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RL30437: Water Quality Initiatives and Agriculture

Claudia Copeland

Specialist in Resources and Environmental Policy
Resources, Science, and Industry Division

February 16, 2000  

ABSTRACT

Agriculture, which has been a relatively minor component of national water quality policies and programs, especially regulatory policies, is currently involved with several recent Administration water quality initiatives. This report provides background on three ongoing initiatives with potential to affect agriculture: the Clean Water Action Plan, the Unified National Animal Feeding Operations Strategy, and implementation of the Total Maximum Daily Load (TMDL) provisions of the Clean Water Act. The report includes a glossary of terms and a chronology of the key deadlines in the initiatives and identifies other CRS reports for additional information. It will be updated as developments warrant.

Summary

Congress most recently enacted amendments to the nation's water quality law, the Clean Water Act (CWA), in 1987. But national water quality policy has evolved in the intervening years, as a result of implementation of the 1987 amendments and related Administration initiatives intended to fulfill the requirements and meet the goals and objectives of the Act. Agriculture, which has been a relatively minor component of national water quality policies and programs, especially regulatory policies, is now involved in several aspects of three recent initiatives.

In the Clean Water Action Plan, an Administration initiative intended to address the nation's remaining water quality challenges, several key actions focus on agriculture, federal lands, and forestry as part of the overall goal of the Plan to more effectively control nonpoint source pollution. Specific outcomes, requirements affecting agriculture, if any, and any possible deadlines will be evident as the key actions are set in motion.

One of the first Administration actions to carry out the Clean Water Action Plan was a national strategy for addressing waste management by one segment of agriculture, animal feeding operations (AFOs). Under the AFO strategy, all operators of animal feedings operations are expected to develop and implement site-specific comprehensive nutrient management plans, while an estimated 15,000 to 20,000 large AFOs and those contributing to water quality impairments will be priorities for regulatory programs and enforcement.

A third policy development, separate from the Clean Water Action Plan, is implementation of existing CWA requirements which concern measures to improve the quality of waters that remain pollutant-impaired even after application of traditional pollution controls by industrial and municipal "point sources." Most of agriculture is classified as a "nonpoint source" and is not subject to CWA controls. These requirements are the Act's Total Maximum Daily Load (TMDL) program. As states implement the TMDL program, where agricultural sources are identified as responsible for water quality impairments, they may be required to adopt control actions and/or management measures. Determinations of impairments and required actions will be site-specific and variable. However, there is controversy over whether nonpoint sources of pollution (diffuse run off that does not come from a pipe, ditch, or similar conveyance) are lawfully covered by the TMDL program. If only point sources are covered, impacts on agriculture would be considerably fewer. Recently proposed regulatory changes to clarify and strengthen the TMDL program have drawn considerable attention and been widely criticized by agriculture and forestry groups, other industry groups, states and localities, and environmental groups.

This report provides background on the Clean Water Action Plan, the Unified National AFO Strategy, and implementation of the TMDL provisions of the Clean Water Act. At the end of the report are a glossary of terms and a chronology of the key deadlines that can be identified in the initiatives.

Contents

Introduction
        Linkage and Coordination
Part 1: The Clean Water Action Plan
        Elements of the Plan and Early Implementation
                Early Implementation of the Clean Water Action Plan
                Litigation Challenging the Clean Water Action Plan
                Senate Oversight Hearing on the CWAP
Part 2: Animal Feeding Operations and the Clean Water Act
                Problems with CAFO Regulation
       Initiative under the CWAP: The National AFO Strategy
                The National AFO Strategy
               
Guidance on Permits
                Response to the Strategy
                Appropriations Requirement

Part 3: Related Water Quality Initiative: TMDLs
        Implementation
        Elements of the August 1999 TMDL Proposal
                The Listing Process
                Pollution vs. Pollutants; Point and Nonpoint Sources
                Data and Documentation
                Minimum Elements of a TMDL
                EPA Authority
                Regulatory Requirements and Costs

Glossary of Terms
Timeline of Identified Activities and Events In the AFO Strategy and TMDL Program

Introduction

Congress most recently enacted amendments to the nation's water quality law, the Clean Water Act (CWA), in 1987. But national water quality policy has evolved in the intervening years, as a result of implementation of the 1987 amendments and, even more so, as a result of Administration initiatives intended to fulfill the requirements and meet the goals and objectives of the Act as a whole. One of the most visible of these initiatives is the Clean Water Action Plan (CWAP), announced by the President and Vice President in February 1998. Its purpose is to build on the environmental successes of the CWA since it was enacted in 1972 and to address the nation's remaining water quality challenges through more than 100 actions now being developed or implemented by agencies of the government together with state, local, public and private partners. Somewhat less headline-worthy but likely to have widespread impact is implementation of an existing provision of the CWA, called the Total Maximum Daily Load (TMDL) program, reinvigorated and driven by lawsuits and recently proposed regulatory changes.

The Clean Water Act's traditional focus has been on controlling wastewater from manufacturing and other industrial facilities, termed "point sources," which are regulated through discharge permits. That statutory and regulatory focus on point source controls has enabled much progress towards the nation's water quality goals. Yet, as point source pollution has been controlled, uncontrolled discharges in the form of runoff from "nonpoint sources" have become proportionally a larger share of remaining water pollution problems. Nonpoint pollution occurs as surface erosion of soil by water and as surface runoff of rainfall or snowmelt from diffuse areas such as farm and ranch land, construction sites, and mining and timber operations. Except for large animal feeding operations, most agricultural activities are considered to be nonpoint sources, since they do not discharge wastes from clearly identifiable pipes, outfalls, or similar "point" conveyances. Nonpoint sources are not required to obtain CWA discharge permits. Consequently, agricultural and other nonpoint sources are not subject to the compliance and enforcement regime that applies to point sources.

How is agriculture now involved in current water quality discussions? Agriculture, which has largely been at the sidelines of national water quality policies and programs, especially regulatory policies, since much of its activities are not directly subject to the Clean Water Act, now finds its activities scrutinized in connection with several aspects of the recent water quality initiatives, which are discussed in this report. First, one of the key goals of the CWAP is more effective control of nonpoint source pollution, and because water quality data identify agriculture as a significant contributor to nonpoint pollution, a number of actions in the Plan focus on agriculture as a whole. Second, one of the first Administration actions to carry out the CWAP was a national strategy for addressing waste management by one segment of agriculture, animal feeding operations (AFOs). This strategy will affect an estimated 15,000 to 20,000 of the largest animal feeding operations through regulation, and it seeks to encourage all livestock producers with smaller operations to adopt improved waste management practices voluntarily. A third policy development, separate from the CWAP, is implementation of the existing TMDL provision of the CWA which concerns measures to improve the quality of waters that remain pollutant-impaired even after application of traditional pollution controls.1 L It affects nonpoint as well as point sources of pollution from agriculture and other sectors. Where agricultural sources are identified as contributing to these continuing water pollution problems, they may be required by states to take steps that will help correct impairments.

Agricultural and other nonpoint sources have become increasingly prominent in debates over water quality policy, however, because these types of diffuse sources are believed to be the largest remaining water pollution problem affecting United States waters. To begin to address these problems, Congress added section 319 to the CWA in 1987, directing states to implement programs for managing nonpoint sources. Consequently, under federal law, agricultural sources could be subject to state- developed plans requiring operators to use management measures to limit pollutant runoff from their lands. There is anecdotal information that some state nonpoint pollution programs are addressing agricultural runoff in various ways, including technical and financial assistance.2

In light of the several new federal water quality policy initiatives discussed in this report, questions arise concerning how, specifically, agriculture will be affected. The answer, it seems, is that it will be affected substantially but not systematically, in that the effects do not grow out of an integrated policy aimed specifically at agriculture. The Administration and the individual federal agencies involved in these activities have produced voluminous reports and other documents detailing the overall CWAP and separate actions, but none describes holistically or comprehensively how agriculture or any other sector of the economy will be impacted overall. Still, substantial effect seems likely by virtue of the greater scrutiny in general that is being given to agriculture's impact on water quality. Operators of large animal feeding operations are especially affected by the Administration's AFO waste management strategy. Remaining impacts, especially of the TMDL program, depend very much on site-specific considerations of water quality impairments (i.e., what are the sources contributing to impaired waters, what will be the most effective ways to manage those sources) and how states will respond to the requirements of implementing the TMDL provision of the law. Each of the three initiatives will affect agriculture.

