I would also like to thank Senators Smith and Crapo for introducing Senate Bill 2417. This bill shows some common sense. EPA is trying to treat the nonpoint pollution problem the same way they have dealt with the point source pollution problem. It is my understanding that congress saw a difference in the way the two should be dealt with when the Clean Water Act was written. If the EPA is allowed to proceed with TMDL and AFO-CAFO as proposed, American Agriculture will be greatly reduced. The bill points out that there is a lack of funding to deal with nonpoint problems, both at the state level and the landowner level. EPA is unwilling to look at the progress Agriculture has made through true voluntary programs. EPA's idea of voluntary program is you will voluntarily conform or we will fine you into voluntary compliance. Natural Resources Conservation Services have a long tradition of true voluntary conservation programs. As with any government program though, there have been many programs that time has proven to be just plain wrong. For example, SCS encouraged farmers to plant Multiflora Rose as a living fence. The farmers who did have left their children with a noxious weed that will completely engulf an open field. Then, of course, SCS used to give away Super Phosphate to increase the phosphorus in the manure farmers spread on their fields. Now we are told that it is the farmers' fault that there is too much phosphorus built up in our fields. Most of us can still remember all the wetlands that were drained with SCS technical expertise.
I bring these examples up not to pick on NRCS but to illustrate that Government does not always know what is best. I do not believe that EPA will cure Agriculture's problems through TMDL and AFO-CAFO. Just look at the EPA regulations on town dumps - burn it, bury it, haul it and seal it?
There is a major difference between Agriculture and Industry. Ag pollution is not profitable to the farmer. Any farmer that is a livestock/crop farmer needs his or her nutrients in the field to grow the crop. Manure may be a by-product of livestock, but it is also an input for crop farming whereas in industry pollution is a cost to get rid of as cheaply as possible. If you come to my farm, test the water, and find nutrients that have come from my farm then I'm losing money. That is also true with pesticides. At $40 per gallon, I want the spray to be in the field working. This is why nonpoint Ag pollution control can and should be handled differently than industrial pollution.
In order to make good policy decisions concerning the relationship with Forestry, Agriculture, and the environment you must also look at the traditional cost share programs of NRCS. Funding is the major problem with trying to improve water quality today. This administration has replaced funding of government programs that actually clean up the environment and reduce possible contamination with programs that educate the general public and create more government bureaucracies. The current EQIP funding for New Hampshire is less than half of what the old ACP program was. However, the Connecticut River is listed as a Historic river and Silvio Conte is building learning centers. Not only has funding levels gone down but bureaucracy has gone up. It is a two-year process for money to be made available to the farmer through EQIP. Money is made available by priority water shed, within which watershed projects are rated, for environmental impact. It is possible for a better quality project not to be funded because it is outside of a priority watershed. Most farms in NH are not eligible for funding because they are outside of the priority watershed. Or the money available for their watershed is not sufficient to do the project. There are only two watersheds in NH currently receiving enough money to build a manure storage system for a family sized dairy farm. A farmer can only apply once every five years for cost share money. That means that he must apply for funding of all the projects he needs to complete with in the next five years at the time he applies. In order to comply with both AFO-CAFO and TMDL requirements some farms would need almost the entire EQIP funding for the state of New Hampshire. However, another rule would cap the cost share at $50,000 per farmer per contract. Remember you do not actually have to be polluting to be held liable in citizen litigation, all they need to prove is that you are not in compliance.
We have seen a growth in EPA/DES funding of farm projects. However, to qualify for funding, the watershed must be identified as a problem area and the individual farm must be identified as a problem. DES has assured farmers that they will not penalize farmers for participating in these programs, however I question whether the farmer is creating a public record of environmental misdeeds that could be later used against him in a citizen litigation. This has been done in Washington State in at least one of the citizen litigation suits out there.
Many people question why the government should help farmers in saving soil and reduce nutrient run off. I would like to share with you a brochure from NRCS. This top photo is a picture of my farm. It depicts a major steambank blow out. That occurred two years ago during a 100-year flood The two NRCS field people told me that I'd never be able to get the permits to fix the problem, and if I could there would be no cost share money, and it would probably exceed $100,000. I am no engineer but I think that my bank eroded because of a sand bar that has developed across the river. In the old days a farmer would go down into the river and remove the sand bar that has developed with his loader. Regulation no longer allows for that so I lost 2 acres of field 20 feet deep. I think that sediment is more than the sediment created by cleaning out the sand bar. Government regulation has taken a $1000 job and turned it into $100,000. Furthermore, the flood damage that we experience up here is increased by flood control that protects cities down south.
