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May 8, 1998

The Honorable Carol Browner
Administrator
U.S. Environmental Protection Agency
401 M Street, NW
Washington, D.C. 20460

RE: COMMENTS ON THE DRAFT STRATEGY FOR ADDRESSING ENVIRONMENTAL AND PUBLIC HEALTH IMPACTS FROM CONCENTRATED ANIMAL FEEDING OPERATIONS

Dear Administrator Browner:

The National Conference of State Legislatures (NCSL) respectfully submits comments on the U.S. Environmental Protection Agency’s draft strategy to address the environmental and public health problems associated with concentrated animal feeding operations (CAFOs).

Currently, many states are responsible for water quality permitting programs as authorized by state water quality laws and the federal Clean Water Act. In recent years, changes in the animal production industry, including increases in the number and size of CAFOs, have led in some cases to environmental and health problems. State legislatures are sensitive to these concerns, and as a result many state legislatures have enacted or are considering laws to address these problems. NCSL believes states should be given the opportunity to address CAFO discharges in the context of NPDES authorization.

NCSL supports minimum federal water quality standards. Within the framework of these standards, states should have maximum flexibility while assuring water quality protection. State familiarity with local circumstances allows programs that are the most appropriate and effective. States should be encouraged through incentives, including financial support and technical assistance, to make any necessary changes to existing state CAFO programs. Any new or amended federal water quality policy that imposes new responsibility on states should be accompanied by adequate federal funding and under no condition should preempt existing state programs, except as required to achieve minimum national standards.

NCSL urges EPA to continue to work with the states to define environmental and health problems associated with CAFOs and to identify responsible effluent control options. In this connection, EPA should draw on the states' wealth of knowledge and experience when developing a final strategy.

The enclosed comments focus on the overall principles of the draft strategy: increasing compliance, setting national priorities, modifying the existing permit program, revising regulations, and improving intergovernmental coordination. In addition to the specific comments on the draft strategy, NCSL offers a number of overall principles based on current NCSL policy on Environmental Federalism, Natural Resources Conservation, State Federal Regulations for Environmental Programs, and Water Quality.

State legislators and NCSL are prepared to work with you and your staff during finalization and implementation of the strategy regarding CAFOs. For additional information, please contact Melinda Cross at (202) 624-8195 or Dave Naftzger at (202) 624-8662.

Thank you for your attention to this important matter.

Sincerely,

The National Conference of State Legislatures

1. Expand Compliance and Enforcement Efforts.

NCSL supports EPA's efforts to work with states to expand the use of compliance assistance and enforcement to ensure that federal water quality goals are met. Under the Clean Water Act, animal feeding operations that have more than 1,000 animal units qualify, on size, as CAFOs and are required to adhere to Section 402 permitting requirements. According to EPA, 6,600 animal feeding operations qualify as CAFOs under this definition. However, EPA estimates that only one-third of these have the mandatory permits. NCSL urges EPA to provide states with funding, technical assistance and flexibility to devise the most appropriate plan to increase compliance with Clean Water Act permitting requirements.

2. Focus on Priority Watersheds.

NCSL supports EPA efforts to work with the states to collect data and survey water resources, including watersheds, throughout the country. This information will be critical in determining national priorities regarding watershed protection.

NCSL urges EPA to work closely with the states when providing funding and technical assistance for water quality programs. Many states face problems associated with CAFOs and are endeavoring to protect the water resources within their borders. Each state has unique priorities regarding these resources. Any federal CAFO strategy should be sensitive to these idiosyncrasies and should provide flexibility to address state-specific priorities. While state-specific priorities may differ from national ones, it is essential that all states pursuing protection of water resources be provided with funding and technical assistance.

3. Improve Clean Water Act Permits.

NCSL supports EPA's efforts to improve the permitting process under the Clean Water Act. However, EPA must remain sensitive to existing state permit programs. EPA should work closely with the states when finalizing any changes to federal regulations governing Clean Water Act permits.

In addition, EPA should be sensitive to the varying environmental, economic, legal and social factors that exist across the country. These diverse factors create unique challenges for states currently regulating CAFOs. Because of these unique challenges, NCSL does not believe it is appropriate for EPA to require Clean Water Act compliance of all confined animal feeding operations. EPA should maintain minimum federal water quality and other environmental standards. However, states should be allowed to make regulatory decisions in order to meet those minimum federal standards.  

