Chairman Chafee, Mr. Baucus, members of the Committee, good morning and thank you for inviting The Texas Cattle Feeders Association (TCFA) to be part of this hearing looking into the President's Clean Water Action Plan. TCFA represents cattle feeders in Texas, Oklahoma and New Mexico, an area that feeds 30% of the Nation's fed cattle. We are a State Affiliate of the National Cattlemen's Beef Association (NCBA). Mr. Chairman, I am Vice President of TCFA and serve on the Clean Water Working Group for NCBA, which has been working closely with EPA and USDA on all of the regulations and policies affecting the cattle industry. We in the cattle industry appreciate this opportunity to provide our insights on the Clean Water Action Plan and specifically the USDA/EPA Unified Strategy for Animal Feeding Operations.
Cattle feeders and family ranchers, play an integral role in protecting the environment. TCFA and many other NCBA state affiliates have implemented proactive programs to protect the environment. Some examples of TCFA's efforts include (1) 25-years of environmental research with universities to determine proper land application rates for manure and wastewater, groundwater quality testing and coring of lagoons to document liner adequacy; (2) development of the Environmental Quality Assurance Program to help feedyards comply with regulatory requirements; (3) development of a model Pollution Prevention Plan with Texas A&M; University, which received a 1994 Environmental Excellence Award from EPA Region 6; and (4) a TCFA staff engineer that works daily with our feedyard members.
Our industry is dependent upon the land and water and if we are to pass this onto future generations it is crucial that both are kept in excellent condition. However, not only is it important to protect the environment but in order to be successful as producers and as a Country we must maintain a strong livestock industry so 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 people.
Mr. Chairman, our industry welcomes the opportunity to work with EPA and USDA on determining the best solutions to any potential problems that may exist. NCBA has worked closely with EPA to educate them on the cattle industry. TCFA took the EPA officials rewriting the effluent limitation guidelines on a tour of feedlots in Texas and Oklahoma and NCBA has been assisting them through out the country. We welcome these opportunities because we want regulations and policy written on well-founded facts and data.
The cattle feeding segment of the beef industry has been regulated for more than twenty years. The Concentrated Animal Feeding Operations are held to a "zero-discharge" standard. Thus, we are not allowed to discharge into the waters of the United States, except in the 25 year 24 hour storm event. The implementation of this requirement has not been totally consistent from state to state but nor has any other aspect of the Clean Water Act. Forty-three states have been delegated the authority to implement this program and have done so with great success. Texas, Kansas and Nebraska account for nearly 70% of all the beef cattle currently being fed. Each state has a required state permit program for CAFOs adhering to federal requirements, but retain the right to impose more stringent standards if the appropriate state authorities determine it is warranted. Each state has a manure management plan requirement, as well as restrictions for the land application of the natural organic fertilizer on land owned or controlled by the CAFO. I mention these three states because they are successful examples of Congress's intent when writing the Clean Water Act, to give the states the autonomy and authority to protect the waters of the U.S.
The USDA/EPA Unified Strategy for Animal Feeding Operations has a broad goal and extremely ambitious timetable to minimize water quality and public impacts from Animal Feeding Operations (AFOs). We agree with this goal and as the primary stewards of the land, we attempt to accomplish this everyday. Unfortunately due to some politically driven messages, the average urban citizen has absolutely no idea about the efforts and dollars already spent by cattlemen to protect the environment. Citizens are inundated with data that is lacking in completeness and/or is so dated it is no longer considered accurate. The U.S. Geological Survey (USGS) in their 1993 scientific assessment of nation water-quality trends stated that the National Water Quality Inventory (State 305(b) reports) is so severely flawed and scientifically invalid that it could not be used to summarize water quality conditions and trends.
