Opinion by Bobbie Frank

WACD: CAFO Regulation and Enforcement Should Be Left to States
By Bobbie Frank, Executive Director, Wyoming Association of Conservation Districts

    On Oct. 21, 2011 the Environmental Protection Agency (EPA) published a proposed rule, the National Pollutant Discharge Elimination System (NPDES) Concentrated Animal Feeding Operation (CAFO) Reporting Rule. Written comments on the proposed rule were initially due on or before Dec. 20, 2011 however, based on several requests, EPA extended the public comment period until Jan. 19, 2012.
    Extensive history pre-dates this proposed rule, primarily related to a settlement agreement between EPA and some environmental organizations in regard to 2008 CAFO rule revisions. EPA claims this proposed rule is being proposed pursuant to that agreement, however, several industry organizations who are also party to the settlement agreement believe the rule includes “numerous, substantial changes… relative to the settlement agreement.”
    In essence, in previous CAFO rule revisions, EPA attempted to require all CAFOs that “proposed” to discharge to obtain a NPDES permit, however, industry challenged on the basis that Clean Water Act NPDES permits are only required if there is an actual discharge. Industry prevailed. However, in the same settlement, which also included environmental organizations, EPA committed to stepping up enforcement of the regulations. EPA purports that this rule is intended to provide the necessary information for enforcement actions to be taken by the agency or interested organizations.
    Wyoming’s treatment of CAFOs varies from many states. In Wyoming, producers who meet the definition of a large CAFO are required to obtain a WYPDES permit. For example, feedlots of 1,000 head or greater beef cattle, regardless of whether the facility is containing all of its waste in a 25-year/24-hour storm event, must still obtain a permit from Wyoming Department of Environmental Quality.     Those below the threshold are not required to obtain a permit. However, if what is commonly referred to as “unacceptable conditions” exist, then those must be removed or remedied, otherwise the producer may be subject to regulatory actions.     These unacceptable conditions consist primarily of situations where either a creek or water body runs through a facility, or an irrigation ditch or pipe runs through the facility and then enters a surface water at some point. These are generalizations, obviously, and producers should do their own research to determine if they have “unacceptable conditions” that may cause regulatory concerns, and also to determine whether this proposed rule would apply.
    In the early 2000s, WACD, in concert with our legal counsel, developed a self-assessment to help producers determine where they may fall in terms of the regulations as well as impacts to water quality. That assessment tool can be found on our website at conservewy.com/docs/ProducerEvaluation.pdf.
    This rule proposes two primary regulatory options 1) All CAFOs (as defined in the regulations) would be required to submit information to EPA or 2) Only CAFOs located in “focus watersheds” would be required to submit information on their operations.
    For years, the EPA has pushed states to conduct CAFO inventories. In the early 2000s EPA even initiated inventories of their own using a variety of methods such as fly-overs, satellite imagery, contractors who drove around documenting livestock operations, industry publications and the like. The WACD submitted a Freedom of Information Act request to EPA in 2000 after the Association became aware that such inventory activities were occurring and confirmed that these types of activities were underway.
    This rule would shift the burden to the livestock producers and make it mandatory that all producers who meet the definition of a CAFO submit a detailed survey form. Failure to do so would subject livestock producers to potential regulatory actions, including penalties that can be up to $37,500 per day.
    The information producers would be required to submit includes:
–    Name and address of owner and operator
–    If contract operation – name and owner of integrator
–    Latitude/longitude
–    Type of facility
–    Number and type of animals
–    Type and capacity of manure storage
–    Quantity of manure, process wastewater, and litter generated annually
–    Whether CAFO land applies
–    Available acreage for land application
–    If land applying, if a nutrient management plan exists
–    If CAFO land applies, whether NMP and keeps records on site
–    If does not land apply, what is done with waste
–    If CAFO transfers manure off site, quantity transferred
–    Whether the CAFO has applied for NPDES permit
    The second option proposed, would result in EPA designating focus watersheds where CAFO discharges may be causing water quality concerns and EPA would obtain info from CAFOs in these areas. The geographic area may be defined by zip codes, counties, HUC codes or watersheds. The rule indicates EPA will use state’s 303(d) list (impaired waters), publicly available data and nutrient monitoring data to define “focus” watersheds. In addition, criteria for focus watersheds will include those with vulnerable ecosystems, drinking water source, high recreational value or outstanding natural resources waters (Wyoming’s Class 1 waters), vulnerable soil types, high density of animal agriculture and/or other relevant information.
    EPA also has a number of other options/items they seek comment on, including requiring states to compile information from producers and submit or directly require the producers to submit. They are also considering combining USDA data with other information and data to create an inventory, obtaining information and data from state departments of agriculture, utilizing satellite imagery and aerial photography combined with county tax information, building permits, etc.
    One interesting proposal EPA includes is the use of non-governmental reports on CAFOs, such as the Food & Water report Factory Farm Nation: How America Turned its Livestock Farms Into Factories. Take a look at the “Factory Farm Map” that accompanies the report. It can be found at factoryfarmmap.org/#animal:all;location:WY;year:2007. Notice how Carbon County shows as a high density for “factory farms.” The obvious misinterpretation and misrepresentation of agriculture production should immediately disqualify this report as a source of reliable information.
    WACD has developed comments and would encourage livestock producers to submit as well. Basically, the Association believes it should be left to the states, especially in states like Wyoming where the state has assumed responsibility and authority for regulation of point source discharges, to decide how CAFO enforcement will occur. There are a host of issues with this proposed rule, not the least of which are the security issues and problems created when a federal agency wants to publish detailed information on a website on our nation’s food supply.
For a copy of the Association’s comments, visit conservewy.com.