4. Revise Existing Regulations.

NCSL supports EPA's efforts to work with the states to revise existing regulations for CAFOs but only if regulatory revisions are necessary to achieve the minimum federal water quality standards. Environmental and health concerns associated with CAFOs are the result of relatively recent changes in the animal production industry, including increases in the number and size of CAFOs. State legislatures are sensitive to these developments, and as a result many state legislatures have enacted or are considering laws to address these problems. To facilitate these endeavors, states should be given incentives, including financial support, flexibility and technical assistance. With federal support, state laws and regulations may be adequate to address the nationwide CAFO problems and achieve the minimum federal water quality standards.

NCSL believes that EPA should maintain minimum federal water quality and other environmental standards. States should be allowed to make regulatory decisions in order to meet those minimum federal standards because they are best able to address unique regional problems. If changes to existing federal regulations are necessary to protect human health and the environment, NCSL urges EPA to be sensitive to existing state laws and regulations by working closely with the states.

5. Increase EPA/USDA Coordination.

• NCSL urges EPA to consider the following principles when crafting the final strategy for CAFOs. These principles are taken from NCSL's policies on Environmental Federalism, Natural Resources Conservation, State Federal Relations for Environmental Programs, and Water Quality.
• Congress and the Executive Branch should consult with the appropriate state legislative and administrative officials during the process of enacting federal environmental legislation and in developing and implementing regulations.
• Federal environmental laws and regulations may be necessary to ensure uniform, minimum standards to protect the public health and environment. Uniform minimum federal standards for environmental protection should be preserved and strengthened.
• Within the framework of uniform minimum federal standards, states should have maximum flexibility in devising approaches and methods for obtaining compliance with such standards. The federal government should adopt performance based standards which prescribe the end to be accomplished and leave the means of obtaining the end up to individual states. In return for this new level of autonomy, the federal government should adopt a system of performance audits and objectively quantifiable benchmarks that would allow the federal government to certify state performance results in meeting uniform minimum federal standards.
• Federal environmental laws and regulations should be flexible in order to allow states to best respond to local needs. They should always be accompanied by adequate federal funding and they should not preempt existing state law and programs, except as necessary to achieve the minimum national standards.
• States should be given the opportunity to assume primary management and enforcement responsibilities for environmental programs. Their familiarity with local situations allows them to develop programs that are the most appropriate and effective. Primacy should be encouraged through the implementation of incentives such as flexibility and technical assistance.
• Statutory authority for states to enact state environmental and public health standards that are more stringent than their minimum federal counterparts should be maintained and renewed.
• The states have the primary authority and responsibility for water resources management. Primary authority and responsibility for water resources management functions, including planning, development and regulation, rest with the states and their delegated interstate agencies. Federal policy must recognize and respect the rights of the states to administer their individual water laws and to manage their water resources.
• Federal policy should be directed toward strengthening the capacity of the state to act as the integrator and manager of all programs affecting the water resources of the state. To do so effectively, states need financial support, technical assistance, and research assistance.
• Federal actions should be consistent with state programs, responsive to national policy, and carefully evaluated against mutually agreed upon standards. Federal actions must be consistent with adopted state and interstate water and related resources plans and programs. A major frustration among regional, state and local water resources decision makers is the problem of securing consistency of federal projects with federally-assisted water planning programs.
• A coordinated approach allowing, where possible, for integration of existing federal, state and, where possible, local laws which regulate groundwater quality should be undertaken.
• Groundwater policy should build upon existing federal and state laws and management techniques, and should assure the protection of regional supplies and quality. Any policy should recognize the diversity of hydrologic, climatic, economic, legal, and social factors within various states and regions.
• Agriculture depends upon the ready availability and quality of numerous natural resources, particularly soil and water. The federal government and the states share in the important stewardship of these natural resources. Policies affecting agricultural production should encourage the conservation, not the depletion, of natural resources. All federal government actions affecting these resources should be conducted in close cooperation and only after consultation with the states. A strong commitment to conduct research, in the area of improved methods of natural resource conservation and protection, must be maintained.

NCSL staff contacts: Melinda Cross, David Naftzger

AFI Agriculture & International Trade Committee

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