EPA increases scrutiny of non-point source pollution from ag lands

Casper – In mid-May one of a series of meetings hosted by the Wyoming Association of Conservation Districts around the state was held in Casper and focused on the new scrutiny livestock feeding operations are receiving from the Environmental Protection Agency (EPA) as non-point pollution sources.
Natural Resources Conservation Service (NRCS) Watershed Coordinator Nephi Cole was on hand to explain to producers what exactly that means.
“At this point, the laws are the same, but there’s an increased emphasis on and attention to regulations in the Clean Water Act (CWA),” said Cole, noting this has been made apparent in a series of EPA documents.
Two of those documents were the EPA’s Urgent Call to Action and the Clean Water Action Plan, while another was an executive order called the Draft Strategy for Protecting and Restoring Chesapeake Bay. “That was developed by the EPA on how they want to fix Chesapeake Bay, and the reason we care is they’re saying the Bay is a microcosm of all the pollution problems in waters in the entire United States, and if they figure out how to fix the Bay they can apply it to everywhere else and we’re good,” commented Cole.
Cole said he interpreted the documents to mean that EPA thinks it has control over the point sources of pollution in the country through permits, and they don’t think it’s fair that point sources in downstream areas are being “inequitably targeted.”
“They feel the non-point sources upstream should do their fair share of the work, also,” said Cole.
Under the CWA, point sources, or polluting entities that can be pointed out as polluters, are regulated, while non-point sources are not. Confined animal feeding operations (CAFOs) containing over 1,000 head of cattle, are considered point sources and must be permitted. However, Cole said most agriculture operations are considered non-point source with activities like plowing, fertilizer application and animal feeding operations (AFOs) with less than 1,000 head, although he cautions there is a desire by the EPA to see that change.
“What does that mean to us, as a non-point source upstream state?” asked Cole. “EPA has said they believe regulation of non-point sources is necessary, and they don’t have the authority now, but they want it. They basically threaten states and say the Clean Water Act does not allow them to regulate non-point sources, but the laws of Wyoming allow Wyoming to. The Wyoming Department of Environmental Quality (DEQ) could regulate non-point sources tomorrow if they chose to, but it’s not their policy, which is that they do not regulate where best management practices are being implemented in good faith.”
In Wyoming the delegated authority for the CWA and its implementation is the DEQ as the first level of regulation.
According to the documents, EPA believes 38 to 80 percent of non-point source pollution is directly attributable to agriculture operations through fertilizer, pesticides, field runoff and manure.
“EPA wants to develop regulatory mechanisms for non-point sources and figure out a way to regulate them somehow,” said Cole. A part of that is numeric nutrient water quality criteria for every water in the U.S., on which Wyoming is already working.
“That means phosphorus and nitrogen will be considered water quality pollutants and will be measured in every state in the nation,” said Cole. “And that’s significant to everybody – from the guy in the city who waters his lawn to the ag producer fertilizing his alfalfa.”
Cole adds the EPA would like to see the numbers really low so they can regulate. “If they’re lax, the water doesn’t become impaired and they can’t write a TMDL (total maximum daily load),” he said. “They would like to see watershed-level monitoring of fertilizer application, so manure or any other fertilizer has to be permitted and recorded so they can see how much nitrogen and phosphorus are on the ground in every watershed.”
Cole said the EPA would also like to expand the regulatory scope on CAFOs in two ways – to designate any AFO with one unacceptable condition as a CAFO and to implement large-scale watershed TMDLs, which can only be set after an assessment is made on where the pollution is coming from.
The EPA has also started a website where “interested citizens” can log on and see everyone who has permits with the agency. “They’ve said they want the information available so interested citizens can pursue legal action,” said Cole, noting the Humane Society of the United States has used the information to get ag operations in trouble with a lawsuit, fine and settlement agreement.
“It’s become evident to us, and to the ag community, that we need to make sure we have our ducks in a row, so when people say we’re the problem we can say we’re really not,” said Cole.
Christy Hemken is managing editor of the Wyoming Livestock Roundup and can be reached at christy@wylr.net.