I'd like to take a few minuets and talk about my experience on the SBREFA panel that reviewed the current proposed changes to the AFO CAFO regulations. Most of the farmers are aware that the EPA currently classifies all farms over 1000 animal units as a CAFO. EPA is currently in the process of reducing the minimum size of a CAFO to 300 animal units. They also would like to change the definition to include replacement heifers on a dairy farm. If this Change occurs in the regulation then all dairies above 150 cows will be classified as CAFOs. What this does is subject the family farmer to citizen litigation. Congress allowed citizen litigation with point pollution sources. I am guessing that it was because Congress felt that a private citizen needed more power to defend him or herself from corporate America. But to now allow "citizens", maybe more aptly put as multimillion or billion dollar environmental organizations with well paid attorneys, to sue family farmers seems a bit unfair. Most Farmers will choose to either sell out or settle out of court. Farmers do not have the money to fight these cases. The legal fees alone can run into the hundreds of thousands of dollars. EPA is also looking at mandatory 100 foot set backs from water for spreading manure, yet they allow me to spread sludge to within 10 meters of the river. I think this difference between these two set backs have more to do with cows not voting than good quality science.
The SBREFA panel is charged with giving small business input into the regulation process prior to the final stages. I would charge that EPA might have lived up to the law by hosting the panel, however I do not believe that they have abided by the intent of the law. The entire process was held via telephone conference. They held a pre session with over 70 people on line. This session was held during and after a hurricane. Some farmers in North Carolina were out putting their farms back together. I was called out by the railroad to help clear tracks. I know that the Government is important, however if they really want small farmers' input then they have to be willing to reschedule a telephone conference due to a hurricane. At this point they asked for written input. Then they selected the panel. I received an incomplete package of information New Years Eve. The next telephone conference was scheduled for January 5. Please remember that New Year's day fell on Saturday and the EPA was closed Monday so this gave us one business day to review the incomplete package. If I remember right, we had two hours and forty minuets to discuss AFO CAFO for dairy and beef farmers. They had just four dairy farmers to represent the dairy industry. They also gave us an additional hour later. I have met several panel members since and we all agree that we did not get enough time to discuss issues and that the EPA instructions to us were confusing.
I'd like to share some of my comments with this committee
In conclusion, I feel that the EPA is over responding with their TMDL and AFO-CAFO regulation. Non-point pollution can and should be handled better at the state level. Currently there are economic forces at work driving the dairy industry in two directions 1) smaller part time farmers and 2) larger and larger farms. I feel that the cost to comply per cow will be greatest on the midsize family farms if these changes come about. Farmers such as myself will either get bigger, get smaller, or go out of business. In the Northeast that means more farmland will be made available for development. Privately, most DES and EPA officials I have spoken to feel that farms are less of a problem than sprawl for the environment. Congress must also look at the NRCS EQIP program. The application procedure needs to be simplified and the funding level needs to be restored. EPA cost share money needs to be given to NRCS to distribute to farmers and landowners. NRCS had a perfect vehicle to get this money out to the right landowners. We need to empower state technical committees to develop funding procedures that make sense to the individual states. More research needs to be done to make sure that the proposed regulations will actually have the desired effect. I would encourage this committee to call a halt to the EPA trying to expand the Federal Government's roll in non-point pollution.
Sincerely,
Scott R. Mason
May 12, 2000
SBREFA Panel AFO CAFO
Dear Sirs,
After participating in this panel discussion, I have come to the conclusion that EPA has done everything they can do to minimize any kind of comprehensive review of their proposed regulatory changes by this small business entity group. They have minimized available discussion time by conducting all meetings over a telephone conference call system. They have used most of the telephone time to lay out their position. There has been less than three hours of testimony time.
EPA is currently phasing in regulations to help control run off from large farms. These regulations become active this year. EPA never explained why they feel that their current regulations are not sufficient. They also glossed over the fact that the majority of farms are already under some type of state AFO CAFO nutrient management regulation. Many of these state plans meet or exceed EPA proposed standards. Most of these state regulations are too new to evaluate their effectiveness. Congress specifically left nonpoint pollution up to the states in the clean water act. Nutrient run off from farms is very different from industrial pollution. To maximize profits industries must get rid of their waste as cheaply as possible. Manure has great value to a farmer. Any run off will have to be replaced with commercial fertilizer. Therefore, voluntary conservation works. EPA should work with USDA NRCS and make money available for voluntary conservation. They could greatly improve the efficiency of their money if they would work with the NRCS State Technical committee in each state. Better decisions could be made with coordination of state and federal monies. This will help to target resources into watersheds that need it most. It will also allow for the agricultural industry, state and federal agencies, and voluntary conservationist to work together.