The Clean Water Action Plan makes enormous assumptions and accusations based on this very data. It bases its conclusions on stream data that represents only 19% of the rivers and streams in the United States and only 40% of the lakes. Even with such a limited amount of data, it appears that the Administration is able to determine the source of all the pollution and is ready to go down a regulatory path that will put numerous livestock producers out of business and cost hundreds of millions if not billions of dollars. I do not want you to think the cattle industry does not recognize in some places there are areas of concern that need to be addressed. However, we ask that when addressing those problem areas that EPA use sound science, base their decisions on accurate and complete data, and consider economic achievability and impacts in selecting technologies and implementation schedules.
At this point I would like to address some general concerns we have with the Unified Strategy for Animal Feeding Operations.
As the title states this is a Strategy for "Animal" feeding operations and thus applies to all livestock. The problem with this "one size fits all" approach is that the various livestock operations are run with extremely different management practices. Pork, poultry and cattle are produced differently from the beginning of the process all the way to the end. As I am sure all of you know, the cattle industry involves grazing operations and feeding operations of all sizes. The Strategy fails to recognize these key management differences. For example, the Strategy mentions storing dry manure in production buildings or otherwise covering the manure from precipitation. This may work for an indoor facility but anyone that has seen a cattle feedlot would quickly recognize this is practically and economically impossible, due to the numerous acres of the operation. Indoor, covered storage has little or no environmental benefit when runoff is collected and the site does not produce any leaching. But even more importantly, from an environmental perspective, we believe our industry is achieving the goals of the Clean Water Act without EPA dictating every specific requirement.
Just like the Strategy is a "one size fits all" for livestock the same approach was taken when considering regional landscape and climate differences. The Strategy fails to take into account the regional climate, hydrological and topographic conditions of an operation. Mr. Chairman, we have some cattle feedlots that are located 10 miles from surface water and are located on a 300-foot deep ground water table, while others may be 400 yards from a stream and over a shallow, 20-foot ground water table. These two operations are clearly different in their management practices due to the various risk factors, however in this Strategy they are treated the same. This does not make any sense, especially if the goal of the Strategy is to protect the surface waters of the U.S. The Strategy must recognize regional differences, especially when some of the key factors in determining risk include rainfall and soil type.
This leads into the next area of concern with the Unified Strategy and that is the assumption that somehow the size of the operations equates with the amount of environmental risk. As stated above, cattle operations are located in a wide range of climates and landscapes. In some cases a 2000 head feed yard may have a greater potential to harm the environment than a 70,000 head feed yard. In reality, it all depends on location, design and management practices. However, the Strategy does not recognize this and basically states that no matter where you are located nor how arid or moist of a climate you are in, the key indicator as to the potential harm to the environment, is the number of cattle in that feed lot. We do not interpret the Clean Water Act to make determinations on size with no other considerations. States need to be provided with statutes and regulations that have flexibility so as to avoid these very rigid "one size fits all" demands. We would encourage EPA to take environmental risk into account when considering who should be permitted and the type of design and management practices needed, rather than arbitrary numbers.
The size of a cattle feedyard is also used when EPA determines if an operator should have a general permit or individual permit. In Texas we have been under a rigorous general permit that I think most would say has been extremely successful. It covers all aspects of the operations and in my eyes would be determined to be a "functionally equivalent" (to use terms from the Strategy) NPDES program. However, after many years of success Region 6 EPA has come back and said exceptionally large operations may need to be placed under an individual permit. This determination is made purely on size and does not look at the potential risk to the environment based on site-specific conditions.
Mr. Chairman, this is exactly what the Strategy is proposing, in that no matter how successful you may have been under a general permit, EPA's position is that due to your size you should have an individual permit no other considerations, just size. This once again seems to defy logic when our goal is to protect the environment, not put overly burdensome regulations on large operations based solely on an arbitrary number.
On the other end of the spectrum is the discussion on watershed permits for clusters of feedlots in an impaired watershed. EPA removed from the Draft Strategy the portion stating that merely by your location in an impaired watershed you would need a permit. However, the final Strategy does call for watershed permits where CAFOs, smaller than 1000 head, are located in a watershed that is impaired due to the aggregate of these operations. It is our opinion that there needs to be scientifically based, site specific determination that each one of the AFOs in the watershed, that are required to get a permit, are proven to be a source of the impairment. Otherwise this is merely an arbitrary determination based on nothing but location. This is extremely concerning when we know many states have determined waters to be impaired purely on visual data and no scientific testing.
