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July 30, 2001

Concentrated Animal Feeding Operation Proposed Rule
Office of Water
Engineering and Analysis Division (4303)
U.S. Environmental Protection Agency
1200 Pennsylvania Avenue, Northwest
Washington, D.C. 20460

RE: Comments on the National Pollutant Discharge Elimination System (NPDES) Permit Regulation and the Effluent Limitations Guidelines and Standards for Concentrated Animal Feeding Operations (CAFOs)

To whom it may concern:

The National Conference of State Legislatures (NCSL) respectfully submits comments on the U.S. Environmental Protection Agency's (EPA) proposed revisions to federal animal feeding operation (AFO) regulations. Also enclosed is the official NCSL policy on Regulation of Concentrated Animal Feeding Operations (CAFOs).

NCSL supports a dynamic state-federal partnership in managing environmental and health problems associated with AFOs. NCSL has recently participated in a dialogue with the EPA, USDA and members of Congress to develop this partnership while preserving the states' leadership role in managing agricultural land use.

State legislators are sensitive to environmental and health issues related to AFOs and have been aggressive in developing appropriate state-based solutions. NCSL supports minimum federal water quality standards to protect the environment and public health. However, within the framework of these standards, states must be provided maximum flexibility in order to achieve water quality protection. State familiarity with local circumstances allows for the development of programs that are the most appropriate and effective.

Federal CAFO regulations should only be modified if they are proven to be inadequate when properly enforced. NCSL's support for new regulations also hinges on appropriate consultation and cooperation with states. This includes states being given adequate time to evaluate efforts to improve compliance under the existing regulatory framework.

State legislators are eager to work with the federal government to control water pollution. Thank you for your attention to this important matter. For additional information, please contact Molly Stauffer at (202) 624-3584.

Sincerely,

NCSL believes that water quality throughout the nation must be protected and, where appropriate, restored. NCSL also believes that the framework established under the current Clean Water Act (CWA) has enabled state and local governments, working in concert with the federal government, to make progress toward cleaner water.

NCSL disagrees with the U.S. EPA's findings, under Executive Order 13132, that the proposed rule has "no substantial direct effect" on the states and, therefore, does not have federalism implications. NCSL believes that this rule has a direct effect on the states, its relationship with the federal government and "...on the distribution of power and responsibilities among various levels of government." For example, the U.S. EPA does not currently have the authority to designate AFOs as CAFOs in the 43 states that have been delegated NPDES permitting authority. NCSL is concerned over the U.S. EPA's proposal to expand its authority in those states.

NCSL is also concerned that the proposed regulation will result in a significant cost increase to the states. For example, EPA states in the rule that it "anticipates that State and Federal Agencies will facilitate compliance with this rule by providing technical assistance and funding for small CAFOs, as available." What assistance and funding is envisaged and what are the estimated costs for each state?

In addition, according to EPA figures, this proposal may have a significant impact, both financial and programmatic, on a select number of states.

• Under the current regulatory scheme, 6 states account for over 45 percent of the CAFOs;
• Ten states account for over 55 percent of the total potentially regulated CAFOs under the proposed three-tier structure; and
• Nine states account for over 57 percent of the total potentially regulated CAFOs under the proposed two-tier structure.

If the U.S. EPA continues to move forward to revise the NPDES Permit Regulation and the Effluent Limitations Guidelines and Standards for CAFO's, NCSL urges the U.S. EPA to:

• Reevaluate its findings of "no substantial direct effect;" and
• Provide a detailed federalism impact statement as required under section 6(c)(2) of Executive Order 13132.

It was indicated in the State Compendium: Programs and Regulatory Activities Related to Animal Feeding Operations that, "...EPA's clear indication that states have an increasing interest in expanding their efforts to control water quality impacts from AFOs (is based on)...the promulgation of new state AFO regulations and program initiatives. At least 12 states have developed new regulations related to AFOs since 1996."

The two states-North Carolina and Iowa-that face the largest change in the number of potentially regulated CAFOs (combined they account for 17 percent of the total), are also the two states that have already adopted more stringent requirements.

