecessary permitting requirements.
LAND APPLICATION OF ORGANIC NUTRIENTS
EPA's proposal to condition permits on the adoption of certain best management practices, such as the application of manure at agronomic rates, clearly exceeds the authority delegated to the agency by Congress to address nonpoint sources of pollution. EPA's position that stormwater runoff from fields on which animal wastes have been applied represents a point source of pollution is clearly unreasonable in light of the overall regulatory focus of the CWA. Any move by EPA to include such conditions in the NPDES permit is a circumvention of Congress's implicit prohibition against the control of nonpoint sources of pollution through direct federal regulation.
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Farm Bureau objects to any revisions of the NPDES CAFO regulations that would explicitly include land application of animal wastes as part of the NPDES permit. Specifically, Farm Bureau believes that there is no authority in the CWA that would allow EPA to require a Permit Nutrient Plan (''PNP'') as a condition of an NPDES permit.
EPA does not have the authority to regulate non-end-of-pipe discharges. Because land application of animal waste generally results in non-point runoff, EPA may not include permit conditions that regulate such discharges.
CO-PERMITS
The regulation proposes the co-permitting of corporate entities that exercise substantial operational control over a CAFO as they are considered ''operators'' under the CWA.
The EPA is looking at integrated livestock and poultry operations where individual farmers contract to raise livestock and poultry for processors. While in some cases, the processor may own the animals, and may supple requisite feed for them, and may specify growing conditions,
of the farm. Developing the plan can take the services of a crop management specialist, an animal nutritionist, an agricultural engineer, a veterinarian, and a financial planner. Information on the soils, watershed concerns, crop yields, animal production, biosecurity methods, future goals of the farm, and the financial resources will need to be gathered. These plans may cost from $2,000 to $60,000 for farms to develop.
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Public agencies have been providing some of these services, however they can not be expected to provide much help to the large numbers of farms who will need this service. Public agencies are sources for some of the information needed to develop the plan, but it is likely that even they may be overwhelmed with the volume of information needed to be put together for all farms.
In the past, public agencies were the main sources of the designs and construction specifications of these practices (e.g., technical guidelines, best management practices and engineering specifications). Design work for some practices can be quite involved. Protecting a barnyard from off-site water sources, and controlling the runoff with sediment basins and filter areas can involve many separate hydrological and hydraulic calculations. Working within the constraints of existing facilities can add considerably to the cost of the design. This design work often exceeds the traditional engineering design fee of 6–10 percent of the total cost of the project. Inspection costs to ensure compliance with standards and specifications can also add greatly to the costs. Again, it is not likely that public agencies will achieve significantly increased funding to meet this need. The engineering costs to implement the plans may range from $2,000 to $50,000 per farm.
Because the required storage will force farms to treat the manure for odors, treatment costs should also be included in the total costs the farmers will have to pay. Some farms may be able to avoid treatment by incorporating the stored manure immediately. This is not always possible on many livestock operations. It is difficult to incorporate manure on a growing sod without damaging the crop, frozen ground and other impediments may prevent immediate incorporation. Treatment processes for manure have been proposed. Composting, trickling filters and constructed wetlands have been mentioned as treatment practices. Other alternatives such as anaerobic digestion, biodrying, and total resource recovery may also provide the treatment needed. Each of these treatment methods has a cost. The costs will vary from treatment system to treatment system, they will depend on the size of the farm, type of animals, and on the amount of offsetting byproduct sales.
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CONCLUSION
Over the decades agricultural producers have achieved extraordinary conservation gains through voluntary, incentive based programs to conserve fragile soils, wetlands, protect water quality and wildlife habitats. Farm Bureau urges the Congress to continue and increase its strong support for programs to improve water quality without increasing the costs borne by agriculture. Farm Bureau submits that the EPA's current effort to expand the scope of regulation goes well beyond Congressional intent, and, as a matter of policy, believes that the nonpoint source issues of animal feeding operations are best addressed through incentive-based programs.