The Strategy calls for Comprehensive Nutrient Management Plans (CNMPs) for all AFOs by 2009. USDA and EPA stated that there would be flexibility as to what is included in a CNMP, however it is our impression that all operators will have the same basic requirements. One of those that is mentioned is feed management. While EPA has backed off on dictating feed management, it is still included in the strategy and there is a concern that down the road there will be mandatory feed requirements in the permits. As many of you know, feeding practices vary regionally and even seasonally and the goal is efficiency and productivity. For example, in Idaho many of the lots feed potato by-products and even feed french fries that are rejected from fast food restaurants. These examples of variations in feed would make it extremely difficult to regulate and should not be addressed under the Clean Water Act.
A second area of great concern in the CNMP is the discussion on land application of manure. This is an extremely important issue to the cattlemen and deserves great attention. At the beginning of this discussion land application of manure must be placed in two categories: (1) land application on the land owned or operated by the CAFO operator and (2) offsite land application. In Texas, the manure from feedlots is sold to third party contract haulers who then sell to farmers the product and service of applying the manure on their land. Texas permits require record keeping which includes: name of the contract hauler, amount of manure, and occasional nutrient testing. It is our concern that EPA would propose to hold the CAFO operator liable for off-site land application. To hold the operator liable for a product that has been sold and taken miles away from the CAFO would not only be extremely burdensome and costly, but may exceed the jurisdiction of the Clean Water Act. Farmers purchase manure fertilizer to improve soil condition and crop productivity. It would be cost prohibitive and in some cases decrease crop productivity for them to apply excess manure or commercial fertilizer.
As we interpret the Clean Water Act, the agriculture stormwater exclusion and the flow return from irrigation place this in the non-point source category and thus outside of the jurisdiction of the federal regulatory agencies. Mr. Chairman, we ask that EPA respect this exclusion.
The Strategy states in the guidance section that for offsite land application the owner operator would be required to do one or more of the following:
Provide data on nutrient content to the off-site recipient; Record the recipients of the animal manure and wastewater being transferred off-site; Obtain a certification from the off-site recipient that it has a CNMP.
The third option could potentially destroy the market for manure because this would place liability and an enforcement mechanism on the CAFO operator to make sure the farmer 10 miles down the road has a CNMP. This also seems to only apply to the application of manure; thus the farmer next door could over apply commercial fertilizer with no regulatory limitations or repercussions. If EPA goes forward with this idea and decides to regulate commercial fertilizer then the store or plant that sells or manufactures the product would be liable, just as the CAFO operator may be held liable for land application of manure.
Mr. Chairman this gets to the crux of the issue. The market for manure versus commercial fertilizer is a very fragile and competitive one and if EPA were to put regulatory restrictions on the land application of manure we would see many farmers switch to commercial fertilizer. This would be extremely detrimental to the CAFO operator and to the farmer because he would no longer get the organic material and other nutrients that make the use of manure so beneficial. This is not an area to regulate without making careful considerations and realizing the real world effects. We do not believe that EPA has documented problems related to land application of manure fertilizer by third-party farmers on land that is not associated with the CAFO.
As this committee looks to reauthorize the Clean Water Act it is clear that the administration will push for EPA regulatory and enforcement authority over non-point sources. One of the reasons for this is so EPA can regulate land application of manure without any jurisdictional impediment. EPA holds a tremendous amount of power in this area with their ability to reject state plans and to make grant determinations. We feel the states have done an excellent job handling the non-point source pollution, with their limited resources. We recognize there is still a long way to go. However, as compared to a point source, end of the pipe pollution, this is a much more difficult area to control and there has been limited economic resources put into this program. The data, science and technology, that would allow us to clearly identify the sources and magnitude of this pollution and the most cost effective way of controlling it is still evolving.