• In the Clean Water Action Plan, several key actions address agriculture, federal lands, and forestry as part of the overall goal in the Plan to more effectively control nonpoint source pollution. Specific outcomes, requirements affecting agriculture, if any, and deadlines, if any, will be evident as the key actions are set in motion.

• Under the AFO strategy, all operators of animal feeding operations should develop and implement site-specific comprehensive nutrient management plans, while an estimated 15,000 to 20,000 operators of AFOs (large facilities, which are termed confined animal feeding operations, or CAFOs, and smaller ones contributing to water quality impairments) will be priorities for regulatory programs and enforcement.

• As states implement the TMDL program, where agricultural sources are identified as responsible for water quality impairments, agriculture may be required to adopt control actions (for those in agriculture which are point sources) and/or management measures (for agricultural nonpoint sources) to help clean up waterways. Determinations of impairments and required actions will be site- specific and variable. However, there is controversy over whether nonpoint sources are lawfully covered by the TMDL program. If only point sources are covered, impacts on agriculture would be considerably fewer.

This report consists of three major parts providing background on the three ongoing water quality initiatives: the Clean Water Action Plan, the Unified National AFO Strategy, and implementation of the TMDL provisions of the Clean Water Act. At the end of the report is a glossary of terms and a chronology of the key deadlines that can be identified in the initiatives.

Linkage and Coordination

Each of the three initiatives described in this report contains deadlines for actions to be taken by federal agencies, states, and others. Based on the public documents associated with each, there is relatively little apparent coordination that would help agriculture or other sectors assess the aggregate impacts of all of these developments.

In the introductory part of the Clean Water Action Plan (discussed in Part I of this report), the Administration describes national data on water quality impairments and ongoing state efforts to identify pollution-impaired waters, as background for "today's water quality challenges" which the Plan addresses. Regarding agriculture, in addition to actions in the Plan related to reducing pollution from AFOs (discussed in Part 2), several other key actions also described in Part I specifically address agriculture, while others address federal lands and forestry. None of these is specifically tied to the AFO strategy.

The AFO strategy is one key action under the Clean Water Action Plan and, consequently, has obvious links to the Plan. In the AFO strategy, the principal linkage between it and the current TMDL program of the Clean Water Act (see Part 3 of this report) is in the strategy's discussion concerning the role of state and tribal governments, which are responsible for using the TMDL process to identify pollution- impaired waters. There is explicit linkage of the AFO strategy with the TMDL program in one area. Under the AFO strategy, where TMDL assessments identify the causes of water quality impairment as coming, for example, from animal manure or wastewater problems, those assessments may be the basis for identifying AFOs which should be priorities for inclusion in the strategy's regulatory program.3 However, CWA regulations proposed in August 1999 to revise the TMDL program are separate from activities under the Clean Water Action Plan, including the AFO Strategy, and contain no discussion of actions under the Plan.

Part 1: The Clean Water Action Plan 4

In October 1997, on the 25" anniversary of the Clean Water Act (CWA), Vice President Al Gore announced an initiative intended to build on the environmental successes of that Act and to address the nation's remaining water quality challenges. While much progress has been made in achieving the ambitious goals of the law to restore and maintain the chemical, physical and biological integrity of rivers, lakes, and coastal waters, problems persist. Based on the limited water quality monitoring that is done by states, it is estimated that about 40% of those waters do not meet applicable water quality standards. The types of remaining water quality problems, especially run off from farms and ranches, city streets, and other diffuse sources, are more complex than is controlling pollution discharged from the end of pipes at factories and sewage treatment plants.

The Vice President directed the Environmental Protection Agency (EPA) and the U.S. Department of Agriculture (USDA) to coordinate the work of other federal agencies to develop an Action Plan within 120 days to improve and strengthen water pollution control efforts across the country.5 It was to focus on three goals: enhanced protection from public health threats posed by water pollution, more effective control of polluted runoff, and promotion of water quality protection on a watershed basis. The Departments of Commerce and the Interior and the U.S. Army Corps of Engineers also have roles. The purpose of the Action Plan is to coordinate federal efforts to achieve the three goals. Over all, the Initiative seeks primarily to address the wide range of activities that cause nonpoint source pollution (polluted runoff), including agriculture, mining, urban development, and forestry. EPA and states believe polluted runoff causes more than one-half of remaining water quality problems. Agriculture is believed responsible for the largest portion of today's water quality impairments due to polluted runoff-70% of impaired rivers and streams and 49% of impaired lakes, according to EPA.

Elements of the Plan and Early Implementation

President Clinton and Vice President Gore released the Action Plan on Feb. 19, 1998 (the text is available at [http://www.cleanwater.gov/]). The components of the plan, more than 100 actions, correspond to specific elements identified by the Vice President in October 1997. It consists mainly of existing programs, including some planned regulatory actions that agencies have had underway, now to be enhanced with increased funding or accelerated with performance-specific deadlines. Components of the Action Plan announced in February 1998 are built around four key tools to achieve clean water goals:

• "A Watershed Approach," using a collaborative effort by governments, the public, and the private sector to restore and sustain the health of watersheds.
• "Strong Federal and State Standards," to protect public health, prevent polluted runoff, and ensure accountability.
• "Natural Resource Stewardship," calling on federal natural resource and conservation agencies to apply resources and technical expertise to state and local watershed restoration and protection.
• "Informed Citizens and Officials," calling on federal agencies to improve the information available to the public about the health of watersheds and safety of beaches, drinking water, and fish.

Many of the specific elements of the Plan are intended to address nonpoint source contributions to water quality impairments nationwide. According to the Plan and EPA reports, polluted runoff is now the major source of water quality problems in the United States. EPA's 1996 National Water Quality Inventory, which is the most recent compilation of conditions, summarizes state and tribal surveys of water quality; it indicates that about 40% of surveyed U.S. waterbodies are impaired by pollution, with the leading source being polluted runoff. About 70% of impaired rivers and streams and 49% of impaired lakes are impaired by runoff or discharges from agriculture.6 In 22 states that specifically assessed impacts of agricultural activities on rivers and streams, the leading categories of agricultural source impairments were nonirrigated crop production, irrigated crop production, and animal operations (feedlots and animal holding areas).7

These water quality data are limited, because they describe only conditions in waters assessed by states and tribes, but do not include all waterbodies. For the 1996 report, states surveyed 19% of river miles, 40% of lake acres, and 72% of estuaries; therefore, the data should be used with caution. Nevertheless, EPA believes that the data point to a major, continuing water pollution problem coming from agricultural sources of all types—crop and pastureland, rangeland, and concentrated animal feeding operations.

Regarding agriculture, a prominent key action in the Plan is reducing pollution from animal feeding operations (see Part 2 of this report). In addition, the Plan includes several other key actions concerning agriculture, such as: USDA will implement existing conservation reserve and conservation enhancement programs; USDA will work with agricultural producers to encourage the use of marketing and promotion orders to assist them in meeting pollution prevention objectives; and USDA will study the feasibility of providing an insurance program to enable producers to offset risks of utilizing new technologies by managing fertilizers and pesticides to prevent pollution (Clean Water Action Plan, pp. 50-54).

The Plan contains other actions to enhance watershed management on federal lands, starting with developing by 1999 a unified policy to provide a framework to ensure that federal land and resource management activities demonstrate water quality stewardship. Related actions include substantially improving maintenance of forest roads and trails on federal lands; publication of new forest transportation regulations by the U.S. Forest Service in 1999; assessment by EPA of whether to revise CWA permit regulations relative to forest roads; implementation of an accelerated program to restore stream corridors; actions by federal land management agencies to implement forest health strategies; and improved management of public rangelands (Clean Water Action Plan, pp. 32-36)

Early Implementation of the Clean Water Action Plan. The President's FY1999 budget identified the Clean Water Action Plan as a high priority for environmental programs. It requested a total ofS2.5 billion—a $609 million, or 33%, increase over 1998 base funding levels—for a multi-agency Clean Water and Watershed Restoration Initiative. By October 1998, Congress had passed FY1999 appropriations bills to fund the Plan. Over all, the enacted bills provided $2.0 billion— less than 10% of the increased funds sought by the Administration. EPA received close to full funding for its requested Action Plan activities, but USDA received less than 4% of requested increases for its activities under the Plan. In the President's FY2000 budget, the Administration requested $450 million in increases ($2.45 billion total) for the Plan. Appropriations bills provided $2.17 billion-$ 128 million more than in FY1999, but $322 million less than was requested. For FY2001, the President's budget requests $2.76 billion for activities under the Plan, a 27% increase above the FY2000 enacted funding level.

