I am also an active member of the Clean Water Network, an alliance of over 1000 public interest groups representing environmentalists, family farmers, anglers, commercial fishermen, civic associations, rural policy, and consumer advocacy groups working together to implement and strengthen federal clean water policies. The Clean Water Network submitted hundreds of pages of written comments on the Clean Water Action Plan in 1997 and 1998 during the official public comment period and members of its steering committee briefed this committee's staff last week on the Clean Water Action Plan. I am testifying today on behalf of the Clean Water Network as well as the Wyoming Outdoor Council.
Encompassing nearly 98,000 square miles, Wyoming is a vast, sparsely populated state. Approximately 49% of the state's land area, about 30 million acres, is managed by the federal government, primarily the Forest Service and Bureau of Land Management. The Nation's first Park, Yellowstone, first Forest, Shoshone, and first Monument, Devils Tower, lie within Wyoming's borders.
Although known better by its official motto as the "Equality State," Wyoming is the Nation's headwaters state. The Snake, Green, Madison, Yellowstone, Bighorn, and North Platte rivers all originate here, high in the Rocky Mountains. Unfortunately, despite the extraordinary natural values of these headwaters, only one river, the Clarks Fork of the Yellowstone, has been designated a Wild and Scenic River.
My organization supports the Clean Water Action Plan ("Plan") because it focuses significant federal resources on the most pervasive cause of water quality impairment to Wyoming's surface waters: polluted surface runoff. The Plan's emphasis on watersheds, rather than discrete stream segments, makes sense given that polluted surface runoff comes from many different and often diffuse sources spread out over large areas. A key feature of the Plan is a $100 million increase in funding under Section 319 of the Clean Water Act for Fiscal Year 1999 for locally-led restoration efforts in watersheds that do not meet clean water or other natural resource goals.
Unfortunately, not everyone in Wyoming shares our enthusiasm about the Plan. In February of this year, the Wyoming Association of Conservation Districts ("Districts") and several other parties filed a 60-day notice of intent to sue the EPA and the U.S. Department of Agriculture in which the Districts oppose the Plan. Underlying this effort is a fear that identifying watersheds that do not meet clean water or other natural resource goals could ultimately lead to regulatory action to restrict land uses and activities found to be contributing to water quality impairment. This concern is evidently based, in part, on their experiences with Wyoming's TMDL (total maximum daily load) Program. Under the TMDL program, states are supposed to identify and restore impaired watersheds by creating a list of impaired waters and then developing and implementing restoration plans, commonly called TMDLs. The TMDL provisions have been a feature of the Clean Water Act since its enactment in 1972, but implementation of these provisions has only been recent.
In 1996, using information provided by a variety of sources - including many Wyoming Conservation Districts - the Wyoming Department of Environmental Quality ("DEQ") listed over 360 stream segments as water quality limited, and therefore requiring watershed restoration strategies or TMDLs. As far as the Districts were concerned, the larger the list the better, since the availability of Section 319 money was based in part on the presence of impaired water quality. Later, when the Districts learned that TMDLs could be required for impaired segments, they took affirmative steps to remove as many segments from the list as possible. This effort proved successful when, in 1998, the EPA approved Wyoming's 303(d) list containing only 63 water quality limited segments. Over 300 segments were removed from the 303(d) list and placed on a list requiring monitoring sometime in the next five years.
Since late 1996, the Wyoming Association of Conservation Districts has focused its attention and resources on strategies to block the creation and implementation of TMDLs. As mentioned earlier, this strategy involves removing as many segments as possible from the 303(d) list (without taking corrective action) and efforts to reclassify surface waters to a lesser standard to obviate the need for pollution limits. As a result, citizens in Wyoming today are involved in a pitched battle to prevent the further weakening of water quality standards by interests that seem interested in nothing but maintaining the status quo. It is our hope that the availability of federal dollars and other benefits provided by the Plan and successes of neighboring states may eventually entice the DEQ and Conservation Districts back into the business of restoring damaged watersheds.
For the benefit of this Committee, I provide an overview of the situation in Wyoming from my vantage point.
Unified Watershed Assessments. The Unified Watershed Assessment is the centerpiece of the Clean Water Action Plan. We considered it a major milestone in federal policy because for the first time it calls on states to consider data from a variety of sources and to develop one unified set of watershed restoration priorities by coordinating across federal and state programs. The fact it was done hand in hand by water quality and agricultural agencies was a sign of progress.
