When problems and solutions are identified and well-defined, farmers and ranchers have demonstrated a great willingness to solve problems. Over the past decade, agricultural producers have restored millions of acres of wetlands and have achieved an annual net gain in wetland conservation. We have protected over 36 million acres of fragile soils in the Conservation Reserve Program and another 135 million acres of highly erodible soils are protected through the use of conservation plans. Various forms of conservation tillage and crop residue management are used on more than 60 percent of cropland in the country. The conservation revolution that has occurred on farms and ranches across the country is a remarkable accomplishment in a relatively short period of time. Farmers and ranchers have proven that incentive-based partnerships work. We believe that nutrient management can and should be approached in a similar manner.
Farm Bureau is troubled that much of the justification for the administration's Clean Water Action Plan (CWAP) is drawn largely on the EPA's National Water Quality Inventory. This report indicates that agriculture is responsible for over 70 percent of the pollution in our nation's surface water. A closer look at the numbers in this report indicates that they are deceiving, scientifically indefensible, and result in strong biases against agriculture.
The U.S. Geological Survey in their 1993 scientific assessment of national water-quality trends indicated 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. However, the EPA continues to use state 305(b) reports even though they readily admit the use of drive-by assessments and the existence of biased data. The misperceptions continually left by their reports show that there is a national water quality crisis, that inconsistent and inadequate state programs are failures, and that agriculture pollutes 70 percent of the nation's streams.
Farm Bureau has carefully reviewed EPA's 1990, 1992, 1994 and 1996 National Water Quality Inventories and our analysis shows that what the EPA doesn't tell, and/or glosses over, in their reports is more revealing than the perception EPA tries to leave with the casual observer. In fact, Table 1 shows that EPA has no data for the seven agricultural subcategories in 35 states, tribes, and territories, but still publicizes a total for the number of miles of streams and rivers supposedly impaired by agriculture.
In EPA's report to Congress, it acknowledges that the assessment methods used by the states are terribly lacking. In fact, EPA's report is largely devoid of scientifically defensible data. Despite the original intent, the U.S. Geological Survey scientists in an article in Environment, indicated that EPA's National Water Quality Inventory is so severely flawed and scientifically invalid that it could not be used to summarize water quality conditions and trends. Farm Bureau is very concerned that if the data used to develop the Inventory is so severely flawed and unscientific that it can not be trusted, policy makers likewise should reserve policy decisions based on such faulty technical information.
Unfortunately, as with many issues, perception and reality often tend to reach different conclusions. Despite the misperceptions, all indications are that surface water quality is improving and the trend will more than likely continue in that direction for some time. (See Attachment #1 - Summary - Trends in Stream Water quality in the U.S.)
Recently, both livestock and crop farmers have come under attack for supposedly contributing excessive amounts of nutrients to the nation's streams and rivers. If nutrients from agriculture were contaminating our rivers and streams on a large scale and doing so in increasing amount and frequency then it would be reasonable to expect that the nutrients would be showing up in increasing amounts at the mouth of the Mississippi River. However, since 1983, the nitrate trend in the Mississippi River has been just the opposite. In fact, the total mass of nitrate-nitrogen delivered to the Gulf has been decreasing.
The decline in nitrate cannot be attributed to publicly owned treatment works (POTWs), precipitation or wildlife populations. POTWs are serving an increasing population but, with few exceptions, have no restrictions or requirements for treating or reducing nitrate. Those that are required to treat ammonia simply convert it to nitrate and discharge it. Overall, the nitrate contained in precipitation (atmospheric deposition) should have stayed the same or increased since the average amount of precipitation has increased. Wildlife populations have increased also, so their output of nitrogen has increased. Therefore, since nitrate from these three sources has increased, there must have been a clear decrease in one or more of the other four major potential sources of nitrate, i.e., nutrients from manure, oxidation of the soil's natural organic matter, nitrogen from legume crops and/or nitrogen fertilizer.
Since the POTWs, precipitation, and wildlife are increasing their output of nitrogen to the streams, that means that farmers are the only ones that have done anything at all to reduce the amount of nitrate flowing into the Gulf of Mexico. Farmers have learned to do things better, faster, cheaper and more efficiently compared to the way they did things in the 1960s and 1970s. All of this reduction occurred as a result of incentive programs and market forces rather than rigid compliance with federal permits.
There are three distinct periods of nitrate-nitrogen flux entering the Gulf of Mexico from the Mississippi River since 1955. The first period is for 12 years, from 1955 to 1966. Loadings ranged from 0.44 to 0.18 million metric tons per year. Interestingly, the trend for that period was headed down, see Figure 1. Each year during this first decade, the nitrate-nitrogen levels decreased by an average of 17 thousand metric tons (this is the slope of the trend line).