Federal officials estimated in February 1998 that the ambitious agenda presented in the Plan would require 25 years for full implementation. EPA and USDA officials hold the view that the Plan will be implemented, even though appropriations have been less than requested. A lack of new resources will mean a 50- or 100-year implementation schedule, they now say. In February 1999, on the first anniversary of release of the Action Plan, the Administration issued a report describing accomplishments to date. Many of the accomplishments, however, are only first steps in processes that will be lengthy, especially in terms of impacting water quality improvements. Since many of the specific items in the Plan and half of the budgetary resources are focusing on partnerships with states, localities, and individuals, accomplishments depend greatly on actions taken by multiple stakeholders. Changes in water quality conditions may not be apparent for many years.

EPA Activities. Of the 100-plus actions in the Plan, many involve core clean water programs for which EPA is primarily responsible.

• A significant aspect of the Plan is a focus on watersheds as the basis of water quality problem identification and decision making. In June 1998, EPA released a Unified Watershed Assessment Framework to assist states, tribes and others with the process called for in the Plan of identifying watersheds that do not meet clean water and other natural resource goals and where prevention action is needed to sustain water quality and aquatic resources. In response, states submitted watershed assessment reports by Oct. 1, 1998. Funding increases provided since FY1999 will focus on priority waters identified by these assessments.

• State water quality reports indicate that over-enrichment of waters by nutrients (nitrogen and phosphorus) is the biggest overall source of impairment of the nation's waters. EPA is to publish numeric water quality criteria (scientific information concerning harmful levels of a pollutant) for nutrients by the year 2000. In June 1998, EPA released a national strategy for developing criteria and standards for nutrients, which states will use to develop nutrient provisions of state water quality standards.

Joint or Other Federal Agency Activities. Many actions in the Plan involve other federal agencies, either alone or jointly with EPA. A key purpose of the Plan is to coordinate the several federal agencies and their state partners that have water quality program responsibilities.

• Among the areas that involve agriculture, a key element of the Plan, minimizing public health and environmental impacts of runoff from animal feeding operations (AFOs) into rivers, lakes, and estuaries, was addressed when EPA and USDA issued a national AFO strategy in March 1999. The strategy itself is not a new regulation or substitute for existing regulations, nor does it impose binding requirements on federal agencies, states, tribes, localities, or the regulated community. It presents an overall approach and timetable for curbing pollution from livestock operations. However, many of the details — and, hence, many of the specific impacts on operators, states, and others — will only become clear with the issuance of guidance and regulatory changes in the coming months. (See discussion below.)

• The Conservation Reserve Enhancement Program (CREP) is a state-federal conservation partnership program targeted to address specific state and nationally significant water quality, soil erosion, and wildlife habitat issues related to agricultural use. Based on the most recent available information, as of June 1999, USDA has approved programs in eight states (Maryland, Minnesota, Washington, Oregon, Illinois, Delaware, New York, and North Carolina) and is considering four other proposals.

• As part of the Plan, lands and facilities owned, managed, or controlled by federal agencies are to be national models for control of polluted runoff and effective watershed planning. Thus far, to reduce runoff and better manage these lands and facilities, federal land managers have restored over 3,200 miles of stream corridors, 68,000 acres of wetlands, 38,000 acres of forests, and decommissioned 2,099 miles of forest roads and restored 1,400 additional miles.

• Fifteen agencies, led by USDA, collaborated on a manual for use in restoring the natural ecology of streams and rivers. Twelve watersheds in need of restoration will be chosen jointly by these agencies to demonstrate these techniques.

Litigation Challenging the Clean Water Action Plan. In June 1999, the Wyoming Association of Conservation Districts, joined by more than 60 groups representing state conservation districts and agriculture industry, challenged the Clean Water Action Plan in a lawsuit filed in U.S. District Court in Colorado.8 The lawsuit alleges that the Plan violates three federal laws: the National Environmental Policy Act (NEPA), by not requiring an environmental impact statement on the plan's cumulative impacts; the Administrative Procedure Act (APA), by not providing enough opportunity for public comment; and the Clean Water Act, by trying to regulate nonpoint source water pollution. The plaintiffs seek to block implementation of the CWAP pending full compliance with the three laws.

The litigation asserts that, because the CWAP is a "major federal action," it should have been subject to the public notice and comment and intergovernmental coordination processes under the APA and NEPA. In response, EPA has argued that the Plan itself is a strategy for actions that the government plans to take and, thus, does not fall under federal public input requirements. Any EPA regulatory actions resulting from the Plan will be subject to such requirements, EPA has said.

Senate Oversight Hearing on the CWAP. On May 13, 1999, the Senate Environment and Public Works Committee held an oversight hearing on the CWAP, the first such congressional involvement outside the appropriations process.9 The Committee heard from the Administration and public witnesses. EPA and USDA witnesses defended the Plan as "a comprehensive blueprint for restoring and protecting the Nation's water resources." Environmental group witnesses endorsed the Plan because, in their view, it focuses significant federal resources on polluted surface runoff. State witnesses were divided. One from Maryland supported the Plan, saying it reinforces strong ongoing water quality programs in that state. A witness from Wyoming, which has been in dispute with EPA over the state's water quality program, said the Plan has disrupted and interfered with ongoing state activities.

Agriculture industry witnesses challenged the scientific basis of the Plan, especially EPA's contentions that nonpoint sources generally and agriculture specifically are the major sources of water quality impairment. These groups argue that, because existing water quality data are limited and are based on partial state assessments of surface waters, the premise of the Plan is flawed. Better data are needed before undertaking such a broad initiative, they said. Others said that requirements and deadlines of actions in the Plan are unrealistic, particularly the animal feeding operations strategy (see Part 2).

Part 2: Animal Feeding Operations and the Clean Water Act10

As noted previously in this report, most agricultural activities are considered to be nonpoint sources and thus are exempt from CWA regulatory programs; this includes most animal feeding operations (AFOs, or feedlots), where livestock are confined, reared, and fed. However, large confined animal feeding operations (CAFOs) are specifically defined in the CWA as "point sources" rather than "nonpoint sources." CAFOs are treated in a similar manner to other industrial sources of pollution, such as factories and municipal sewage treatment plants, and are subject to the Act's prohibition against discharging pollutants into waters of the United States without a permit. In 1974 and 1976, EPA issued regulations defining the term CAFO for purposes of permit requirements (40 CFR 122.23) and effluent limitation guidelines specifying limits on pollutant discharges from feedlots (40 CFR Part 412). Discharge permits, issued by EPA or qualified states (43 states have been delegated this responsibility), implement the Part 412 requirements for individual facilities. Under the existing permit rules, a CAFO must meet all of the following criteria to be subject to EPA rules:

• Animals are stabled or confined and fed for 45 days or more in a 12- month period;
• Vegetation is not sustained during the normal growing season on any portion of the lot or facility (i.e., animals are not maintained in a pasture or on rangeland);
• Feedlots hold more than 1,000 animal units11 (or between 300 and 1,000 animal units if pollutants are discharged from a manmade conveyance or are discharged directly into waters passing over, across, or through the facility). Also, animal feeding operations that include fewer than 300 animal units may be designated as CAFOs if they pose a threat to water quality or use. Based on the USDA 1992 Census of Agriculture, EPA estimates that 6,600 feeding operations qualify as CAFOs, considering the number of animal units alone — only 1.5% of the 450,000 operations nationwide that confine or concentrate animals.12

EPA's effluent limitation regulations apply to operations that raise beef and dairy cattle, poultry, swine, sheep, and horses. The rules essentially prohibit discharge of wastewater from CAFOs into navigable waters, except when caused by the worst 24- hour storm that would occur in a 25-year period. These regulations do not specifically address discharges that may occur from wastewaters or solid manure mixtures which are applied to soil, nor do they address odor control or groundwater impacts from animal agriculture operations. These topics, if regulated at all, are subject to varied state and local authority, not federal law or regulation.