Wyoming was the only state in the nation to miss the initial deadline for submitting a Unified Watershed Assessment. As you can see from the map on page 5 of the EPA's first year report on the CWAP, Wyoming was also the only state in the nation that failed to identify any watersheds requiring restoration efforts. The absence on the map of such watersheds should not be construed as evidence that we have no water quality problems in Wyoming. Rather, it reflects the Conservation Districts' concerns that identifying damaged watersheds could trigger a regulatory response that includes restrictions on land use or mandatory imposition of best management practices.
It is amazing that Wyoming officials appear to feel threatened by the Federal agencies asking them for their assessment of which watersheds are in need of action. The Unified Watershed Assessment and Watershed Restoration Action Strategy requirements were truly minimal mostly just asking states where and why they wanted to direct new federal dollars that are allocated to address non-point pollution. Apparently, the State of Wyoming feels that Congress should simply hand over the cash, no questions asked.
EPA-USDA Unified National Strategy for Animal Feeding Operations (EPA-USDA AFO Strategy). Another important part of the Clean Water Action Plan is the EPA-USDA AFO Strategy. This strategy is simply a road map for how the federal agencies will work together to implement existing Clean Water Act authority. More than twenty five years ago, the Clean Water Act identified feedlots as point sources of pollution thus required to obtain National Pollution Discharge Elimination System (NPDES) permits. However, these provisions have been largely ignored until recently.
The EPA-USDA AFO Strategy describes steps to be taken over the next five to ten years to implement the vision of the Clean Water Act by permitting large-scale animal feedlots. The Strategy does not in itself create any new rules or regulations. It does, however, describe a timeline for updating regulations on permitting and technology standards. These updates will require EPA to go through the formal rulemaking process, including public comment.
As a strategy, the EPA-USDA AFO Strategy was not required to go through the entire rulemaking process. However, it should be noted that the EPA and USDA provided ample public notice and comment opportunities -- a 120 day comment period and 11 public listening sessions around the country. Clean Water Network members participated in the listening sessions and dozens of members submitted detailed comments on the EPA-USDA Strategy.
Triennial Review a Decade Behind Schedule. Wyoming's triennial review of its surface water standards is nearly a decade behind schedule. Last completed in 1990, this three-year review is required by Section 303(c) of the Clean Water Act ("Act"). As a result of the nearly ten year delay, and due to inadequate oversight by EPA, many of Wyoming's surface water standards do not meet minimum federal requirements. For example, all of Wyoming's Class 4 waters (classified for industrial, agriculture and wildlife watering uses) do not comply with the Act because they are not supported by a Use Attainability Analysis (UAA). EPA's regulations require a UAA for surface water standards that do not support aquatic life or recreational uses.
Lack of An EPA Approved Antidegradation Policy. Although the antidegradation provisions are a critical element of the Clean Water Act, Wyoming's water quality standards still lack -27 years after the passage of the Act- this mandatory provision. As a result, many of its high quality "tier 2" waters have been unlawfully degraded by point and non point source pollution. In some cases, single point source discharges lacking proper effluent controls have consumed substantially all of the water body's assimilative capacity.
Recent Legislative Enactments Block Attainment of Clean Water Goals and Threaten Wyoming's Primacy to Administer Environmental Laws. Earlier this year, the Wyoming State Legislature passed two laws that directly conflict with federal pollution control measures. Known as the "credible data" bill, Senate File 27 requires the use of credible data - defined as "scientifically valid chemical, physical and biological monitoring data collected under an accepted sampling and analysis plan, including quality control, quality assurance procedures and available historical data" - to designate uses and to establish water quality impairment. Because the law requires that designated uses assigned by the DEQ be backed by credible data, it frustrates the water quality "enhancement" goals of the Clean Water Act. Under the Act, designated uses must reflect the potential water quality that could be attained with proper pollution controls and best management practices. The requirement that designated uses be based on water quality as it exists today will not improve water quality. Moreover, because it severely restricts the kind of data DEQ may use in determining impairment, it prevents DEQ from considering such obvious forms of water quality impairment as oil slicks, foul odors, floating scum and fish kills. Among its other egregious flaws, Ron Micheli, the Director of Wyoming's Department of Agriculture, boasted in the Department's Spring 1999, newsletter that "the approval of this legislation [SF 27] will now send DEQ back to the drawing board on [the Triennial Review of water quality standards]."