Figure 1
However, things changed in the mid-1960s and the nitrate-nitrogen loadings, while varying from year to year, increased steadily and dramatically to about 1.25 million metric tons per year by 1983 . During this 17 year period, nitrate-nitrogen loadings increased annually, on average, by 46 thousand metric tons (slope of the line).
Almost as suddenly as conditions had changed in 1966, the situation changed again in 1984. Scientifically monitored data from U.S. Geological Survey indicates that nitrate-nitrogen loadings have fallen dramatically. In other words, except for the flood of 1993, the trend has been downward since 1984 (the slope returns back down to an annual decrease of 17 thousand metric tons each year). This data indicate nitrate-nitrogen loading began to decrease more than 15 years ago and appears to indicate that there is not a nitrate crisis in the Mississippi River.
So what happened? At least three major factors converged in the early 1980s and began to play themselves out together:
1. The farm economy was very volatile. Many farmers overextended their land holdings during the high interest rates of the 1970s as they planted to meet the growing demands of a world market. Then an embargo was placed onto grain exports to Russia. Meanwhile, energy prices escalated rapidly and increased the cost of fertilizer causing farmers to pay closer attention to the amount of nitrogen fertilizer they applied. Farm debt load was high, grain crops were in surplus and prices were low. Variable expenditures, such as fertilizer, were one of the few things that farmers could control and they watched these expenses carefully. Nitrogen fertilizer use leveled off at 10 to 12 million tons per year and has stayed around that level ever since. Corn researchers continued to produce hybrids that increased yield and increased their ability to use nitrogen fertilizer. In fact, on a five-year rolling average, the number of pounds of nitrogen fertilizer applied to grow a bushel of corn has declined 22 percent from a high of 1.31 lbs. N/bushel produced in 1984, down to 1.02 lbs. N/bushel in 1998. 3. In the late 1980s, research produced a new late spring soil nitrogen test and began to show when farmers need not apply additional fertilizer and to what degree to apply it if it was needed. This test has received widespread use in Iowa. The results of using the test may be beginning to show up as a part of the downward trend in the concentration of total nitrogen in the Iowa River. This finding was part of a recent report published by the U.S. Geological Survey which analyzed 20 years of river data from 1974-1994. Farm Bureau believes these examples exemplify market-based approaches and financial incentives which provide the proper foundation.
In conclusion, there is growing awareness that cooperative approaches are likely to be more effective in producing further gains in environmental compliance and improvements. "Quite simply, it is more effective to prevent pollution than to punish violations after they occur, to harness market forces rather than to rely solely on command-and-control directives, and to respond affirmatively to firms that seek partnerships to advance environmental priorities in harmony with economic activity."
It is critical that adequate federal resources be allocated to address remaining water quality challenges. Collectively, we have spent over $100 billion over 26 years in dealing primarily with urban point sources of pollution, which, by all accounts, have only achieved a 35 percent reduction in total nitrogen discharges from POTWs. As priority now shifts to nonpoint sources, resources should shift as well. The State Revolving Loan Fund should be retargeted to rural areas and additional funding should be allocated to better water quality monitoring, technical assistance and cost-share programs rather than new regulatory programs at the federal level that compete for already scarce dollars.
Strategy for Animal Feeding Operations
EPA and USDA-NRCS have issued their Unified National Strategy for Animal Feeding Operations. This strategy would expand permit-based regulation to an increased number of livestock farms and would also require them to prepare and implement nutrient management plans. This strategy also encourages all farms with livestock to engage in a voluntary nutrient management program with cost assistance. The strategy targets for regulation those concentrated animal feeding operations (CAFOs) that have not yet been regulated, other livestock farms that do not comply with best management practices for water quality and farms that are located in "sensitive" watersheds. These last two criteria can be used to increase the number of livestock facilities being designated as CAFOs and subject to a permit, by including farms that have fewer than the CAFO definition of 1,000 animal units' on a farm.
Comments submitted by AFBF express farmer concerns about the increased scope of regulatory authority, the expansion of permit-based regulation, and the adequacy of the water quality data. The voluntary, incentive-based portion of the strategy recognizes the needs of agricultural businesses and can work to protect and improve water quality if properly funded. The financial burden on farmers to develop and implement nutrient management planning, whether required or voluntary, is a major limiting factor. At this time of low commodity prices farmers are unable to invest in capital-intensive water quality protection. Enhanced federal and state resources are necessary for NRCS staffing and for cost-share assistance to farmers. The strategy's approach for expanding regulation over a greater number of farms makes accurate water quality data a crucial concern to farmers across the country.