PREPARED STATEMENT OF THE AMERICAN HORSE COUNCIL
INTRODUCTION
The American Horse Council (AHC) appreciates the opportunity to present this statement about existing and proposed Clean Water Act regulations for animal feeding operations. This is a very important issue to the horse industry and we commend the Committee for convening these oversight hearings to focus on existing rules and the potential impact of the Environmental Protection Agencies proposed rules.
The AHC is the national representative body for the U.S. horse industry in Washington, D.C. AHC membership includes just under 200 separate equine related associations which, in turn, represent several hundred thousand individual horse owners of all breeds and disciplines, ranging from racing to showing to recreation. Included in the membership of the AHC are the various national breed registries, state breeders' associations, organizations representing race tracks, horsemen, horse shows, veterinarians and numerous other equine related stakeholders.
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The U.S. horse industry involves more than 7 million participants, including nearly 2 million horse owners. The industry has an annual impact on the U.S. economy of $112 billion and supports 1.4 million full-time jobs with approximately $1.9 million paid in taxes at each level. Thousands of breeding and training farms supply the horses to provide the foundation upon which the industry is built. These farms also provide open envelopes of ''green space'' in otherwise heavily-urbanized areas. In addition, there are some 250-horse racetracks plus hundreds of facilities which host horse shows and expositions. These activities contribute beneficially to the entertainment, recreation and youth education within the communities they serve. Unfortunately, virtually all of these facilities either are or will soon be negatively impacted by the Clean Water Act and the EPA/CAFO proposals, which are presently before us for comment.
GENERAL COMMENTS
As the Committee is aware, on January 12, 2001 the Environmental Protection Agency proposed changes to its regulations defining Concentrated Animal Feeding Operations (CAFOs) and the guidelines limiting CAFO effluents. Under current regulations, an operation qualifies as a CAFO if it generally consists of 500 horses (the equivalent under the regulations of 1,000 cattle); operations of smaller size may qualify if they meet certain criteria.
The horse industry recognizes that the Clean Water Act (Act) and its associated regulations technically apply to horse operations. In addition, the horse industry, like any other agricultural or business entity, recognizes the need to properly manage manure from feedlots and accepts its responsibility of being good community citizens and stewards of the environment including the protection of our waterways.
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Nonetheless, the horse community has significant concerns that the proposed regulations fail to factor in the diversity of the livestock industry and various operations, climates, and geography. We believe that the rules, both existing and proposed, do not recognize and differentiate between the how the horse industry operates versus the necessarily more production-intensive concentrated animal feeding operations commonly utilized by other livestock producers dealing with food animals. It is this overriding concern that leads the horse industry to fear that even more of its facilities and farms will get caught up in certain unnecessary and unreasonable regulatory nets at much cost and little benefit.
Much of the current as well as proposed regulations and enforcement efforts associated with the Act are, again, based primarily on the regulatory writers' knowledge or experience with the non-horse agricultural industries. Understandably, preparing livestock or livestock products for processing and consumption is one form of agricultural production; breeding, raising, selling, training, competing and caring for horses is another and different form of agriculture. Unfortunately, countless horse facilities such as track, farms, training centers and fairgrounds have been caught in the web of the Act and EPA CAFO definitions and many more would be ensnared imprudently by the new proposal.
DIFFERENTIATING THE HORSE INDUSTRY'S OPERATIONS
Underlying many of the horse industry's concerns is that there are a number of material differences between horse and livestock operations. A few of these differences include:
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Many horses spend a good part of their day within the protected and covered enclosure of a stall or barn versus the open air/open ground environment of a feedlot operation.
While other livestock may deposit waste material throughout the day in open areas continually exposed to the elements on uncovered land, horses typically feed and defecate within the confines of a covered stall while standing on dry organic bedding.
Unlike other livestock operations, horse facilities have the soiled bedding changed at least once per day with such material then placed in canisters or floored bunkers for removal from the horse property on either a daily or weekly basis.