In addition to the CWA, the Coastal Zone Act Reauthorization Amendments of 1990 (CZARA) imposed waste management requirements on most livestock producers in the coastal zone of the 32 states and territories that participate in the Coastal Zone Management Act. CZARA is the first federal program to require specific measures to address agricultural erosion and runoff and other major sources of coastal nonpoint pollution. Its requirements are implemented by states through plans that they develop under CZARA. Federal CZARA guidance for agricultural sources specifies minimum management measures including retention ponds, solids separation basins, and vegetative practices such as filter strips between production facilities and nearby surface waters. CAFOs with as few as 50 animal units may be subject to these and other requirements. Federal agencies have conditionally approved CZARA programs in 29 coastal states and territories (3 others have been submitted for federal approval), and livestock and poultry producers there will begin to be regulated by state requirements in the near future. Neither the law nor the implementing regulations specifies a timeline for implementation.

Problems with CAFO Regulation. A number of problems with the current CAFO regulatory system under the CWA have limited its effectiveness in preventing environmental problems from livestock production.

• Fewer than 30% of the CAFOs with over 1,000 animal units had or have CWA permits today (i.e., about 2,000 out of 6,600). One explanation is the historic emphasis by federal and state regulators on other large industrial and municipal dischargers over agricultural sources, since most of agriculture is not subject to the Act. EPA estimated that only 760 permits were current at the end of 1995.13 Another factor is disputes between regulators and agricultural operators over whether particular facilities meet the regulatory threshold, such as whether the regulations apply to feedlots that claim to have no discharge.

• Some sources went unregulated because the EPA rules, now more than 20 years old, do not reflect more recent changes in animal waste management technology. In particular, EPA defines feeding operations with 100,000 laying hens or broilers that use continuous flow watering systems and facilities with 30,000 laying hens or broilers that use liquid manure systems as CAFOs. However, the poultry industry has moved away from such wet systems since the 1970s. Many broiler producers now use dry litter waste systems where water is not applied and there is no discharge; they have argued that they are not subject to the rules. Producers of layers generally still have liquid waste systems.

• Federal regulations and guidelines contain no requirement for nutrient or manure management plans.

• CAFO inspections by federal and state regulators and compliance enforcement activities have been limited, often occurring only after citizen complaints or accidental releases following large rainfall events or equipment or facility failures.

Initiative under the CWAP: The National AFO Strategy

EPA has not lacked authority to address water quality problems associated with animal feeding operations, but doing so has not been a priority.14 For several years, Agency officials discussed the need to revise the CAFO regulations, and in 1997, plans were announced for two initiatives — one dealing with CWA enforcement against livestock producers, and one dealing comprehensively with all sources of nonpoint source pollution, including farm operations. However, neither included implementation details.

Several events combined to raise the priority of these topics. One was increasing attention to pollution incidents resulting from or believed to be associated with animal waste spills. Another was the growing number of lawsuits filed by environmentalists against states and EPA (involving nearly 2 dozen states), seeking to compel action against remaining sources of water pollution, including agriculture, under the Clean Water Act's TMDL program (see Part 3 of this report). A third came in February 1998 with the Administration's release of the Clean Water Action Plan.

The National AFO Strategy. In March 1999, EPA and USDA jointly issued a major program to implement the Clean Water Action Plan: a unified national strategy for animal feeding operations to minimize the water quality and public health impacts of AFOs.15

The strategy consists of multiple elements and is based on a national performance expectation that all AFO owners and operators—regardless of the size of their operations—will develop and implement by 2009 site-specific Comprehensive Nutrient Management Plans (CNMPs) intended to protect water quality and public health. Having all AFO owners and operators undertake comprehensive nutrient management planning will accomplish the goal of minimizing water pollution from confinement facilities and land application of manure, according to the strategy. With the exception of large AFO operations which are considered to be CAFOs and thus are subject to CWA requirements (about 5% of total AFOs nationwide), the agencies expect that the vast majority of CNMPs will be developed and implemented voluntarily. In general terms, a CNMP will identify actions or priorities to meet clearly identified nutrient management goals at an agricultural operation and typically will address manure handling and storage, land application of manure, land management (such as tillage, crop residue management, and other conservation practices), recordkeeping, and other utilization options (for example, when manure is sold to other farmers). Plans will be developed by qualified specialists. NRCS estimates that at least 330,000 AFOs need to develop CNMPs or revise existing nutrient management plans to meet the performance expectation of the strategy. The strategy recognizes that technical and financial assistance will be needed both to develop and implement CNMPs, and it discusses additional resources in the Administration's FY2000 budget to be directed at such assistance.16

The strategy views regulatory programs as complementary to voluntary approaches that will apply to 95% of the total 450,000 AFOs in the nation. The strategy says that, under existing CWA authority, the discharge permit program in the CWA (called the NPDES program) will be used to address the relatively small number of AFOs (5% of the total) that cause measurable water quality or public health problems or that pose a significant risk to water quality or public health. It identifies the following priorities for permits and enforcement:

• Large facilities (those with greater than 1,000 animal units) which produce quantities of manure that can be a risk to water quality and public health. These already are considered to be CAFOs and therefore are "point sources" already subject to NDPES permit requirements.

• Some facilities with fewer than 1,000 animal units which can pose a risk of water pollution or public health problems, because the facilities have a manmade conveyance to discharge manure and wastewaters into streams.

• Other individual facilities or collections of facilities with fewer than 1,000 animal units that, based on water quality monitoring, are contributing significantly to impairment of a waterbody or watershed; such facilities will be designated as CAFOs and will be a priority for permit issuance and enforcement.

EPA expects that the total number of CAFOs meeting these three priorities for NPDES permits will be 15,000 - 20,000 facilities. These facilities will be required to develop and implement CNMPs, and their permits will include specific performance measures, monitoring, and reporting. Under the strategy, states and EPA should identify the universe of CAFOs and inspect all CAFOs in high-priority areas by 2001 and all other CAFOs by 2003. Permitting will occur in two phases. First, by 2005, EPA and authorized states will issue NPDES permits under existing regulations to priority facilities. EPA expects that this will occur mainly through general permits (either issued on a statewide basis or for specific geographic areas, such as watersheds), but that individual permits will be issued to exceptionally large operations, new operations or those undergoing significant expansion, operations with historical compliance problems, or operations with significant environmental concerns. NPDES permits are issued for no longer than 5 years and must be renewed thereafter.

EPA also will initiate revisions to the existing CAFO permitting regulations and effluent guidelines, using input from USDA, states, tribes, other federal agencies, and the public. EPA currently is under a court-ordered schedule, recently modified, to propose revised effluent guidelines for poultry, swine, and beef and dairy cattle by December 2000 and to issue final revised guidelines for all of these sectors by December 2002. In the second phase of NPDES permitting, after 2005 (following expiration of permits issued between 2000 and 2005), EPA and states will reissue permits from the first round and will incorporate any new requirements that could result from regulatory revisions completed in the interim.

The AFO strategy also addresses corporate integrators, owners of livestock that contract out to farmers to raise the animals or poultry. It recommends a co- permitting system, in which permits would cover not just the grower or farmer, but also the corporate owner. In such a system, liability for handling the animal waste and for any environmental violations would be shared by the farmer and any corporate owner that exercises substantial operational control over a CAFO. Environmental groups in particular have urged such co-permitting, arguing that it could go a long way to improving waste management by involving integrators in ensuring that their contract growers are environmentally responsible. While some states already recognize that corporate owners share responsibility with farmers, industry groups have generally opposed this as a national requirement. In their view, it is inappropriate to hold the corporate entity responsible for an environmental violation when that entity does not own the farm, its buildings, the land, or the waste produced by the animals.