Mr. Chairman and committee members, we would ask that you let states remain in control of non-point sources and let the data evolve before allowing EPA to place huge regulatory burdens upon non-point sources.
As I stated at the beginning, the proposed Strategy is an extremely aggressive plan with very stringent timetable. The Strategy states there are 450,000 AFOs and EPA has set a goal of having every AFO with a CNMP by 2009. This would require the help of NRCS, private technical assistance and enormous economic resources. EPA would like to have the CAFOs designated as priorities (15,000 to 20,000 CAFOs) with permits by January of 2000. The models for these permits are to be finalized by August 1999 leaving three months to issue 20,000 permits. It is these unrealistic timetables that concern our industry. However, not only are these ambitious timetables of concern but so is the lack of economic resources we are seeing for technical support. The administration proposed to cut its State Revolving Fund (SRF) funding and the EQIP dollars have not been enough to cover the requests. To force AFOs and all CAFOs to hire consulting engineers to meet unrealistic deadlines adds to the economic hardship that exists today in our industry. This proposal almost assures that only the largest operations will survive. It seems illogical to propose an extremely cost intensive Strategy and then reduce funding.
Mr. Chairman, the Strategy also outlines incentives for operators to participate in the voluntary aspect of the program. The first incentive allows AFOs, which were placed in the regulatory program because of its location in an impaired waterway or because of a direct discharge, to exit after five years, if the problems have been corrected. This is not incentive because if the problems have been corrected the operator would be allowed to exit under current law, absent any incentive. The second incentive that allows the good faith operator a pass on a one-time discharge is one we would hope exists in all the programs EPA administers. Finally, the tax incentives are an excellent idea and at some time one will be extremely useful. The only problem is that many, if not most cattle producers are currently suffering financial losses, and cannot utilize any type of tax incentive at this time. We need to work together to put some real incentives in place that will truly encourage operators to participate in the voluntary program. Mr. Chairman, we would welcome the opportunity to sit down with EPA and attempt to draft some real, tangible incentives for producers.
Finally, Mr. Chairman, the cattle industry has a long history of working with USDA and there has been a level of trust built between the producers and the employees in the field. Secretary Glickman called for a "fire wall" between the voluntary and regulatory program to protect this relationship. While we appreciate the Secretary for his work in trying to establish this firewall, the cattle producer would rather see this placed in the statute to provide a statutory "clear wall."
Mr. Chairman, many environmental groups pushed for this Strategy. They used terms like "factory farming" or "corporate farming" to describe large operations that they feel are damaging the environment. Senators on this committee have spoken in recent weeks on the floor, asking for protection of the small farmer from the trend to consolidate agriculture. Well Mr. Chairman, this Strategy may do just that. It will force the small to medium size operations to expand or go out of business because of increased compliance costs and put much more pressure on larger operations to consolidate. On top of that, the issue that we should be talking about is not size but environmental protection. From an environmental protection perspective, the large operators have been regulated, will continue to be regulated and have the resources to protect the environment under current laws and regulations. Mr. Chairman, members of this committee, we need to ask ourselves and those individuals pushing this new Strategy: What is the goal?
Mr. Chairman, members of the Committee, let me reiterate the cattlemen's position. Our industry plays a crucial role in protecting the environment. Our livelihood depends upon the quality of the land and water. EPA has been regulating our industry for over 25 years. EPA admits that the current regulations have not been fully implemented and in some states the regulations have lagged behind others. However, EPA must also recognize many states are doing an excellent job and are going beyond what EPA requires under its regulations. With that in mind, we would recommend that EPA focus on the states that have not implemented the existing programs before implementing an entirely new Strategy which will place costly and unnecessary regulatory burdens on many producers.
This concludes my testimony. The Texas Cattle Feeders Association wishes to thank Chairman Chafee, members of the committee and specifically Senator Hutchison for this opportunity to testify. I would be happy to answer any questions you or other Members of the Committee may have.