Nonethless, the current and proposed regulations do not take these fundamental differences in to consideration and place additional economic and operational burdens on the entire horse industry. Although much of the negative impact may not be ''intended'' to target the horse industry, nonetheless, it is being significantly impacted economically and harmed.
For example, if adopted as proposed, the new proposals will radically change the following:
The definition of a CAFO will be changed and will include even more equine facilities.
The definition of an AFO will be tightened, again increasing the number of impacted facilities.
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The potential exemptions and discretionary powers of permitting authorities, which allowed some differentiation of horse facilities in the past at the state level, will be eliminated. This will cause virtually any significant horse operation to apply for a permit.
The ''25-year/24-hour'' storm flood permit exemption will be eliminated, thus making even more facilities a CAFO.
The ''mixed animal'' calculation will be eliminated, which will adversely affect equine related activities like farming, expositions, shows, rodeos and fairs.
The rules will require ''processors'' that exercise substantial operational control over ''contract growers'' to be co-permitted. This is the perfect example of a livestock provision that has no basis for application to the horse industry. This provision cannot have any impact on the ultimate compliance of a facility with NPDES requirements and could have a tremendously-negative bureaucratic impact on the 2 million individuals who are the participants and stakeholders in our industry.
SPECIFIC CONCERNS
Specific concerns resulting from the proposed changes to the existing regulations include, but are not limited to, the following.
We question the logic and historical reasoning as to the calculation of animal units (AU's) which presently define one horse as equaling two cattle. We have yet to find a satisfactory answer for this material and frustrating difference. This formula continually puts the horse industry at a disadvantage with respect to the CWA and the EPA rules. With each proposed revision to CAFO definitions and animal unit thresholds the horse industry is forced further down this path with no chance to differentiate itself from other operations.
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The proposals as presently worded will, ultimately, cause even more horse facilities to be impacted and required to obtain a permit.
The elimination of exemptions will tie the permit writer's hands from being able to exercise any common sense-based judgments when trying to consider a horse facility as something not totally identical to a feedlot operation.
By dropping the ''25-year/24-hour'' storm exemption even more horse facilities will become CAFO's. This seems to be an unnecessary modification.
The frightening thought of applying co-permitting to the horse industry is a particularly threatening premise. Under the current proposed regulations, thousands upon thousands of individual horse owners and trainers of horses at race tracks, shows and fairs could be subjected to a whole new level of federal and state regulatory intrusion and potential liability simply because they own one horse, or even a share of a horse. Co-permitting would have a potentially devastating impact on the entire industry causing not only existing horse owners to become discouraged and leave the business but also discouraging new owners from entering. With fewer owners there will be a rapid erosion of the infrastructure and stakeholder upon which the entire industry is built.
Our industry has its own set of issues in dealing with this situation which are uniquely its own and not necessarily common with how other agricultural operations might deal with EPA matters. For example, (a) the amount of acreage is not considered; (b) naturally-occurring phosphorous levels are not considered; (c) crop removal for nutrient management is not an option for horse property since the horse is our ''crop'' and the pasture legumes are what our ''crop'' eats.
The economic and operational impacts of not only the new proposals, but of the current regulations and enforcement activities have already taken a tremendous toll on our industry. Already, certain facilities have invested millions of dollars each in order to attempt to bring their horse properties up to livestock feedlot standards. Frustratingly enough, even some of those facility owners who have invested significantly still find that they struggle to comply with feedlot standards while never being able to truly receive any clear regulatory assurance or certification of compliance at any stage.
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The already fragile economic base associated with the ownership of horses and horse facilities will not allow for that level of expenditure industry-wide. Many equine facilities are struggling economically now. Some are being sold for non-horse purposes and green-space is lost. The onerous additional costs that will be imposed by these proposed regulations on even more facilities may speed up that unfortunate process.