The strategy allows states that can show they meet the requirements of the NPDES program to be recognized by EPA as functionally equivalent. This part of the strategy recognizes that some states are implementing permitting programs under state law that meet or exceed the requirements of the NPDES program

Guidance on Permits. Both USDA and EPA have issued technical guidance documents intended to assist issuance of permits and development of comprehensive nutrient management plans. In May 1999, the Natural Resources Conservation Service of USDA released the Policy for Nutrient Management17 and the revision to the conservation practice standards for Nutrient Management.18 NRCS' policy directive and supporting technical guide establish policy for nutrient management, set forth guidance to NRCS personnel who provide nutrient management technical assistance, and guidance for the revision of the NRCS nutrient management conservation practice standard. These two documents will provide the framework for all nutrient management plans developed by NRCS for the agricultural community, which will be tailored by state conservationists within a two-year period.

In August 1999, EPA issued draft guidance and a model permit to assist the states in meeting the goal of accelerating issuance of NPDES permits for large CAFOs by January 2000.19 The guidance provides information on:

• Which facilities need to apply for an NPDES permit,
• The key elements of an NPDES permit for CAFOs,
• Components of a site-specific CNMP to be included in NPDES permits for CAFOs (six items are specified: manure and wastewater handling and storage; land application; site management; feed management; record keeping; and other utilization options, such as centralized treatment or composting),
• The relationship between NPDES permits and comprehensive nutrient management plans,
• The types of NPDES permits that may be issued to CAFOs (general permits issued on a statewide or watershed basis and individual permits, where appropriate),
• Public notice requirements,
• Co-permitting of corporate entities that exercise substantial operational control over CAFOs,
• Land application of manure and wastewater (including addressing land application activities under the control of the CAFO operator and activities not under the control of the CAFO operator), and
• Monitoring and reporting requirements.

EPA expects that CAFOs will be required to develop and implement CNMPs that are consistent with EPA's permit guidance, other state requirements, and NRCS technical standards.

Response to the Strategy. The strongest reactions to the national strategy have come from farmers and farm groups. A number of them expressed a fear that a national AFO strategy will enable EPA, through clean water rules, to control economic activity and land-use decisions of farmers.20 Most would prefer that any animal waste program focus on voluntary approaches that encourage operators to utilize good environmental practices, with regulation and enforcement limited to only known problems of poor resource management.

From the states' perspective, many have questioned the need for a national program. For states, a key concern has been that many already have difficulty providing resources for feedlot inspections and enforcement; thus, they are wary of new regulatory requirements that could impose additional resource burdens. States also say that they need flexibility to coordinate and prioritize implementation of the federal strategy with other equally important state programs. EPA's concern is to balance the states' desire for flexibility with the federal agency's desire to have state programs be accountable and provide an opportunity, if needed, for federal enforceability.

Environmentalists say that the proposed timeline to implement the strategy (7 years to issue permits for all CAFOs) is too slow. Many are critical that EPA failed to act on this problem sooner. Environmentalists often are skeptical of voluntary approaches to managing animal waste, particularly where there is no requirement for water quality monitoring or reporting, and little or no public involvement in siting, permitting, or similar decision making.21

Appropriations Requirement. In the conference report on legislation providing EPA'sFY2000 appropriation (P.L. 106-74, H.Rept. 106-379), conferees directed EPA, in conjunction with USDA, to conduct a cost and capability assessment of the AFO strategy and directed that the report should be submitted to Congress by May 15, 2001.22

Part 3: Related Water Quality Initiative: TMDLs23

The Clean Water Act (CWA) contains a number of complex elements of overall water quality management. Foremost is the requirement in section 303 that states establish ambient water quality standards for surface waterbodies These consist of the designated use or uses (e.g., recreational, public water supply, or industrial water supply) and the water quality criteria which are necessary to protect the use or uses. Through permits, states or the EPA impose wastewater discharge limits on individual industrial and municipal facilities to ensure that water quality standards are attained. However, Congress recognized in the Act that, in many cases, pollution controls implemented by industry and cities would be inadequate, due to pollutant contributions from other unregulated sources or insufficient regulation of cities and industrial facilities.

Under section 303(d) of the Act, states must identify surface waters (lakes, rivers, and streams) for which wastewater discharge limits are not stringent enough to achieve established water quality standards, after implementation of technology- based controls by industrial and municipal dischargers. For each of these waterbodies, a state is required to set a total maximum daily load (TMDL) of pollutants at a level that ensures that applicable water quality standards can be attained and maintained. If a state fails to do the TMDL analysis, EPA is required to develop a priority list for the state and make its own TMDL determination.

Section 303(d) provides the analytical and regulatory means for using water quality standards to upgrade waters that remain polluted after the application of technology-based requirements. A TMDL includes a quantitative assessment of water quality problems, pollution sources, and pollutant reductions needed to restore and protect a river, stream, or lake. TMDLs may address all pollution sources, including point sources such as municipal sewage or industrial plant discharges; nonpoint sources, such as runoff from roads, farm fields, and forests; and naturally occurring sources, such as runoff from undisturbed lands. The complexity and cost of developing a TMDL will vary, depending on the geographic area, number and complexity of pollutants, and distribution of sources.

The TMDL program first and foremost affects states, territories, and Indian tribes authorized to administer the Clean Water Act. It provides requirements imposed on government entities to adopt and implement measures needed to attain and maintain water quality standards. It is up to states, territories, and tribes to identify waters that do not meet this goal and adopt policies and measures applicable to individual sources, as appropriate to attain water quality standards. In the early years of implementing clean water programs, states and localities were largely focused on water pollution problems associated with point sources (industries and municipalities). The TMDL requirements of the law force an examination of all sources contributing to water quality problems so that EPA, states, and the public are looking beyond traditional point source controls to assess all measures needed to attain water quality standards. However reluctant some may be to take this broader view, it is occurring as a result of litigation which has forced TMDL action by states and EPA and more recently by proposed changes to the TMDL regulations.

The TMDL itself does not establish new regulatory controls on sources of pollution. However, when TMDLs are established, municipal and industrial wastewater treatment plants may be required to install new pollution control technology. States and EPA enforce the TMDLs through revisions to existing permits which include the pollutant limits and a schedule for compliance. For waters impaired by nonpoint source runoff, including runoff from agriculture, because there are no federal controls over these sources under the Clean Water Act, the primary implementation measures are state-run nonpoint source management programs coupled with state, local, and federal land management programs and authorities. For example, farmers and ranchers may be asked to use alternative methods in their operations to prevent fertilizers and pesticides from reaching rivers. Cities may be required to control and treat runoff from their streets.

Implementation

TMDLs are one element of water quality management programs conducted by states to implement the CWA. Other activities include standard setting, monitoring, issuing permits, and enforcement. Integrating them with the TMDL program may well be difficult because of factors such as different program purposes, schedules, and even different definitions for key terms. Most states have lacked the resources to do TMDL analyses, which involve complex assessment of all identified point and nonpoint sources to ascribe and quantify environmental effects for particular discharge sources. Baseline water quality monitoring data for the analyses (to identify impaired waters and pollution sources) is limited. EPA has both been reluctant to intervene in the states and has also lacked resources to do so itself. Thus, there has been little implementation of the provision which was enacted in 1972. Until recently, EPA did little even to prod states to identify waters that remain pollution-impaired, much less undertake analyses to develop TMDLs, as required by the Act. Only in 1992 did EPA issue regulations requiring states every 2 years to list waters that do not attain water quality standards and establish TMDLs to restore water quality. Under this schedule, states submitted their most recent 303(d) lists in April 1998. From these submissions by all of the states, EPA estimates that approximately 20,000 waterways nationwide are impaired and require TMDLs.

Responding to the failure of both states and EPA to meet these requirements, however, environmental groups have filed nearly 30 lawsuits in the last few years. The first such lawsuit was filed in 1986; the bulk have been filed since 1992. Environmentalists see implementation of section 303(d) as important both to achieving the overall goals and objectives of the Act and to pressuring EPA and states to address nonpoint and other sources which are responsible for many water quality impairments nationwide but have not been regulated up to this point. Courts in a number of states have ordered or approved settlements for expeditious development of TMDLs.24

Because of the lawsuits and existing requirements of the law, in August 1997, EPA issued a policy which for the first time called on states to develop long-term schedules for implementing TMDLs. Under that policy, EPA directed states to establish TMDLs in order to meet water quality standards within 8 to 13 years.25 One observer commented on this time frame, "Whether even this pace can be maintained, and whether it will produce load allocations and plans of sufficient quality to be effective, are legitimate and difficult questions."26 Following listing of impaired waters, pursuant to section 303(d), development of TMDLs is being initiated at an increasing pace in some states, but most TMDLs remain to be completed. As of early 2000, EPA estimates that about 1,000 TMDLs have been developed. Evidence of cleanup of waterways will take much longer to identify.

