The EPA will back away from a commitment to write new national regulations that would limit pollution from animal farms in the Bay watershed under an agreement it reached with the Chesapeake Bay Foundation.
Instead, the agency promised to ramp up its oversight of state programs that regulate livestock operations — particularly smaller farms that are a major source of nutrient pollution to the Bay and its rivers.
Both EPA and CBF officials described the agreement as a pragmatic approach that would improve the accountability of existing state programs rather than trying to impose expansive new federal regulations that would likely face protracted court challenges.
"These are tools that we have in place currently," said Kim Coble, CBF vice president for environmental protection and restoration. "However, what we are doing is we are ensuring that those programs are as sharp as they possibly can be, and are very focused on ensuring that the pollution reductions from these animal feeding operations occur as required" under the Chesapeake Bay Total Maximum Daily Load, or pollution diet.
The agreement was immediately criticized by several other environmental groups who said it would delay efforts to curb pollution from animal feedlots both regionally and nationwide.
As part of a 2010 settlement agreement for a lawsuit brought by the CBF, the EPA had agreed to write new regulations to control discharges from animal feeding operations. In a federal Chesapeake Bay restoration strategy completed that year, the EPA also said it would write new regulations to address pollution from animal farms in part by "expanding the universe" of animal farms being regulated to include smaller operations.
Under existing regulations, EPA authority is generally limited to regulating the largest livestock farms, known as concentrated animal feeding operations, or CAFOs. To be regulated as a CAFO, a farm typically needs to have at least 700 milk cows, 1,000 cattle or 125,000 broilers.
At a news conference announcing the new agreement with the CBF, EPA officials said only about one third of the manure from animal farms in the Bay watershed come from CAFOs. The rest comes from smaller farms, known as AFOs, or animal feeding operations. There are thousands of AFOs in the Bay watershed. Animal manure is the largest source of agricultural nutrients in the watershed.
"The smaller operations cumulatively add up to more than the large operations alone," said Jon Capacasa, director for water quality protection with EPA Region 3, which includes the Bay watershed. "It made sense for us to take a more inclusive approach and deal with the whole universe of animal agriculture rather than just a select slice of it which is federally regulated, the CAFOs."
Rather than increasing its own authority through regulations, the EPA will rely on the framework set forth in the Bay TMDL, which set nutrient and sediment reduction goals for each state and tributary. Under the TMDL, the states were required to develop detailed watershed implementation plans showing how they would achieve their goals for each pollution sector, including livestock operations. State plans also needed to demonstrate that their programs had adequate funding and staffing to achieve their objectives. If the EPA finds state plans are not reaching objectives, it can take a variety of actions against states, such as withholding grant funds or requiring that nutrient shortfalls in agriculture be offset by regulated sectors, such as wastewater treatment plants.
Under the agreement signed with the CBF, the EPA will review each state's CAFO and AFO programs by June 2015 to determine whether they are being effectively implemented and are likely to meet goals set in state watershed implementation plans. If not, it would recommend corrective actions. The state evaluations and EPA recommendations would be public.
In addition, the EPA will examine several AFOs in each state to see if they are meeting state water quality objectives. The agency will continue to review CAFO permits and their associated nutrient management plans to see if they are meeting goals. If it appears existing programs are unlikely to achieve water quality goals, the EPA would propose new federal rules in 2018.
At the news conference, CBF attorney Jon Mueller said that the decision to work within the TMDL framework was driven by the likelihood that any new rules would be delayed by litigation.
"All we need to do is look at the past history of the CAFO rule and every time it's been amended it's been challenged by a variety of groups," Mueller said. "We all recognized that the rule, whatever it said would have been tied up in litigation for some time. Here we are just working on the existing regulations, and we don't need to go through that process, so there would be no delay. What we are looking for is action right now."
Bay Program data suggests that in places like Lancaster County, PA, where there are many small farms, dairy operations with as few as 50 cows would likely have needed to come under federal regulations if the majority of manure was to be addressed. Officials considered it unfeasible to try to bring that many farms under regulation without protracted court battles.
But the deal left many environmentalists disappointed because, without direct authority to regulate smaller operations, the EPA has to rely on state programs to protect waterways. Further, they had anticipated that the Bay action would lead to a new, stronger, federal CAFO rule. That now appears unlikely.
A group of eight environmental groups working on the issue in Maryland said in a joint statement they were "very disappointed to see the Obama administration backpedal on its commitment to strengthen federal pollution control rules on agricultural operations. The EPA's unwillingness to deal with this at a national level is a serious step backwards. It should aggressively pursue including more polluting farms within the regulatory framework through changes to its Clean Water Act rules."
The groups included the Assateague Coastal Trust and Assateague Coastkeeper, Chesapeake Climate Action Network, the Environmental Integrity Project, Environment Maryland, Food and Water Watch, Potomac Riverkeeper, Sierra Club Maryland Chapter and Waterkeepers Chesapeake.
At the same time, the National Chicken Council, National Turkey Federation and U.S. Poultry & Egg Association hailed the settlement between the EPA and CBF and its emphasis on existing programs. "This will help to assure that no false assumptions are made about the potential contribution of livestock and production to pollution in the Chesapeake Bay," they said.
But any new information gained under the agreement could be small. Although the EPA agreed to assess AFO and CAFO operations in each state, it is only obligated to review AFOs in four subwatersheds over the next four years, inspecting "no less" than four AFOs in each. In other words, the agency could inspect just 16 AFOs, total, in the 64,000-square-mile Bay watershed. In addition, it is committed to doing four CAFO inspections in each watershed state over the next two years, for a total of 24.
An agency official stressed those were minimum numbers.
Last year, the agency inspected 30 CAFOs in the watershed, according to a federal progress report on Bay activities.
"Obviously, the agency has some budget issues, I am sure, but if this is going to give us an improvement, we shouldn't be going backwards. We should be stepping it up," said Velma Smith, who works with the PEW Charitable Trusts agricultural programs. "Clearly it's not easy. But they aren't supposed to protect the environment only when it's easy."