Second, concern surrounding the controversial Senate File 147- Brownfields legislation has prompted EPA to undertake a review of Wyoming's primacy under the Resource Conservation and Recovery Act (RCRA). Among its many problems, this law substantially expands exemptions to landowner liability, in conflict with strict liability provisions of federal law. In a March 4, 1999 letter to Wyoming Governor Jim Geringer, EPA Region VIII Administrator William Yellowtail noted that "The federal programs' provision of strict liability would be negated by the proposed revision. Owners of property contaminated by a previous owner, or by a contractor, or by any other party, would have no obligation to clean up the property, no obligation to monitor or investigate the contamination, and no obligation to comply with waste, water, and air program monitoring requirements. This proposed provision is unparalleled in federal law and is inconsistent with authorized, approved and delegated state programs."
It is interesting to note that both laws were enacted over strong objections from citizens, conservation organizations and the U.S. Environmental Protection Agency.
Wyoming's Program for Reducing Non-Point Source Pollution Suffers from Lack of Resources and Oversight. A 1997 audit prepared by the EPA's Office of Inspector General revealed that Wyoming's Section 319 Program lacks adequate resources and sufficient oversight and technical support by EPA. Despite citizens' efforts to compel enforcement of the TMDL provisions of the Clean Water Act, Wyoming still refuses to take meaningful efforts to address the leading cause of impairment of Wyoming's rivers and creeks: siltation. Over 300 stream segments identified on the State's 1996 303(d) list as impaired from siltation were removed from the 1998 list and placed on a "monitoring" list. The few TMDLs that have been developed lack daily load allocations and many of the other basic elements of real TMDLs such as a margin of safety.
Loss of Wetlands Continues at Unacceptable Rates. I believe that the Clean Water Action Plan's goal of achieving a net gain of 100,000 acres of wetlands per year by 2005 is a laudable goal. However, unless the Administration and the States start protecting more remaining natural wetlands in addition to their efforts to restore degraded wetlands, it will be expensive and extremely difficult to reach that goal. Wyoming has already destroyed over 38% of its natural wetlands since 1780 according to the US Fish and Wildlife Service. According to Wyoming's 1996 and 1998 Section 305(b) water quality assessments, 413 acres of wetlands were destroyed over a four-year period. Although this loss was partially offset by the addition of 339 acres of constructed wetlands, the loss of values of naturally functioning wetlands is significant. No program exists to monitor the effectiveness of wetlands constructed as mitigation.
These 305(b) reports indicate that most losses occur under various nationwide permits. A recently proposed general permit, Wyoming GP 98-08, would have authorized the destruction of up to two acres of wetlands and unlimited inundation of ephemeral drainages for each natural gas well drilled in Wyoming. With as many as 15,000 new natural gas wells proposed for construction in the next 10-15 years, wetland loss from this general permit would have been unacceptable. To its credit, the Corps of Engineers has responded to public comment and lowered to one acre the permissible loss per well and has proposed other strengthening provisions.
Finally, we are concerned that wetland loss reported to the Corps of Engineers may not accurately reflect actual losses. Many projects proceed without authorization, while others result in destruction to wetlands well beyond the scope of the permit. A recent example is the canal constructed on the Wind River near Riverton, WY. There, the Corps granted a permit to Fremont County (on behalf on the 1838 Rendezvous Committee) to remove 30 cubic yards of material as part of a flood control project. When the project was completed, an estimated 4,000 cubic yards of material had been removed to create what local officials dubbed the "Suez Canal."
Lack of Resources Remains a Problem. Despite the addition of new staff and an expanded budget, the lack of adequate technical and financial resources within the Water Quality Division is still a factor in the inadequate administration and enforcement of the State's clean water program. It is generally acknowledged that additional monitoring requirements imposed by Senate File 27 can not be met with existing budget and staff levels. The problem could be alleviated by a permit fee system, but recent legislative attempts to institute such a system have proved unsuccessful. Wyoming citizens pay to fish, hunt, and park - but polluters pay nothing to cover the administrative costs of permits that give them the privilege of spilling millions of gallons of waste into our surface and ground waters each year.
Access to Information Barred. Public access to water quality related information is frustrated by unreasonable agency policies. In a recent example, staff of the Powder River Basin Resource Council requested from the Wyoming Department of Environmental Quality a copy of a draft NPDES permit for produced water associated with coal bed methane development in the Powder River Basin. They were advised that in order to review the proposed permit, they would have to travel to the DEQ's main office in Cheyenne, a 6 hour drive from Sheridan. Although the information request was made in response to a legal notice announcing the availability of the draft permit, the DEQ refused to provide photocopies of the permit by mail.