In August 1999, EPA proposed revisions to the TMDL regulations to clarify and strengthen the program.27 The proposal sets forth criteria for states, territories, and authorized Indian tribes to identify impaired waters and establish all TMDLs within 15 years. The August proposal incorporates many of the recommendations of a Federal Advisory Committee Act (FACA) group which the Agency convened in 1996 to help develop a consistent national program.28 At least two aspects of the proposal are controversial: (1) an explicit requirement that waterbodies impaired wholly or in part by nonpoint sources of pollutants be identified and that TMDLs be developed for such waters, and (2) a new requirement for an implementation plan as part of a TMDL. Further, explicit inclusion of nonpoint sources of pollution and potential impacts on agriculture and silviculture sources have become highly contentious.29 Vigorous challenge to all parts of the proposal has come from states and various industry groups, arguing that EPA's proposed expansion of the current TMDL program is not clearly authorized in the law. EPA believes that it does have ample authority for the proposed changes.

Estimating when individual waters will actually be cleaned up, following development of a TMDL, is difficult. The amount of time that is required for a waterbody to reach water quality standards can vary considerably, depending upon the complexity of the pollutants, the uses of the land surrounding the waterbody, and the commitment of the community or upstream dischargers to reducing pollutants. Neither EPA's current regulations nor the August 1999 proposal contains cleanup deadlines or targets, but the proposal does call for states to prepare implementation plans and schedules.

Because of wide interest in the proposal, EPA extended the public comment period on the TMDL rule by 90 days, to Jan. 22,2000, for a total comment period of 150 days. The Agency received an estimated 30,000 comments. EPA hopes to issue final regulations in mid-2000.

The TMDL issue has been extremely controversial. States are concerned that they lack the resources to meet tight deadlines to develop and implement TMDLs. States do not necessarily argue against implementing the TMDL provisions of the Act; for most, it is a resource capacity question. Further, states say that TMDLs are just one of many components of a state's water quality management program and that they should not necessarily be prioritized over other management elements. Environmentalists are critical that states appear unwilling to commit to aggressive implementation of a program that has existed in the law for 27 years. Industry groups are greatly concerned about impacts of new pollution control requirements. Municipal and industrial point source groups urge states and EPA to ensure that TMDL requirements do not fall disproportionately on their discharges, while possibly failing to address nonpoint source contributions to impaired waters. On the other hand, farm groups and others associated with nonpoint discharges question EPA's authority to include nonpoint source pollution in the TMDL program.

Elements of the August 1999 TMDL Proposal

The key changes to the existing regulatory requirements proposed in August 1999 include: a new requirement for a more comprehensive list of impaired and threatened waterbodies; a new requirement that states, territories and authorized Indian tribes establish and submit schedules for establishing TMDLs; a new requirement that the listing methodologies be more specific, subject to public review, and submitted to EPA; clarification that TMDLs include nine specific elements; a new requirement for an implementation plan as a required element of a TMDL; and new public participation requirements.

The Listing Process. The proposed rule requires states, territories, and tribes to list all waterbodies that are impaired or threatened by pollution or pollutants, regardless of whether the waterbody is expected to attain water quality standards following the application of technology-based controls, more stringent effluent limitations, or other required pollution controls. The proposal requires that lists consist of four parts.

• Part 1. Waterbodies impaired or threatened by one or more pollutants or unknown cause. A TMDL is required for waterbodies on this part of the list.
• Part 2. Waterbodies impaired or threatened by pollution but not
impaired by one or more pollutants (discussed below). A TMDL is not required for waterbodies on this part of the list.
• Part 3. Waterbodies for which EPA has approved or established a TMDL and water quality standards have not yet been attained.
• Part 4. Waterbodies that are impaired, for which implementation of technology-based controls is expected to result in attainment of water quality standards by the next listing cycle.

As under the current regulations, EPA has 30 days to approve the list submitted by a state or add waters to it, if it determines the state's list is not complete.

The statute requires that a priority ranking be assigned to each listed waterbody. EPA's August proposal includes a new requirement that waters on Part I of the list be assigned either a "high," "medium," or "low" priority. For example, the proposal states that all impaired and threatened waterbodies for which the impairment contributes to a violation of a drinking water standard in waters where the designated use is public drinking water supply or in which a threatened or endangered species is present, should be assigned a high-priority ranking. The proposal identifies factors that states, territories, and tribes may consider (such as the value of particular waterbodies or the recreational, economic and aesthetic importance of particular waterbodies), but does not mandate specific priorities. However, the methodology that states use will be subject to EPA review (but is not subject to EPA approval). One significance of the proposed tiered ranking is that EPA recommends (but does not mandate) that states adopt a goal of establishing TMDLs for high-priority waters within 5 years of listing.

Existing statutory and regulatory requirements do not call for states to develop or submit to EPA a schedule for developing TMDLs for all listed waterbodies. Current regulations simply require that states identify, within their priority rankings, those waterbodies for which TMDLs will be targeted for development over the next two years. In the August proposal, EPA affirmed the policy adopted in August 1997 that states be required to develop comprehensive schedules for establishing TMDLs for all waterbodies including on Part I of the list. It also requires that such schedules be as expeditious as practicable, provide for a reasonable pace of establishing TMDLs over the list of the schedule and not extend beyond 15 years. Setting an overall time requirement, EPA believes, will encourage timely, concerted action. Under existing rules, 303(d) lists are to be submitted to EPA every two years, on April I of even- numbered years.30 Under the August proposal, EPA proposes to shift the listing deadline to October I and also requests public comment on retaining the two-year listing interval or adopting a four-year or five-year listing cycle interval. The Agency did not express a preference for any of these options.

Pollution vs. Pollutants; Point and Nonpoint Sources. Section 303(d) distinguishes between waterbodies impaired by pollution versus those affected by pollutants and requires states to establish TMDLs for pollutants causing nonattainment of applicable water quality standards.31 Because EPA's guidance on existing regulations was incomplete, some states used the broader definition of pollution, while others used the narrower definition of pollutant to identify and list impaired waterbodies. The proposed rule clarifies that the required list must include waterbodies impaired or threatened by point sources only, a combination of point and nonpoint sources, and nonpoint sources only, including atmospheric deposition. The proposal also clarifies that waterbodies must be listed regardless of whether the impairment or threat is caused by individual pollutants, multiple pollutants or pollution from any source, including atmospheric deposition.

Section 303(d) requires states, territories and tribes to account for the severity of a waterbody's "pollution." EPA interprets this to mean that a waterbody can be listed if it is impaired or threatened by either pollution or a pollutant. But EPA also interprets the statutory language to require that TMDLs only be established where a waterbody is impaired or threatened by a "pollutant." Section 303(d) requires that TMDLs be established where a waterbody is impaired or threatened by a pollutant.

In the August 1999 proposal, EPA goes to some length (64 Federal Register 46020-46021 ) to explain its view that section 303(d) provides ample authority to list waterbodies impaired by nonpoint sources of pollution and to establish TMDLs for waterbodies impaired by nonpoint sources of pollutants. In EPA's view, this is primarily because there is no express exclusion of nonpoint source-impaired waterbodies from the TMDL requirements of section 303(d) and because the definition of "pollutant" in the Act is not limited to point sources. Some interest groups disagree with EPA's views and interpretations in this area (industry and the agriculture community), and inclusion of nonpoint sources in the TMDL program remains a controversial topic.32 If EPA's interpretation is ultimately rejected, impacts of the TMDL program on agriculture would be considerably less, and fewer agricultural sources would be affected by TMDL requirements.

EPA states in the August proposal that under the revised regulations, "TMDLs [will] continue to provide for tradeoffs between alternative point and nonpoint source control options so that cost effectiveness, technical effectiveness, and the social and economic benefits of different allocations can be considered by decision-makers."