North Carolina has developed its own water quality permit program that requires permits for a wider range of facilities than required under the current or proposed federal standards. Since 1993, permits have been required for facilities with: 100 head of cattle, 75 horses, 250 swine, 1,000 sheep or 30,000 birds with a liquid waste system.

Iowa requires that all open feedlots above a specified capacity obtain an operating permit. EPA itself recognizes in the report that this is an important distinction because "states have opted to expand the scope of facilities that fall within the definition of a CAFO by eliminating the requirement that a facility must have a discharge before being considered a CAFO."

These state initiatives illustrate that state legislatures are sensitive to health and environmental concerns that have resulted from recent changes in the animal production industry. In light of state leadership on these issues, U.S. EPA should only modify federal CAFO regulations if the current regulatory scheme is proven to be inadequate when properly enforced.

Ensuring State Flexibility

Fundamentally, NCSL is concerned with elements of the proposed rule that would limit state flexibility. For example, the proposed rule contains provisions that could eliminate the 25-year/24-hour storm provision, extend CAFO regulations to all poultry operations with the potential to discharge pollutants and cover immature swine and heifer operations. In some states, these may be appropriate measures to control water pollution, but in other states different steps may be more effective and economical. For this reason, state legislatures should retain the authority to determine what approach is most appropriate in the context of minimum federal water quality standards.

A major component of the proposed rule would create a new structure to define CAFOs under a two-tier or three-tier system. While a three-tier system may provide greater flexibility, a two-tier system may be less costly and administratively burdensome. Depending on the particular situation in each state, different approaches may be favored.

This dilemma illustrates the challenges of a prescriptive approach designed by the federal government. To the extent that a tiered structure is imposed on the states, state legislatures should be engaged as partners in determining an appropriate framework that is sensitive to conditions in each state. In addition, EPA should provide states with a detailed cost estimate and a comprehensive analysis of the impact of the various options on existing state laws.

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. EPA has two funds that can be used to assist AFOS, including the Section 319 program and the Clean Water State Revolving Fund (SRFs).

As a result of the proposed rule change, a number of facilities may potentially lose cost-share money available under EPA's Section 319 program and the use of funds from USDA's EQIP program for construction of storage facilities.

NCSL is concerned that proposed changes would place an increased burden on the already limited federal funds in the clean water SRF. If a reassessment of program priorities under the Clean Water Act occurs, state legislators must be involved in the discussions. States must retain the authority to allocate the SRF loan money to address top water priorities within their borders.

More generally, the integrity of state CAFO programs and the ability of state legislators to establish water pollution priorities within their borders must be preserved. Any new or amended rules that impose additional responsibilities on states should be accompanied by adequate federal funding.

As part of an overall strategy to tackle problems associated with CAFOs, NCSL encourages the U.S. Department of Agriculture (USDA) and the U.S. EPA to continue to support programs directed at CAFOs including:

• Financial support;
• Technical assistance;
• Research assistance;
• Voluntary installation of best management practices;
• Educational programs; and
• Environmental and conservation programs.

Conclusion

States play a pivotal role in ensuring water quality. The state-federal partnership in environmental protection is a delicate balance that requires vigorous intergovernmental cooperation. Over 71 percent of major federal environmental programs have been delegated to the states. Over 80 percent of all federal and state enforcement actions are taken by state environmental officials.

NCSL urges the EPA to proceed with caution as it moves forward with this proposal. As stated previously, NCSL questions the necessity of a change in the existing federal regulatory scheme unless the current regulatory scheme is proven to be inadequate when properly enforced.

If this proposal does move forward, it is essential that EPA continue to consult with state legislators throughout the rulemaking process. It is essential that the rule recognizes and addresses the need to provide technical and financial assistance to the states and maximum flexibility.

Given these factors, it is also essential that the EPA provide a detailed federalism impact statement as required under section 6(c)(2) of Executive Order 13132.

Only when the role of states and state legislatures is respected, can we be optimistic that rapid progress will be realized to ensure the safety of our nation's waters.

Staff contacts: David Naftzger, Steve Smith

AFI Agriculture and International Trade Committee

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