State-Tribal Relations Suffer. Chronically poor relations between the Northern Arapaho and Eastern Shoshone Tribes and the State of Wyoming continue to undermine efforts to achieve the goals of the Clean Water Act. For example, when Tribal representatives announced last year their intent to develop water quality standards for surface waters within the Wind River Reservation, Wyoming's then Attorney General William Hill fired off a letter opposing their efforts. Despite the well established authority to the contrary, the Attorney General claimed -without citing any case law- "[a]s a matter of law, the Tribes lack the authority to adopt such standards."
In conclusion, let me just say that the Wyoming Outdoor Council and many of Wyoming's citizens support the goals of the Clean Water Act and efforts to achieve those goals, including the Clean Water Action Plan. While it certainly won't fix all of Wyoming's problems, it has raised public awareness of water quality issues in our state and has made available significant new resources, both technical and monetary, for watershed restoration and protection efforts.
I would also like to enter into the record, testimony from other members of the Clean Water Network on various aspects of the Clean Water Action Plan not addressed in my statement.
Mr. Chairman and members of the Committee, thank you, again, for the opportunity to be here today.
Testimony to the Senate Environment and Public Works Committee Oversight Hearing on the Clean Water Action Plan May 13, 1999 Submitted by Paul Schwartz, Programs Director for Clean Water Action and member of the Clean Water Network
Clean Water Action is pleased that the Administration with the support of Congress is using the Clean Water Action Plan to begin a long overdue process of coordinating and targeting limited funds in a rationalized manner. The mere act of many Agencies and Departments and Divisions sitting down together to coordinate overlapping or disconnected programs and management values may lead in the end to great cost savings and economies of scale. Also, we are pleased that both Congress and the Administration are putting more dollars into some of the most successful and best used programs to achieve improvements in clean water such as CREP and EQUIP.
A number of issues, however, disturb us about the direction of the plan:
Many necessary programs are severely underfunded. We commend that Unified Watershed Assessments were "done" by all 50 states, five territories, DC and 18 tribes, but note that the overall quality of these important plans is less than meets the eye. More funding for actual on the ground monitoring and surveys, which includes real public participation is needed. Also, application of GIS and the best data sets available to the Assessments needs to be done more uniformly and this will take more funding going out to the states. Though the UAW targets and priorities restoration dollars, more dollars need to be made available for restoration and antidegradation activities. Polluted runoff has been identified as a huge clean water priority, accounting for about 60% of the problems in assessed waters, yet the $200 million in grants provided by EPA is but the proverbial drop in the bucket compared to the money infrastructure commands. Also, allowable funding of non-point and pollution prevention problems by the states under their SRF programs are horribly underutilized. The coastal runoff control program, one of the few enforceable programs in our pollution fighting kit bags is also underfunded. Finally, the CSO and SSO problems faced by our communities around the country are not well address either in the current plan or in the Administration's future request . Given the overall clean and safe water funding "gap" using limited SRF funds as grants may be problematic EPA has publicly recognized that a huge funding gap exists for dealing with existing clean and safe water needs. Some estimates put the combined funding gap at well in excess of $200 billion over the next twenty years. The two state SRF accounts will obligate some $200 billion over the next twenty years so there needs to be a doubling of the rate of spending just to keep up with current needs let alone plan for new regulations to address problems that are looming on the horizon. Without expanded funding, however, we oppose converting a full 20% of the state SRF into grants, believing that will represent a fundamental weakening of the integrity of the SRF accounts that are doing so much good. Instead, we support full funding of the SRF accounts (especially a restoration of the $500 million cut to the Clean Water SRF proposed by the Administration), more federal share and a polluters pay funding option.
Mechanisms to assure effective public participation in setting funding priorities are lacking. Taxpayers and ratepayers are not effectively at the table when funding priorities are being made either at the federal or state level. Public interest and citizen groups are poorly represented if at all in stakeholder meeting and public processes dealing with funding. Two good examples of this are the effective "barring" of citizens from the states' CWSRF & DWSRF Intended Use Plan (IUP) process. Big water utilities, favored elected officials and municipalities, and engineering consultants dominate the process and politics; drinking water consumers, recreational water users, and those who make their living off the water get left out. With all the federal funds flowing into the SERF and PWSS accounts, states should be required to set-aside a small amount of money to find and get to the table ordinary people and their representative organizations. This should be true for the upcoming "Watershed Forums" as well.