EPA believes that listing both impaired and threatened waterbodies is consistent with one of the CWA's fundamental goals: to protect water quality from deterioration. Using a comprehensive listing process, EPA believes, states, territories and tribes can become aware of the threatened status of a particular waterbody and then initiate actions to prevent the waterbody from becoming impaired. EPA defines "threatened waterbodies" as those likely to exceed water quality standards within the next two years when the determination that a waterbody is threatened is based on data that show a significant declining trend or knowledge of specific changes that would adversely impact water quality.

Data and Documentation. In the August 1999 proposal, EPA says that well- designed monitoring programs are vital elements in states', territories', and tribes' efforts to characterize, identify, and ensure the protection and restoration of impaired and threatened waterbodies. But EPA also recognizes that because monitoring is expensive and time-consuming, it is generally the case that only a small percentage of each state's, territory's, and tribe's waterbodies are actually being monitored.

The August proposal retains the requirement in existing regulations that states, territories, and tribes assemble and consider all existing and readily available data and information to identify impairments and threats to impairment and develop their lists. EPA believes it is appropriate to use both monitored data (direct measures of water quality, including sediment, bioassessments and some fish tissue analyses) and evaluated data (data and/or information providing an indirect appraisal of water quality through such sources as information on historical adjacent land uses, aquatic and riparian health and habitat, location of sources, results from predictive modeling using input variables and some surveys of fish and wildlife). EPA says that the best available data and information for each waterbody being considered for listing should be used, and, while it is preferable to base listing decisions on monitored data, EPA recognizes the reality of needing to use evaluated information. One reason for requiring states, territories and tribes to document their methods for determining impairment is to identify to the public and EPA what methodology has been used in developing section 303(d) lists.

Minimum Elements of a TMDL. The existing TMDL regulations require states, territories and authorized tribes to establish TMDLs at levels necessary to meet water quality standards with seasonal variations and a margin of safety. EPA's proposed revisions to these regulations expand on those minimal requirements and identify as their ultimate goal: to implement allocations that will result in the attainment and maintenance of water quality standards. To that end, EPA proposes that an approvable TMDL comprise nine minimum elements.

• Waterbody name and geographic location.
• Identification of the allowable pollutant load for the waterbody.
• Identification of the amount or degree by which the current pollutant load deviates from the allowable pollutant load.
• Identification of the source categories, subcategories, or individual sources for which the wasteload allocations and load allocations are being established.
• Waste load allocations for pollutants from point sources and load allocations for pollutants from nonpoint sources, including atmospheric deposition and natural background.
• Margin of safety.
• Seasonal variations.
• Allowance for reasonably foreseeable future loadings.
• Implementation Plan. EPA proposes eight minimum elements of an implementation plan.
    1. A description of the required control actions and/or management measures. For point sources, a list of NPDES permits and a schedule for revising the permits to be consistent with the TMDL is required. For nonpoint sources, a description of best management practices or other management measures is required.
    2. Timeline describing when activities necessary to implement the TMDL will occur.
    3. Reasonable assurance that the implementation activities will occur. For nonpoint sources, reasonable assurance means that nonpoint source controls are specific to the pollutant of concern, implemented according to an expeditious schedule and supported by reliable delivery mechanisms and adequate funding.
    4. Description of the legal authorities under which implementation will occur.
    5. An estimate of the time required to attain water quality standards.
    6. A monitoring or modeling plan to determine effectiveness of the actions.
    7. Milestones for attaining water quality standards.
    8. A description of when TMDLs must be revised.

A statement describing how the TMDL considered endangered or threatened species also is required.

The proposal anticipates the need to allow for a schedule adjustment and extension of effective dates to coordinate with ongoing TMDL processes, especially in states and locations where EPA has entered into consent decrees and settlement agreements that provide different schedules for establishing TMDLs and different numbers of impaired waterbodies. EPA also recognizes that the changes proposed in August to the existing TMDL requirements may increase the time it takes to establish a TMDL-particularly the requirement to include an implementation plan. Thus, EPA requested public comment on the ability of states to perform their obligations as contemplated under the various TMDL consent decrees and settlement agreements. In the final regulations, EPA might further phase in some of the requirements (such as the implementation plan) so that states' near-term consent decree schedules can be met, or EPA might on a case-by-case basis seek to modify court-ordered TMDL schedules.

EPA Authority. EPA proposes to establish in regulations its ability to establish TMDLs if the state so requests or if EPA determines that a state, territory, or tribe is not likely to establish TMDLs consistent with their schedules, or if EPA determines that it should establish TMDLs for interstate or boundary waterbodies.

Beyond establishing a TMDL, EPA argues that it also has authority to take actions necessary to implement a TMDL. If EPA disapproves a TMDL submitted by a state, territory or authorized tribe, EPA may take a number of actions to provide reasonable assurance that implementation will occur to the same extent that a state would provide such assurance. In the case of discharges from point sources, if EPA actions become necessary, a combination of existing and proposed NPDES permit authorities may be used. For some impaired waters, attainment of water quality standards may require that pollutants from nonpoint sources be reduced. EPA believes that it has diverse authority to implement controls over nonpoint sources in the event that EPA were to disapprove a TMDL submitted by a state and to develop a TMDL for the impaired water. For example, EPA has authority to direct the way that states, territories, and tribes use funding provided under section 319 of the CWA to implement nonpoint pollution controls.

In a concurrent regulatory proposal, EPA outlined related changes to existing NPDES and water quality standards program regulations.33 In it, EPA proposes three key changes affecting discharges to impaired waters, intended to be complementary to the revised TMDL rules.

• A new requirement that large new or significantly expanding NPDES dischargers (including CAFOs) obtain an offset of one-and-one-half times their proposed discharge before beginning to discharge into impaired waters that do not yet have a TMDL plan.

• Proposes to give EPA the authority to object to, and ultimately reissue, expired and administratively-continued NPDES permits for discharges to impaired waterbodies in NPDES-authorized states where reissuance is necessary to ensure reasonable further progress towards meeting water quality standards while a TMDL is being established or where necessary to ensure that a completed TMDL is adequately implemented.

• Proposes to give EPA the discretionary authority to designate certain animal feeding operations, aquatic animal production facilities, and silviculture activities as point sources, thus requiring NPDES permits, where it is necessary to provide reasonable assurance that these sources will meet their allocated amount of reductions when EPA establishes a TMDL.34 EPA would consider using this authority in situations where EPA disapproves a state's TMDL implementation plan, where EPA determines that the AFOs in the implementation plan are causing or contributing to the impairment, and where the activity involves a point source discharge.. Normally, this point source designation authority resides with the permitting authority (state or EPA).

In the proposal, EPA states that it anticipates using these latter authorities only in limited circumstances. For example, concerning the proposal to allow EPA to designate certain unpermitted facilities as point sources, EPA said, "The Agency's expectations are that States with approved NPDES programs will be submitting approvable TMDLs with load and waste load allocations that will reflect achievement of the TMDLs, and that EPA thus will need to exercise its designation authority infrequently." (64 Federal Register 46083) Nevertheless, in comments to EPA and elsewhere, forestry and agriculture groups have strongly opposed the parts of the proposal that could result in some currently unregulated sources being brought under the NPDES program. States and others have raised concerns about the NPDES and water quality standards proposal, with some saying that there is no authority in the CWA for EPA to require offsets. Others said that an offset requirement would pose excessive burdens on large industrial and municipal sources, since obtaining offsets from nonpoint sources, which are not subject to the NPDES program, is likely to be very difficult.

Regulatory Requirements and Costs. In the August proposal, EPA states that the proposed rule will not have a significant economic impact on a substantial number of small entities, because the rule establishes no requirements applicable to small entities. The impact, if any, on small entities of any TMDLs or lists that might be established or approved by EPA, states, territories and tribes is indirect and highly speculative, according to EPA. Therefore, EPA did not prepare an initial regulatory flexibility analysis.

EPA also states that it has begun to gather information about the costs and benefits that can be expected to result from implementation of the TMDL program and EPA hopes to be able to provide results from this work prior to final promulgation of the TMDL rule.

