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January 19, 1999

The Honorable Dan Glickman
Secretary of Agriculture
U.S. Department of Agriculture
1400 Independence Avenue, Southwest
Washington, D.C. 20250

Dear Secretary Glickman:

The National Conference of State Legislatures (NCSL) respectfully submits comments on the U.S. Department of Agriculture/U.S. Environmental Protection Agency draft unified national strategy for animal feeding operations. Also enclosed is the official NCSL policy on Regulation of Concentrated Animal Feeding Operations.

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 animal production, including increases in the number and size of animal feeding operations (AFOs) have led in some cases to environmental and health problems. State legislators are sensitive to these concerns. 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 AFO discharges in the context of National Pollution Discharge Elimination System (NPDES) authorization and through voluntary programs. Federal AFO regulations should only be modified if they are proven to be inadequate when properly enforced.

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

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 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 laws, except as required to achieve minimum national standards.

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

Sincerely,

Comments on the U.S. Department of Agriculture/U.S. Environmental Protection Agency Draft Unified National Strategy for Animal Feeding Operations

The National Resource Conservation Service estimates that 300,000 animal feeding operations (AFOs) will need to develop comprehensive nutrient management plans (CNMPs) or revise existing CNMPs to meet the performance expectation of the strategy. EPA estimates that between 15,000 and 20,000 operations will be considered concentrated animal feeding operations and be required to develop and implement CNMPs as a permit requirement. To implement this plan, capacity for CNMP development and implementation will have to be significantly increased.

As part of an overall strategy to tackle problems associated with CAFOs, NCSL supports EPA and USDA assistance to the states in building capacity for CNMP development and implementation. 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.

NCSL supports a state-federal partnership in determining minimum standards for CNMPs and the most appropriate role for the states, USDA, EPA and third parties in implementation. Any new or amended rules that impose additional responsibilities on states should be accompanied by adequate federal funding and should not preempt existing state programs. States should be encouraged through incentives, including flexibility, financial support and technical assistance. States should retain the right to have standards that are more stringent than the national rules.

According to the USDA/EPA draft strategy, for the vast majority of AFOs (95 percent), voluntary efforts will be the principal approach to assist owners and operators in developing and implementing CNMPs and in reducing water pollution and public health risks. To determine whether conservation policies and practices are current and sufficient, the federal government should continue to work with the states to collect data and survey water resources. USDA and EPA should also continue to support programs directed at CAFOs including research, technical assistance, voluntary installation of best management practices, educational, environmental and conservation programs. These programs are a valuable tool in encouraging AFO owners and operators to take early voluntary action.

USDA has a variety of programs to assist AFO owners and operators. These programs include the Environmental Quality Incentive Program (EQIP), the Conservation Reserve Program (CRP) and the Small Watershed Protection Program. These programs have proven to be very popular with agricultural producers. According to USDA, in 1997 and 1998, requests for EQIP funds for AFOs were three times the amount available.

EPA has two funds that can be used to assist AFOs, including the Section 319 program and the Clean Water State Revolving Fund. Funds from the clean water state revolving loan program may be allocated by states to CAFOs for measures to reduce or eliminate discharges. However, NCSL would like to caution against federal reliance on the clean water State Revolving Fund (SRF) to finance new CAFO programs required by the USDA-EPA AFO strategy. States must retain the authority to allocate limited SRF loan money to address top water priorities within their borders. Much of the SRF loan money goes to municipalities for innovative water quality programs and to upgrade and build new waste and drinking water treatment facilities. Funding for CAFOs should not be a federally mandated priority that competes with the needs of municipalities.

Both the USDA and EPA programs have significant demands on limited resources. It is unreasonable to believe that these already oversubscribed programs will be able to accommodate significantly increased requests related to AFOs given current resources and program priorities. State legislators must be involved in any reassessment of program priorities so that new demands do not have the effect of creating unfunded or underfunded mandates on the states. Any increase in funding for these programs must be pursued in a fiscally responsible manner consistent with a balanced federal budget. The integrity of state AFO programs and the ability of state legislators to establish water priorities within their borders must be preserved.

NCSL firmly supports efforts to increase compliance with existing Clean Water Act regulations, particularly federal and state pollution discharge elimination system permit programs. NCSL believes one of the primary problems with existing federal AFO policy may be insufficient compliance rather than inadequate regulations. According to EPA estimates, a majority of CAFOs do not hold permits required by the NPDES program.

NCSL believes that federal AFO regulations should only be modified if they are proven to be inadequate when properly enforced. Therefore, NCSL will not support new regulations unless efforts to increase compliance under the existing regulations do not address current problems. NCSL support for new regulations also hinges on appropriate consultation and cooperation with states. States must be given adequate time to evaluate efforts to boost compliance under the existing regulatory framework.

In addition, EPA and USDA should make allowances for states that have CAFOs operating within their borders but have experienced no water quality impairment due to such operations. For example, Alaska has only a handful of operations that fall under the federal definition of CAFO and has no documented incidents of CAFOs impairing water quality. In this case, the Alaska state legislature has taken adequate measures to protect their resources, demonstrating the strength of a self-designed, state specific program. In this state, as in others, there may be no need for a new, more aggressive federal regulatory program.

A strong commitment to conduct research in the area of improved methods of natural resource conservation and protection must be maintained. The USDA/EPA draft strategy plainly admits that, "knowledge gaps exist in our understanding of the effects of AFOs on natural resources and environmental quality." Rectifying this knowledge gap is critical to assessing the environmental impact of AFOs and designing appropriate public policy. The federal government should continue to work with the states to collect data and survey water resources. Also, NCSL supports the maintenance of the state-federal partnership in agricultural research at state universities.

State legislators recognize that the animal agriculture industry has a critical role in developing strategies to confront environmental and public health problems associated with AFOs. In this connection, state legislators and NCSL have been engaged in an ongoing dialogue with individual operators and industry groups much in the same way as USDA, EPA and representatives from state agricultural and environmental agencies. While representatives of the federal government and industry are important to this dialogue, state legislators are equally vital. Given this important role, it is troubling that state legislators were not involved in the recent EPA/USDA discussions with the pork and poultry industries. Key stakeholders, including state legislators, must be involved in the development of future agreements that could impact state laws and regulations.

NCSL believes that the federal government should take the lead role in coordinating water quality research and data collection. EPA and USDA should continue to work with states to collect data and survey resources to determine the extent of health and environmental problems associated with CAFOs. In addition, EPA and USDA should coordinate a state-federal effort to identify and establish responsible effluent control options.

NCSL strongly supports minimum federal water quality standards to protect public health and the environment. The federal government should work with states when setting such standards. When such standards involve agricultural land use, EPA should consult and cooperate with USDA as well as the states.

States should retain the authority to set standards that are stricter than the federal standards. State familiarity with local circumstances allow states to develop programs that are the most appropriate and effective, therefore states should be given the utmost flexibility to develop programs to meet minimum federal standards.

Click here for a chart of State Non-Point Source Water Pollution Programs.

NCSL staff contacts: David Naftzger, Steve Smith

AFI Agriculture & International Trade Committee

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