Performance criteria lack teeth often giving way to bean-counting substitutes - leaving us with the impression that some of the dollars are unmandated funds that will go down the proverbial rathole and are not accountable. Much of the work done under the banner of the 319 program has not resulted in real improvements in water quality. Lack of an enforceable backstop is at the center of the problem. We do not support programs that just throw money at the problem but expect results for our tax dollars. Good baseline monitoring data along with a strong TMDL program will crate the type of assessment and water quality goal setting that may result in real improvements in getting to fishable, swimable and drinkable waters. Testimony to the Senate Environment and Public Works Committee Oversight Hearing on the Clean Water Action Plan May 13, 1999 Submitted by Jacqueline Savitz, Executive Director, The Coast Alliance and member of the Clean Water Network
I would like to submit this testimony on the Clean Water Action Plan to the committee on behalf of the Coast Alliance and the Clean Water Network.
Coastal Runoff With regard to Coastal Protection Issues, the Clean Water Action Plan hones right in on the primary remaining source of water pollution, polluted runoff, and reaffirms the Administration's commitment to addressing runoff through existing programs. In our recent report, Pointless Pollution, Coast Alliance discusses the plethora of problems being caused on every coast, (and even in some non-coastal states) by this diffuse but ubiquitous pollution problem.
Whether the source is agricultural runoff, sloppy forestry practices or uncontrolled urban runoff, control over the continued onslaught from polluted runoff is long overdue. Besides contributing to the closure of nearly three million acres of the nation's shellfish beds, polluted runoff is also credited with degrading at least a third of surveyed rivers and streams, and causing a "Dead Zone" covering more than 6,000 square miles in the Gulf of Mexico. Polluted runoff also promoted the toxic Pfiesteria outbreaks on the Mid-Atlantic Coast, made swimmers sick on beaches in California, and clogged important shipping channels in the Great Lakes and elsewhere.
The most common source of pollution, runoff comes from thousands of diffuse sources, such as farms, logging areas, new and existing developments, natural waters, marinas, septic systems, dams and other sources. Together they create a serious and ubiquitous water pollution problem.
The efforts described in the CWAP are not unpopular, they include research, monitoring, education, partnering, and technical assistance. In addition the Plan touts efforts to help states in a number of ways that will address runoff. There is discussion of using existing enforcement authorities to help states reduce pollutant discharges that are contributing to harmful algae blooms. Support to states to implement the Coastal Non-Point Pollution Control Program (of the CZARA) is part of the program, and in the CWAP the administration reiterates its commitment to this very important problem. Further, the Plan commits to bring closure to the state planning process so that states investments in planning can be brought to fruition.
These efforts to support and move forward with the Coastal Non-Point Pollution Control Program are the least we must do if we are to address beach contamination, Dead Zones, Harmful Algae Blooms, sedimentation in ports and harbors, and other results of polluted runoff gone awry. In truth, much stronger programs may be needed. However, the Coastal Non-Point Program must be given a chance to work.
We need your help to secure funding for the states to make solutions to these problems a reality. Historically, the Coastal Non-Point Program has not been adequately funded. The states, that are required to develop and implement these programs, need more financial support from Congress. Last year Congress appropriated $8 million for the program, one million of which is now in jeopardy of being rescinded. This year, Congress has the opportunity to fold the Coastal Non-Point Program into the Coastal Zone Management Act Reauthorization, which would give it a home, and make it a stronger candidate for limited federal funding. Language to do this is currently included in a House Bill, and will hopefully be included in a Senate Bill to reauthorize the Coastal Zone Act as well. We look forward to working with all of you on this issue.
Contaminated Sediments Also in the spirit of cooperation, the Clean Water Action Plan contains an action item on contaminated sediments. Contaminated underwater muds exist in nearly every major watershed in the country. They are major contributors to contaminated fish, which are also all too common, and they create havoc when harbors require maintenance dredging or deepening. Here the CWAP commits to funding five demonstration projects to move forward on the state of the art for decontaminating these materials. This is an important step. Additional funding to clean up these underwater toxic sites as was sought by Senator Levin in the past, is critical to insuring Americans have access to clean safe seafood and fish.
We need your help to ensure funding is available for cleanups. We also need your help to minimize the amount of sediments that are dredged for harbor maintenance and deepening. One way to minimize this is to minimize federal subsidies for dredging. The House WRDA bill calls for increased subsidies for deep dredging, the Senate version does not. We need your help to ensure that the conference reverts to the Senate language on this issue.
Thank you for considering my testimony.