Our comments to EPA and USDA on the Strategy and to EPA on the Region 6 general permits are attached.
What is needed are additional resources better targeted to impaired watersheds and directed at on-the-ground activities and practices that will result in further water quality improvements. Agricultural research, technical assistance and conservation initiatives are keys to continued agricultural abundance. We look forward to working with members of this committee to develop the concepts and framework needed to achieve balanced resource conservation.
Summary Trends in Stream Water Quality in the U.S.
The United States Geological Survey, in a study, Trends in Stream Water Quality in U.S., has found that traditional indicators provide evidence of improvement in stream water quality during the decade of the 1980s, when the economy and population showed significant growth. The scientific assessment of national water quality from 1980 to 1989 by USGS indicates:
The National Water Quality Inventory (State 305(b) reports) is severely flawed and scientifically invalid. EPA's inventory cannot be used to summarize water quality conditions and trends.
Dissolved-oxygen concentrations changed little from 1980 to 1989, but streams in urban areas showed slight improvement in dissolved-oxygen conditions, possibly reflecting improvements in point-source controls. Among the four land-use types (agriculture, forest, range and urban) the average concentration of dissolved oxygen were lowest at stations in urban areas.
Nitrate concentrations and yields remained nearly constant nationally, but they declined in a number of streams draining agricultural areas where nitrate levels have been historically high.
Total-phosphorus decreased slightly in all land-use classes. Decreases in total-phosphorus yield were greatest in the agricultural and range land-use areas.
Suspended-sediment concentrations and yields decreased slightly in most of the country, and the quantity of suspended sediment transported to coastal segments decreased or remained the same in all but the North Atlantic region. The steepest declines occurred in areas dominated by range and agricultural land.
Concentrations of the toxic elements arsenic, cadmium, and lead and the organic compounds chlordane, dieldrin, DDT, toxaphene, and total PCB's all declined significantly.
Trends suggest that control of point and non-point sources of fecal coliform bacteria improved over the course of the decade.
Downward trends of dissolved solids were especially common in the central part of the country, the Pacific Northwest, and far southwestern United States, whereas upward trends were most common in drainage to the Gulf of Mexico and Atlantic Ocean.
Denise C. Coleman
Program Analyst Natural Resources Conservation Service
ATTN: AFO PO Box 2890 Washington, DC 20013-2890
Re: Comments on the Unified National Strategy for Animal Feeding Operations.
The American Farm Bureau Federation 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 in partnership with government. Agriculture has made substantial investments over the last dozen years through numerous incentive-based programs that are paying significant dividends in improved water quality. We believe that the trend is in the direction of continued improvement in water quality. While there may be site-specific problems in the livestock sector, these problems are manageable and we therefore question the need and authority for a "significant expansion" of regulatory efforts as proposed by this strategy.
The draft AFO strategy raises a number of specific concerns and questions that must be addressed if we are to achieve the desired goal of protecting water quality in the most economical, most practical, and least burdensome way for farmers and ranchers. A more detailed account of these concerns follows.
Improper Redefinition of AFO and CAFO
The Clean Water Act (CWA) conferred broad power upon the EPA to regulate point sources and that CAFOs are deemed to be point sources under the CWA. On the other hand, AFOs are largely unregulated, and EPA does not have the statutory authority to regulate them. The CWA does not define the terms "CAFO" or "AFO." Rather, EPA defined both the terms through regulations. Through the AFO strategy, it appears that EPA is planning on expanding the definition of CAFOs to include operations that have not historically been treated as CAFOs but rather as AFOs or simply as agricultural stormwater runoff. To the extent that this can be achieved lawfully, EPA must go through the formal rulemaking procedures. However, EPA's ability to expand the definition of CAFO is restricted by congressional intent.
In the CWA Congress intended to control the release of "end-of-pipe" effluents from CAFOs, in that only those CAFOs which would collect and concentrate waste for discharge through a definite point source outlet would qualify as point sources under the definition and be subject to the NPDES permitting program. Accordingly, the AFO strategy is unlawful to the extent that it seeks to treat runoff from precipitation as a type of discharge that can be regulated under the NPDES program. Indeed, it is our position that a facility may not be deemed to be a CAFO simply because precipitation-induced runoff from fields upon which animal wastes have been applied leads to pollutants entering waters of the United States. The proposed strategy seeks to regulate the application of manure by a farmer to his fields.
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 NPDES permits would therefore be an unlawful circumvention of Congress' implicit prohibition against the control of nonpoint sources of pollution through direct federal regulation.