CONCLUSION
The horse industry believes that with respect to the Clean Water Act and its related proposals there must be some discretion and differentiation under the rules so that the differences of the industry and our concerns can be considered. The unique aspects of the horse environment and operations must be reviewed. Furthermore, there need to be exemptions applied as well as a willingness to understand and differentiate the horse business from the other mainstream agri-business endeavors.
Along these lines, the horse industry stands ready to cooperate with the Subcommittee and the EPA in crafting an appropriate approach for the horse industry in this area. As an industry and proud contributing force in today's society we fully understand and appreciate the need for fair and reasonable regulation when it comes to clean water and our environment. We do appreciate and recognize our responsibilities and obligations as concerned community citizens. We simply want to be understood and regulated for what we are, not for what we are not, animal feeding operations as that term is generally understood.
Towards that end perhaps the solution lies in undertaking an effort of EPA/Act guidelines redefinition followed by some special designation of horse facilities as ''non producing'' CAFOs.
Please note that this testimony represents positions that are still preliminary in nature as we continue to gather comments and information for the more voluminous and detailed comments we will be submitting officially to the EPA prior to the closure on July 30, 2001 of the public comment period. Thank you for your interest and consideration.
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PREPARED STATEMENT OF THE NATIONAL CATTLEMEN'S BEEF ASSOCIATION
The National Cattlemen's Beef Association (NCBA) herein submits the following testimony concerning the regulations recently proposed by the Environmental Protection Agency (EPA) with regards to the National Pollutant Discharge Elimination System (NPDES) Permit Regulation and Effluent Limitations Guidelines (ELGs) and Standards for Concentrated Animal Feeding Operations (CAFOs). For purposes of this Subcommittee's information, NCBA will highlight a number of items of concern in the proposed regulations. A comment will be submitted to the Agency.
NCBA has serious concerns with regards to the EPA proposal. The overall net effect of the regulation package could force thousands of operations to cease business, with a resultant devastating ripple economic effect on many rural communities.
WHAT IS A CAFO?
Current law
The current regulation defining Concentrated Animal Feeding Operations (CAFOs) is found at 40 CFR §122.23(3). That section outlines the criteria under which an Animal Feeding Operation (AFO) may become regulated as a CAFO and as such, become subject to National Pollutant Discharge Elimination System (NPDES) permitting requirements. A centerpiece of EPA's proposal is to change the definition of a ''CAFO.''
In general, the current regulation requires an operation to be permitted if it contains at least 1,000 head of beef cattle (other numbers for other livestock species) and discharges in instances other than the 25 year, 24-hour storm event.
Also under the current regulatory definition, if an operation has between 300 and 1,000 beef cattle and pollutants are discharged into navigable waters through a manmade ditch, flushing system or other similar man-made device; or if pollutants are discharged directly into waters of the United States which originates outside of and pass over, across, or through the facility or otherwise come into direct contact with the animals in the operation, that operation is subject to permitting requirements.
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Finally, current law indicates that if any operation is a significant contributor of pollution to the waters of the United States, that operation can be designated as a CAFO.
The new proposal
The new proposal would change all of that.
EPA has proposed both a two-tiered option and a three-tiered option for permitting.
The two-tiered option would require a permit for any operation with at least 500 head of beef cattle, unless the operation had received a determination that it had no potential to discharge. In other words, by meeting a numeric threshold, unless a ''no potential to discharge'' determination has been received, a permit would be required. Operations with less than 500 head of beef cattle would be required to obtain a permit if the were ''designated.''
The three-tiered option is more complex. That option would require farmers and ranchers to proceed through a decision tree much like that found in the hazardous waste regulations of the Comprehensive Environmental Response and Liability Act (CERCLA) and the Resource Conservation and Recovery Act (RCRA) in order to determine whether or not a permit would be required for their farming or ranching operations.
One tier of the three-tiered option would require a permit for operations with at least 1,000 beef cattle. As in the two-tiered option, the numeric threshold would trigger the permit requirement, unless a ''no potential to discharge'' determination had been made.