Testimony to the Senate Environment and Public Works Committee Oversight Hearing on the Clean Water Action Plan May 13, 1999 Submitted by Mary Wells, Policy Analyst, Earthjustice Legal Defense Fund and member of the Clean Water Network
The Clean Water Network applauds the Clean Water Action Plan's commendable goal of a 100,000 acre net gain in wetlands by the year 2005. Natural wetlands are important filters of surface and ground water, they help retain flood waters and provide habitat for birds and wildlife. Unfortunately, the Administration has not demonstrated yet a serious commitment to achieving their previous wetlands goal of "no net loss," let alone the new net gain goal. The most recent Draft Report to Congress on Status and Trends of Wetlands by the U.S. Fish and Wildlife Service found that from 1985 to 1995 an average of 117,000 acres of wetlands were lost each year. Despite this alarming figure, the Administration continues to promote certain policies and projects that destroy more wetlands than they protect.
Regarding policy, the Administration needs to replace the much abused Nationwide Permit 26 with permits that truly cause only minimal impacts and close any remaining loopholes in the program. In addition, the Administration also should end the current widespread destruction of wetlands due to the "Tulloch rule" court decision and act quickly to clarify the definition of "discharge of dredged material" under the "Tulloch rule." Finally, the Administration should more carefully scrutinize federal projects which result in wetland destruction. For example, three current projects in Mississippi -- the Yazoo basin pumps, the Big Sunflower dredging, and the St. John's Bayou project -- together could destroy up to 200,000 acres of wetlands. These expensive federal projects deserve an interagency review to limit the amount of wetland destruction at the expense of federal taxpayers. The Administration's current policies and practices regarding wetlands must be changed for the Clean Water Action Plan's goal of a 100,000 acre gain in wetlands ever to be realized. In addition, Congress must fully fund the restoration programs outlined in the Clean Water Action Plan if we are to reach the laudable goal of achieving a net gain of wetlands in the future.
These comments are submitted on behalf of the Natural Resources Defense Council Inc., (NRDC), a national environmental organization with more than 400,000 members residing in all fifty states. NRDC's institutional purposes include the protection of water quality and NRDC has long been active in efforts to reduce polluted runoff, control point source discharges and promote sustainable agriculture.
The Need for A Comprehensive Clean Water Act Approach for Factory Farms The Clean Water Act (CWA), enacted in 1972, works to help solve water pollution problems that are national in scope. Pollution from large scale animal confinement operations is a national problem, affecting more than half of the states in the United States. Pollutants gushing into waterways or wafting airborne do not stop at state boundaries. Moreover, the current state specific approach has led to patchwork of state livestock programs, some regulatory, some not; and pollution shopping by industry to seek out the states with the weakest controls.
As a key component of the President's Clean Water Action Plan, this spring the U.S. Environmental Protection Agency (EPA) and the U.S. Department of Agriculture (USDA) gave long-overdue recognition to the problems of factory farm pollution in their "Unified National Strategy for Animal Feeding Operations" (referred to here as the EPA-USDA Strategy). In addition to embracing enhanced voluntary approaches for the vast majority of livestock operations, the plan calls for the implementation of a national Clean Water Act program.
The Strategy Implements Existing Clean Water Act Authority More than twenty years ago, the Clean Water Act identified feedlots as point sources of pollution (and thus required to obtain National Pollution Discharge Elimination System (NPDES) permits), but very little has happened since then. Focusing its attention on more traditional point sources of pollution, EPA all but ignored factory farm pollution for decades. In 1992, the General Accounting Office estimated that 6,600 livestock facilities were large enough to qualify for Clean Water Act permits, but less than 2,000 of those facilities had obtained permits. Today, EPA estimates that there are at least 10,000 large scale animal feeding facilities, and several thousand have not obtained NPDES permits.
A national permitting system for large scale feedlots is not only required by the Clean Water Act; it is also needed to create greater consistency and protection across the nation than is offered by the current patchwork of state programs. As is currently the case under the Clean Water Act, states would be free to adopt more environmentally protective standards but could not sink below the "floor" of federal technology and permitting standards. While some states now issue permits to feedlots under a variety of state laws, only Clean Water Act permits provide the consistent environmental protection and procedural rights needed to control pollution from confined animal feeding operations (CAFOs): (1) Clean Water Act permits are designed to insure that water quality standards are attained. State permits are not necessarily based on this goal. (2) Under the Clean Water Act, if a nearby water body becomes polluted by feedlots and other industrial sources, EPA establishes pollution reduction goals for each polluter. (3) Under the Clean Water Act, citizens have the right to bring lawsuits against polluters to enforce the Clean Water Act.