Confusion Regarding Those Who Are Regulated
There is confusion and a lack of awareness by individual producers about the requirements of the NPDES program and any obligations with which they might have to comply. This is largely due to the view held by most states that the CAFO requirements did not apply to agricultural livestock operations, regardless of the number of animals, if they produced crops and feed on the farm and had sufficient land to spread the manure. According to the prevailing view, these were simply dairy, hog, poultry and other types of farms, not "animal feeding operations." The draft AFO strategy seems to indicate otherwise and does not make clear how these producers are supposed to definitively determine whether they are subject to regulation.
The confusion surrounding the definitions of AFO and CAFO naturally leads to differing interpretations and the draft AFO strategy simply exacerbates this confusion. The draft AFO strategy should aim to clarify the definitions of AFO and CAFO and the obligations of those subject to the corresponding regulations. Otherwise, with the CWA's dual administrative and enforcement authority whereby both EPA and those properly delegated states may administer and enforce the NPDES program, farmers are likely to be caught in the middle of a fight between the states and the federal government regarding their obligations under the CAFO regulations. Expansion of the NPDES Permitting Program
We are concerned about the intention to expand current NPDES permitting to include a larger number of facilities below the 1,000 AU threshold. While EPA currently has the regulatory authority to require certain AFOs to obtain NPDES permits, we believe that this authority is limited to the very few AFOs that discharge pollutants from their confinement areas to waters of the United States. We also believe that the draft AFO strategy's intent to regulate a significant number of AFOs below the 1,000 AU threshold is neither justified nor is it the most effective means to achieve progress on the ground. Indeed, the magnitude of such a change would require significantly more resources for a program that has been historically a low priority of the states because of the lack of adequate resources. EPA and USDA have set up the states and farmers for failure. It will be a monumental task for state water quality agencies to permit those confinement operations above 1,000 AUs, let alone permit operations with fewer than 1,000 AUs. The financing for farm assistance and for necessary staff is not available to accomplish this goal.
Furthermore, the development of the Unified Watershed Assessment ties future nonpoint source funding from EPA to those watersheds listed as impaired. With the amount of watersheds that have been listed by states, the connection between the Unified Watershed Assessment and the AFO strategy means that more livestock operations will be subject to regulation, putting a greater strain on resources.
Need for Improved Water Quality Data
Data collection is given a very high priority in the AFO strategy. This data and "information" is ostensibly collected for several reasons, including better decision-making, enforcement and public information. The AFO strategy proposes to collect information on the location, characteristics, size, type of animals and environmental impacts of animal feeding operations from a variety of databases, including the Department of Agriculture. This information will then be cross-referenced with data on impaired and priority water bodies. We are concerned from two standpoints about this approach.
First, the collection of data on animal feeding operations (farms and ranches) is a general cause for concern from the standpoint of an individual's right to privacy and the potential misuse or abuse of data and other information.
We are very troubled about the potential for abuse and or misuse of this information by individuals or groups with other agendas or who simply do not understand agricultural practices. Furthermore, the information collected and made available to the public will not be limited to just those operations over the 1,000 AU threshold, thus potentially subjecting all farms with livestock to criticism or harassment over their farming practices. We strongly support an approach that protects private information as a necessary component to the development of efforts to protect agricultural water quality.
Second, the collection of data on livestock farming operations via the USDA database of farm program participants presents another very serious concern. The EPA has attempted to obtain information about livestock farming operations from databases of participants in USDA programs such as NRCS technical assistance and the Environmental Quality Incentives Program (EQIP). This is very disturbing and presents a serious threat to the continued success of voluntary incentive-based programs like EQIP, the Wetland Reserve program, the Conservation Reserve Program and other similar initiatives. The great conservation gains in the recent years that will have direct long-term benefits for water quality have come through voluntary, incentive-based approaches associated with farm programs, not through regulatory programs under the CWA. The success of those initiatives is due in large part to the long history of voluntary partnerships between farmers, ranchers and the Department of Agriculture. Over the last half-century, a unique relationship has developed between the USDA, specifically the Natural Resources Conservation Service (NRCS), and farmers and ranchers. It is a relationship built and sustained on trust, confidential advice, information and technical assistance. That unique relationship is seriously breached when access to confidential, voluntarily provided farm-specific information is granted to other agencies for regulatory purposes or for the purpose of generally informing the public. Additionally, NRCS's traditional role must be protected. NRCS autonomy must be clearly established with relation to the regulatory role of other government agencies. We appreciate the NRCS-issued policy statement that prohibits the release of site-specific information in conservation plans and case files.