I spoke with my state NRCS office and asked Gerald Lang Technology Leader for a historical prospective of cost for building manure storage systems. He broke the cost down as follows:
Earthen storage pit with liner (clay or polymer) -- $1.75 per AU per day of storage
Cast in place concrete (circular) -- $ 2.65 per AU per day of storage
Cast in place (rectangular) -- $3.50 per AU per day
Pre-fab concrete (Rectangular) approx. -- $3.00 per AU per day
In most of New Hampshire, you should be building storage for 280 days. So if you were to require a 300 animal unit to have storage then these farmers would have to spend from $147,000 to $294,000. These complete systems include all the "stuff" that I think EPA may have left out of their building cost estimates. EPA never shared the actual specs for the building estimates they did. A concrete lined hole does you little good if you have no way to get manure into it, keep animals out of it, deal with sand or other solids, control surface water drainage etc.
Also EPA thinks most 300 plus animal unit farms have adequate storage. Some states have developed cost share programs for their farmers to build pits. If EPA only surveyed those states then their numbers may be off. I think that almost 2/3 of the farms in my county from 300au to 1000au will have to build or expand storage facilities. This number will probably increase under the current economic conditions that farmers are facing unless the President makes EQIP funding a priority. The smaller the farm the more likely they are to be short of storage. New Hampshire allows for field stacking, which if properly done can be environmentally sound, and helps the farmer to reduce the costs associated with manure spreading. Spring is my busy time of year. The opportunity cost of tractor time and labor time is very high. If I can haul and stack manure during the winter in or nearer my fields then I can afford to spread that manure over more land, thus helping to reduce run off. There are some very simple effective ways to reduce the risk of run off from field stacking. EPA needs to be very careful about over regulating field stacking because that will lead to poorer management of manure. Your regulations could change manure from an asset to a liability. EPA does not have field staff enough to enforce their will on every 300 animal unit farm in America. You will increase the environmental benefit of your regulations if they work with the economic forces involved with agriculture instead of against them.
Under President Clinton actual funding for cost share programs to help farmers build manure management structures has been cut by almost 2/3. Furthermore, the local county technical assistance by NRCS has been reduced because of Vice President Gore's USDA restructuring program. Not only has local staff been reduced, but also their job requirements have been increased. In my county alone almost 300 man-hours were spent on unfunded EQIP proposals. The USDA requires exact estimates of the project cost before funding levels are determined. The other side of this is the farmer has now wasted his time and become less likely to reapply in future years. It is now almost a two-year project for a county NRCS staff to get money onto the farm. If the government wants to reduce farm run off then they need to reduce red tape associated with their programs.
During the discussion and reading the material, several things have been brought to light that I would like to address. I do not understand why EPA would want to lift the twenty five-year rain event exclusion. If this is lifted then every farm will have to have a permit. No one can say that he or she will never discharge during a greater then 25-year storm event. How do I predict a 500-year rain event? This change would add tremendous cost to construction and to compliance. EPA has also suggested a 100-foot buffer for spreading manure next to water bodies. They show no cost to the small farmer for this. Somewhere between 30-50% of my tillage is within 100 feet of water bodies. This alone would bankrupt me. Furthermore, all the farms in my county would have the same problem, as would most of the farmers in the state. I asked why EPA has set a 10-meter buffer for sludge spreading and want a 100-foot buffer for manure. I did not get a real answer, nor has anyone gotten back to me with the science behind this statement. I think it has more to do with the political power associated with each organic by product than science. The truth is that actual on site conditions have more to do with width of the buffer zone, and it is impossible for a Washington DC based regulation to take into account what is a sufficient buffer. It takes an on site evaluation.
Nutrient management plans need to be written by the farm owner. I spoke with a certified crop consultant that is very familiar with my farm. He said that the actual cost of producing a plan for my farm would be about $5000. It would also cost me $1000 plus to maintain this plan. My farm would be over 300 AU if you count dairy cows at 1.4AU and heifers also. This is a very large expense when farm net incomes are dropping below the poverty line in many cases. If you allow the farmer to become certified to write his plan then he can save some of this money.
I would like to thank EPA and SBA for this chance to input on some of the problems I see with the proposed regulations. I would be more then willing to answer any questions you might have. I do feel however that to get better information from a SBREFA Small Entity Committee we should be allowed more than three hours of time for us to ask questions of EPA and for them to answer these questions.
Sincerely,
Scott R. Mason