EPA has Clean Water Act Authority to Regulate the Land Application of Manure One of the best features of the EPA-USDA Strategy would require CAFOs to protect soil and water from pollution through the land application of too much manure. Recognition has been growing that spreading vast quantities of manure on land can be as much of a pollution threat as a leaking manure lagoon. EPA clearly has authority under the Clean Water Act to regulate land application within a NPDES permit. For example, Concerned Area Residents for the Environment v. Southview Farm, 34 F.3d 114 (2d 1994), cert. denied, 115 S.Ct. 1973 (1995) held that manure spreaders are point sources. The Clean Water Act, 33 U.S.C. 1362(14) holds that a point source includes drainage tiles and ditches from which a pollutant flows.
While the EPA-USDA Strategy clearly asserts that Clean Water Act permits for CAFOs must include proper land application of manure, the Strategy is unclear about what the specific requirements will be. Additionally, it appears that CAFOs will have years to develop Comprehensive Nutrient Management Plans (CNMPs) and several years thereafter to implement them, so the benefits of these plans will not occur for years to come. Finally, although the CNMPs are recommended as core features of Clean Water Act permits, for facilities issued general permits, the public is given no say on their terms. It appears that the plans will only be available to the public after they have been approved by USDA and EPA.
EPA Should Not Issue Clean Water Act Permits to Any New and Expanding Large Scale Confinement Operations Until Standards Are Upgraded The current Clean Water Act standards under which factory farms operate are woefully inadequate. For example, the technology standards allow factory farms to build football-field sized, open-air manure cesspools. These manure lagoons have burst, leaked and overflowed polluting waterways across the country.
Under its new strategy, EPA is proposing to issue hundreds of permits to new and expanding large scale animal confinement operations. But these permits would be issued under the same antiquated technology rules that have allowed many CAFOs to pollute.
EPA should impose a moratorium on permits for new and expanding animal factories that currently qualify as CAFOs. This moratorium should stand until EPA upgrades its standards regarding animal waste technology, and until EPA tightens its rules to insure comprehensively that all large scale animal confinement operations of all animal types are required to obtain a permits. This time-out would also allow states to assess the water quality effects of existing CAFOs before new operations are built or existing operations are expanded. The wisdom of a temporary time-out has been recognized by states all over the country at one time or another, including North Carolina, Kentucky, Mississippi, Missouri, Georgia and Oklahoma. Unfortunately, the EPA-USDA Strategy does not include a moratorium. Local citizens should be allowed to participate fully in the decision as to whether a factory farm is allowed to locate in their community. And citizens should have the opportunity to help decide what pollution controls are needed on factory farms to protect their communities. Only individual site-specific permits can accomplish this followed by strict water quality monitoring by livestock operators and tough enforcement against Clean Water Act violators.
Despite the risk that CAFOs pose to water supplies and to public health, citizens in most states do not have the right to be notified before such a facility moves into their community. Once citizens are faced with the prospect of a huge animal factory that will generate more waste than several of their small towns put together, there is rarely anything they can do to stop the facility from operating. And once an animal factory has been established, there is little citizens can do to ensure stricter pollution controls. The lack of citizen participation in basic decisions about how to protect their communities from huge potential polluters is a basic feature of the general permit, which is the type of permit most commonly employed by states.
Rather than allow general permits for factory farms, the EPA should require that all factory farms be subject to more stringent individual permits. Individual permits require public notice before a factory farm can be permitted, set site-specific permit terms and may require an on-site evaluation prior to permit issuance. Site-specific permit terms might, for example, require the siting of a manure storage facility in the least ecologically vulnerable location on a property, despite the owner's plans to put it elsewhere. An individual permitting system might have prevented the location of a controversial factory farm within close proximity to a wildlife refuge in Mississippi.
Unfortunately, the EPA-USDA Draft Strategy relies upon the use of general permits for many CAFOs, especially for existing operations. The strategy identifies a list of certain types of factory farms that should receive individual permits, such as new and significantly expanding operations and operations known to pollute or likely to pollute. This is a good starting point but not enough. All factory farms should receive individual permits. If a break or leak from a manure storage facility occurs or manure is over applied on the land, drinking water wells can become contaminated, fish can be killed and public health can be threatened. The potential consequences are simply too grave to authorize fast track permits for CAFOs of more than 1,000 animal units.