Lastly, while we generally agree with the approach of targeting priority watersheds first, the water quality data on which this approach is premised is inadequate. Farm Bureau has extensively reviewed the agency's 1990, 1992, and 1994 National Water Quality Inventories. In the agency's subsequent report to Congress, it acknowledges the weakness in the assessment methodology. The U.S. Geological Survey has stated in published reports that the National Water Quality Inventory data is so severely flawed and scientifically invalid that it could not be used to summarize water quality conditions and trends. The fundamental problem with the information from the state section 305(b) reports is the overall low priority and limited resources states place on water quality monitoring. The reasons the National Water Quality Inventory report numbers are so contentious is because: 1) There is no scientific, national random sample taken to assess river miles; 2) States tend to assess water bodies with suspected problems; 3) Scientific monitoring accounts for less than 40 percent of the reported data; 4) More than 42 percent of the data is based on visual evaluation of a water body; 5) Data may be several years old; 6) Data is often double- and triple-counted; 7) There is unscientific source attribution; 8) No consideration is given to natural background levels; and 9) No assessment is made of stream morphology (natural erosion).1
Unfortunately, as with many issues, perception and reality often tend to reach different conclusions. Despite the perceptions, all indications are that surface water quality is improving and the trend will more than likely continue in that direction for some time. For these reasons, we are concerned that this data is not reliable and that policy decisions surrounding the AFO strategy should be made very carefully and with the fundamental weakness of the National Water Quality Inventory in mind. The agency should make all efforts to support its decision-making with scientifically valid monitoring data.
Resources and Implementation
The AFO strategy proposes to inspect all priority CAFOs within three years and all CAFOs within five years. In addition, it seeks to "significantly expand" permitting by targeting the largest CAFOs by 2003 and all others by 2005. We seriously question whether the agency and the states have sufficient financial and personnel resources to accomplish that task within those time frames. But we strongly believe the industry does not have the resources to meet those goals. We have spent over $100 billion in the last 26 years to address point source discharges from primarily urban and suburban facilities, principally publicly owned treatment works. The resources devoted to rural point and nonpoint efforts have come largely through the agricultural programs and some CWA section 319 grants to states. The spending has been woefully inadequate. Given the enormity of the task, it is inappropriate to establish such an ambitious time frame for compliance and enforcement without the necessary resources to accomplish the task.
Regulation vs. Incentives
We strongly believe that the approach of significantly expanding the CAFO program moves in the wrong direction. Not only do we believe the agency's recent efforts to expand the scope of regulated activities goes beyond congressional intent, but we believe as a matter of policy it is more appropriate to address these inherently nonpoint source issues through incentive-based programs rather than through increased regulation and permitting. The voluntary program as outlined in the AFO strategy can work to assist farmers in their efforts to improve water quality. The usual problem is in securing the necessary financial commitment of government assistance to allow the farmer to implement a CNMP. We are strongly concerned that farmers will bear the blame for a plan's failure, when in reality the problem is the result of a lack of government resources and financial incentives.
Additional sources of funding to assist producers must be developed. Existing authorities, such as the section 319 grants program, the Clean Water State Revolving Fund, and the Environmental Quality Incentives Program (EQIP) must be directed and funded to meet the growing need for assistance.
State Primacy
The efforts of farmers, conservationists, local governments, and state governments must not be undermined or hampered by the development and implementation of this strategy. Individual states have responded strongly to water quality issues and are working cooperatively with their agricultural community on effective programs to improve water quality while maintaining farm businesses. In New York, the New York City Watershed Agricultural Program and the Skaneateles Lake Watershed Agricultural Program and in Iowa the Raccoon River Watershed Program are working examples of cooperative, voluntary, and incentive based programs formed for the purpose of maintaining public drinking water quality. Other states are engaged in similar watershed based efforts source pollution in the Clean Water Act must be recognized.
Conclusion
Agricultural producers have achieved extraordinary conservation gains through voluntary, incentive-based programs to conserve fragile soils and wetlands and to protect water quality and wildlife habitat. We urge the agency to rethink its approach outlined in the draft AFO strategy and to expand the use of its incentive-oriented program to address the larger issue of nutrient management and nonpoint source runoff. The solution to livestock environmental problems is to develop policies which completely utilize all organic residuals as resources. This will not happen under the draft AFO strategy. The draft strategy incorrectly assumes that more of the current regulatory system will solve the problems. We can only improve water quality protection in agriculture when a farmer-oriented plan that is based upon economic reality and properly supported by government incentives is developed and implemented.
Sincerely,
American Farm Bureau Federation American Soybean Association National Grange National Association of Wheat Growers