The mid-tier option would affect any livestock operation with at least 300–1,000 beef cattle. Operations with those number must meet all of certain identified conditions and must certify, under penalty of perjury, that it meets all of those conditions to be excluded from the definition of a CAFO. Some of those conditions are as follows: water of the United States do not come into direct contact with animals confined in the operations; there is sufficient storage and containment to prevent all pollutants form the production area from entering waters of the U.S. as specified on 40 CFR Part 412 (discussing effluent limitations); there has not been a discharge from the production area within the last 5 years; no part of the production area is located within 100 feet of waters of United States; manure is applied in accordance with various provisions that are identified in a Permit Nutrient Plan (PNP).
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If there are questions as to whether or not a particular operation would be required to be permitted at this mid-tier level, the preamble is clear that ''(o)perations would be on notice that if they had any doubts about their continued ability to meet the conditions for exclusion, they should decline to 'certify out' and should apply for a permit.'' (Fed. Reg., Vol. 66, No. 9, p. 3002). In other words, any operation with at least 300 animals would be well advised to apply for a permit.
The final tier of the three-tiered option would require an NPDES permit for any operation that was designated as needing a permit.
THE PERMIT NUTRIENT PLAN
As previously indicated, if the EPA proposal is finalized, the CAFO will be required to develop a Permit Nutrient Plan (PNP). This Plan would be developed by a certified or approved specialist, and would be a permit document, outlining specific permit conditions. Failure to comply with any of the terms of the PNP could be a violation of a permit condition and as such, the subject of an enforcement action. The PNP would include the following:
—Name and location of the CAFO;
—Name and location of owner or operator;
—Name and title of person who prepared the plan (PNP);
—Date plan was prepared;
—Date plan was amended;
—Executive summary containing information concerning: total average herd or flock size, identification of manure collection, handling, storage, and treatment practices, amount of manure generated annually, identification of planned crops, realistic yield goals, field condition as determined by the phosphorus index, soil test phosphorus, or phosphorus threshold for each field unit that will receive manure, number of acres that will receive manure, amount of manure transported off-site, animal waste application rate (gallons or tons/acre), and identification of watershed or nearest surface water body.
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—Records documenting inspections;
—Records tracking repairs performed on various equipment;
—Records documenting various information concerning manure application and crop production including: expected crop yield, date manure is applied,
weather conditions at time of manure application and for 24 hours prior to and following application, results from manure and soil sampling, testing methods used to sample and analyze manure and soil, whether manure application rate is limited to nitrogen, phosphorus, or some other parameter, amount of manure and manure nutrients applied, amount of any other nutrients applied to the field, calibrations showing total nutrients applied to land, calibration of manure application equipment, rate of application of manure, method used to apply manure, estimated nitrogen losses based on application method used, and route of nitrogen loss, field(s) to which manure was applied and total acreage receiving manure, what crop(s) was planted, date crops were planted in field, and crop yields obtained.
EFFLUENT LIMITATIONS
In addition to the PNP, certain effluent limitations will be applicable to the CAFO. For CAFO ''production areas,'' the following are among the requirements: there must be no discharge of process wastewater pollutants into United States waters; the production area must be designed and constructed to contain all process wastewaters including the runoff from a 25-year, 24-hour rainfall event; the production area must be operated in accordance with certain recordkeeping and inspection requirements.
For the CAFO ''land application'' areas, the following limitations are among the requirements:
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A Permit Nutrient Plan (''PNP'') must be developed and implemented. That PNP must contain the recordkeeping and inspection procedures as for the CAFO production area.
Manure may not be applied closer than 100 feet to any surface water, tile line intake structure, sinkhole, or agricultural well head.
The CAFO must take manure samples at least once per year and analyze them for nitrogen, phosphorus, and potassium. The CAFO must take soil samples once every three years if it applies manure to crop or pasture land under its control, and analyze the soil sample for phosphorus. The protocols for manure sampling must be documented in the PNP.
Manure that is transported off-site must be sampled at least once every year for nitrogen, phosphorus, and potassium.