EPA has recognized the limitations of general permits in addressing specific pollutant concerns in its call in the Strategy for watershed-based permits, but especially in a watershed-based context, individual permits make sense because they impose site-specific conditions. Finally, Clean Water Act permits for factory farms must be backed up with meaningful compliance. Most industries that are issued Clean Water Act permits must monitor receiving waters and periodically report the results to EPA. However, factory farms, which are not currently required to follow these water-testing requirements, should be required to follow them. A strict regimen of enforcement is needed, such as periodic and unannounced inspections and penalties for violations that will ensure compliance.
EPA should ban the use of open-air manure cesspools for factory farms and their spraying of manure and urine into the air. Environmentally friendly farming systems should be encouraged. Factory farms generate so much manure and urine in one place that, unlike livestock operations on a smaller scale, their manure storage and land application practices are often more a matter of waste disposal than of fertilizing crops. These systems have resulted in enormous pollution problems. Recently, NRDC and the Clean Water Network published a report entitled, America's Animal Factories: How States Fail to Prevent Pollution from Livestock Waste. This report documented pollution problems across America attributed to the lagoon and sprayfield system including:
A North Carolina study of nearly 1,600 wells adjacent to hog and poultry operations showed that 10 percent of the wells tested were contaminated with nitrates above the drinking water standard, and 34 percent were contaminated with some level of nitrates.
In Indiana, animal feedlots were responsible for 2,391 spills of manure in 1997.
Sixty three percent of Missouri's CAFOs (over 1,000 animal units) handling wet manure that were inspected between 1990 to 1994 by the state's Department of Natural Resources had illegally discharged animal waste.
During the past four years in Iowa, there were 51 manure spills into the state's streams, rivers and lakes that were serious enough for financial penalties, resulting in more than 1.1 million fish being killed. Overflowing manure storage lagoons were the source of the biggest spills, while application of liquid manure onto fields caused the most frequent spills.
Open air lagoons and aerial spraying by factory farms should be banned. They should be replaced with technologies that do not rely upon open air storage of vast quantities of liquid manure, or that store manure in a drier form. Additionally, environmentally friendly and more humane farming systems should be encouraged, including composting and pasture systems. These systems, as well as an innovative system in which hogs are raised on straw, have been proven to work in Europe and in the United States. North Carolina passed legislation that required the State Department of Agriculture to develop a plan to phase out lagoons and sprayfields, but the Department's plan has failed to comply with this mandate. The EPA-USDA Strategy barely mentions more sustainable approaches. The strategy appears to support the continued use of liquid manure systems in the short-term, and while alternative approaches will be studied during the process of considering new effluent guidelines, the Strategy does not commit to banning lagoons and sprayfields in the long-term.
EPA should ensure that the nation's waters are protected from poultry manure. Chicken factories should be regulated under the Clean Water Act in the same fashion as other animal operations According to the U.S. General Accounting Office, close to 2,000 poultry operations were of sufficient size to warrant a permit in 1992, but only 39 operations had them. The historic rationale that has been used by EPA for exempting these operations was that poultry litter is dry. Yet even dry manure, when applied in excess quantities to the land, can create polluted runoff. Poultry factory farms should be issued Clean Water Act permits, whether the manure generated is dry or wet. In the initial round of permits under the EPA-USDA Strategy, it is not clear whether all dry litter factory farms will be regulated in the same fashion as other animal operations.
There is a need to ensure that corporations that own livestock animals share responsibility for paying the costs of waste disposal and cleanup. Large corporations often contract with smaller producers to raise their chickens and swine but do not take responsibility for disposing of the animals' waste. In many cases, farmers raising animals under contract are forced to become polluters because the major food corporations that own the animals will not provide enough acreage to apply wastes properly. As a result, small contract growers are often forced to over-apply manure to the fields that they have available. To its credit, the EPA-USDA Strategy requires that the corporations that exercise substantial control in the operations are co-permittees along with the producers who raise the animals.
Additional Funding is Needed, But it Should Not Subsidize Factory Farms To its credit, the Clean Water Action plan recommends additional Clean Water Act funding. However, we strongly oppose the use of Section 319 funds, state revolving loan funds or Environmental Quality Incentive Program funds to assist CAFOs with meeting the costs of environmental compliance. By failing to address the true environmental costs of their operations, CAFOs have been subsidized for decades. These operations are well financed and have the resources to pay for environmental improvements. Scarce public dollars should be directed instead, to small and moderate sized animal feeding operations, and to research and facilitate the transfer of sustainable livestock practices.