Manure application equipment must be calibrated prior to land application at a minimum of once per year.
NO POTENTIAL TO DISCHARGE
A CAFO does not need to apply for an NPDES permit if the owner or operator has received a determination from the permit authority that it has no potential to discharge.
A ''no potential to discharge'' determination will be made on a case-specific basis. Unless an owner or operator has received a ''no potential to discharge'' determination, he must still make timely application for a permit. The permitting authority has discretion to accept or reject any additional information that the CAFO owner or operator may submit at a later date concerning this issue of ''no potential to discharge.''
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CO-PERMITING
An additional component of the EPA regulation is that of ''co-permitting.'' EPA has proposed to require those entities that exert ''substantial operational control'' over the CAFO to be permitted along with the owner of the operation. The permitting authority determines who is an operator for purposes of co-permitting. The factors to be evaluated in making that determination include whether the person: directs the activity of persons working at the CAFO either through a contract or direct supervision of, on on-site participation in, activities at the operation; owns the animals; or specifies how the animals are grown, fed, or medicated.
Once an entity is determined to be an operator of a CAFO, all of the permit requirements and conditions as set forth in the permit become the responsibility of that operator as a co-permittee.
OFF-SITE LAND APPLICATION OF MANURE
In certain instances, and NPDES permit will be required where no animals are present at the operation, but CAFO generated manure is applied. If the individual does not apply manure in accordance with ''proper agriculture practices'' a permit could be required. ''Proper agriculture practices'' means that the recipient of the manure will determine the nutrient needs of crops based on realistic crop yields for the area; will sample the soil at least once every three years to determine existing nutrient content; and will not apply the manure in quantities that exceed the land application rates calculated based on a phosphorus standard.
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ENVIRONMENTAL STEWARDSHIP
NCBA membership takes its environmental responsibilities very seriously. NCBA policy ''promotes the prudent use of natural resources,'' and recognizes that successful management is committed to ''sound stewardship.'' In an effort to recognize that stewardship, NCBA began to formally recognize those producers who exemplify the cattle industry. Currently beginning its eleventh year, the Environmental Stewardship Award program selects regional winners who have put in place outstanding resource efforts at their operations. From those regional winners, a national winner is selected. These regional and national winners are but a few of the hundreds of men and women who are providing an outstanding example of responsible management at their operations.
NCBA remains committed to scientifically based environmental management decisions.
Thank You
NCBA appreciates this Subcommittee's interest in the CAFO issue.
(Footnote 1 return)
Census of Ag 1997.
(Footnote 2 return)
Census of Ag 1997.
(Footnote 3 return)
Beef Production and Management Decisions, third edition; 1999; Robert Taylor, CSU and Thomas G. Field, CSU Professors, Department of Animal Sciences.
(Footnote 4 return)
Missouri Department of Natural Resources Manure Spill Data.
(Footnote 5 return)
Missouri Department of Natural Resources Inspection and Spill Investigation Reports of Premium Standard Farm's.
(Footnote 6 return)
Missouri Department of Natural Resources Records.
(Footnote 7 return)
National Water Quality Inventory: 1998 Report to Congress, U.S. EPA, 2000
(Footnote 8 return)
National Water Quality Inventory: 1998 Report to Congress, U.S. EPA, 2000
(Footnote 9 return)
National Water Quality Inventory: 1998 Report to Congress, U.S. EPA, 2000
(Footnote 10 return)
Compilation of Minnesota Department of Natural Resources fish kill data, Iowa Department of Natural Resources fish kill data, Illinois Department of Natural Resources fish kill data, and Missouri Department of Conservation fish kill, water pollution, agriculture pollution and manure spill data.
(Footnote 11 return)
Federal Register Vol. 66 page 2980 Jan. 12, 2001.
(Footnote 12 return)
Federal Register Vol. 66 page 2980 Jan. 12, 2001.
(Footnote 13 return)
Federal Register Vol. 66 page 2980 Jan. 12, 2001.