Further, EPA determined that the proposed rule does not contain a federal mandate that may result in expenditures of $100 million or more for state, local, and tribal governments, in the aggregate, or the private sector in any one year. Thus, EPA has not prepared a cost-benefit analysis as required by Title II of the Unfunded Mandates Reform Act of 1995. EPA believes that the costs of implementing the rule's requirements will not exceed $25 million in any one year, and, since the rule does not impose any direct requirements on the private sector, the private sector will incur no costs. The Agency projects that the cost to develop plans and begin implementation will be $ I million to $2 million per state, but states believe that costs will be much higher. (Costs to the private sector of implementing controls are likely to be considerably higher but are unknown for now.) However, EPA recognizes that the proposed rule does create a mandate on state governments and authorized tribes and that the federal government will not provide all of the funding necessary to pay the direct costs incurred by states and tribes.

EPA acknowledges that state officials and their representatives have expressed great concern about the capacity of state governments to carry out any new requirements beyond those in current regulations. Local government officials expressed concerns in particular about any TMDL allocation approaches that result in municipal point sources having to bear an inequitable share in the pollutant load reductions needed to attain water quality standards. Municipal sewerage and water agency officials have long argued that more stringent water quality standards cannot be met unless more is done to regulate nonpoint sources.

In public comments on the proposal, states have raised a number of concerns about its requirements. Concerning data to be used for listing impaired waters, some states are concerned that if the data are not defensible, TMDLs will be challenged. Hence, some states would prefer to use only monitored data, not evaluated information, to ensure that TMDLs are based on sound science. Doing so, however, would limit TMDLs only to the lesser percentage of waters for which monitoring has been done. Some states anticipate that, when they release their listing methodologies (due Jan. 31, nine months before submitting 3 03 (d) lists), they will be challenged, thus delaying the entire process. States would prefer that, if an implementation plan is required, it be required under another planning provision of the law (section 303(e)), which does not provide for the enforcement or federal fallback procedures in section 303(d). Finally, many states have raised concerns about the availability of resources (financial, technical, and administrative) to comply with the new requirements within the timeframes outlined in EPA's proposal. It should be noted, too, that some states have said the proposal is doable and consistent with approaches underway in a number of locations.

Glossary of Terms

Animal feeding operation (AFO): Agricultural enterprises where animals are kept and raised in confined situations. AFOs congregate animals, feed, manure and wastewater, and production operations on a small land area. Feed generally is brought to the animals, rather than the animals grazing or otherwise seeking feed in pastures, fields, or on rangeland.

Animal feeding operations strategy: A Plan issued jointly by USDA and EPA in March 1999 as part of the CWAP with the goal of having AFO owners and operators take actions to minimize water pollution from animal confinement facilities and land application of manure.

Animal unit (AU): As defined by USDA, an animal unit is 1,000 pounds of live weight of any given individual livestock species or combination of livestock species.

Clean Water Act (CWA): Federal Water Pollution Control Act (P.L. 92-500), as amended.

Clean Water Action Plan (CWAP): Administration initiative announced in February 1998 intended to coordinate federal efforts to address the nation's remaining water quality challenges.

Comprehensive Nutrient Management Plan (CNMP): A plan that identifies actions or priorities that will be followed to meet defined nutrient management goals at an agricultural operation. CNMPs may address, as necessary, feed management, manure handling and storage, land application of manure, land management, record keeping and other utilization options.

Concentrated animal feeding operation (CAFO): An animal feeding operation that meets EPA regulatory definitions, where more than 1,000 animal units are confined at the facility; or more than 300 animal units are confined at the facilities and (1) pollutants are discharged into navigable waters through a manmade ditch, flushing system, or other similar manmade device, or (2) pollutants are discharged directly into waters that originate outside of and pass over, across, or through the facility or come into direct contact with the confined animals.

National Pollutant Discharge Elimination System (NPDES): The principal discharge permit program of the CWA, authorized in section 402 of the law. NPDES permits, issued by EPA or authorized states, are required in order to discharge from a point source into waters of the United States. NPDES permits contain limits on what can be discharged, monitoring and reporting requirements.

Nonpoint source: Under the CWA, sources that do not meet the definition of point source, generally including diffuse runoff that does not enter the nation's waters from a discernible, confined and discrete conveyance. Nonpoint source pollution is the by-product of a variety of land use practices, including farming, timber harvesting, mining, and construction. It also results when rainfall and snowmelt wash pollutants in urban areas into sewer systems and storm drains. Nonpoint sources are not subject to NPDES permit requirements. Under this law, they are managed primarily through the Act's section 319 program, which requires states to assess the extent to which nonpoint sources cause water quality problems and develop management programs to address them.

Point source: Under the CWA, means any discernible, confined and discrete conveyance, such as pipes, ditches, channels and tunnels, from which pollutants are or may be discharged. Point sources are subject to NPDES requirements. The term does include CAFOs but does not include agricultural stormwater discharges and return flows from irrigated agriculture.

Total Maximum Daily Load (TMDL): A quantitative assessment of water quality problems, pollution sources, and pollutant reductions needed to restore and protect a river, stream, lake, or coastal waterbody, as required by section 303(d) of the CWA.

Watershed approach: An approach to resource management that focuses on hydrologically defined drainage basins (watersheds) as the areas of study, rather than areas defined by political or other boundaries. The watershed protection approach identifies the primary threats to human and ecosystem health within a watershed and takes a comprehensive, integrated approach to solutions and actions.

Timeline of Identified Activities and Events In the AFO Strategy and TMDL Program

February 1998: President and Vice President released the Clean Water Action Plan

March 1999: EPA and USDA issued the Unified National Strategy for Animal Feeding Operations (AFO Strategy35)

May 1999: USDA-NRCS issued the Policy for Nutrient Management and revision to the conservation practice standard for Nutrient Management (Code 590), guidance for developing Comprehensive Nutrient Management Plans (AFO Strategy)

August 1999: EPA issued draft guidance manual for NPDES permits for CAFOs (AFO Strategy)

EPA proposed revised regulations for the TMDL program (TMDL36)

2000-2005: Round I CAFO permitting (AFO Strategy)

January 2000: EPA and states should issue general permits for large CAFOs with significant manure production. Permits expire in 5 years. (AFO Strategy)

Jan. 22, 2000: Public comment period on proposed TMDL regulations closed (TMDL)

December 2000: EPA and USDA will develop a coordinated technical transfer and education plan to disseminate results of AFO-related research (AFO Strategy)

EPA and USDA will develop a Virtual Center to serve as a single point of reference regarding research topics (AFO Strategy)

Dec. 15, 2000: EPA will propose revised effluent guidelines for poultry, swine, beef and dairy cattle. (EPA is under court order) (AFO Strategy)

May 15,2001: EPA shall submit to Congress a cost and capability assessment report on the AFO strategy (EPA FY2000 appropriations, P.L. 106-74, H.Rpt. 106- 379)

2001: CAFO inspections-EPA and states should inspect all CAFOs in priority areas by end ofFY2001 (AFO Strategy)

Jan. 31, 2002: States must provide EPA and the public with the methodology used to compile 303(d) lists of impaired and threatened waters. Similar submission is due on January 31 of each listing year (frequency of listing— every 2, 4, or 5 years—to be determined in final regulations) (TMDL)

Oct. 1,2002: States submit 303(d) lists of impaired and threatened waters, including schedules and implementation plans. EPA has 30 days to approve the list or add waters to it, if it determines the state's list is not complete. Similar submission is due on October I of each listing year (frequency of listing— every 2, 4, or 5 years—to be determined in final regulations) (TMDL)

Dec. 15, 2002: EPA will issue revised effluent limitation guidelines for poultry, swine, beef and dairy cattle (EPA is under court order) (AFO Strategy)

2002: EPA and states should issue permits for smaller CAFOs with unacceptable conditions or significant contributions to water quality impairments by the end of this year. Permits expire in 5 years. (AFO Strategy)

2003: CAFO inspections-EPA and states should inspect all other CAFOs by end of FY2003 (AFO Strategy)

Large CAFOs that were issued general permits in 2000 should develop and fully implement Comprehensive Nutrient Management Plans (CNMPs) no later than end of this year (AFO Strategy)

Oct. 1,2005: EPA recommends that states establish TMDLs for high-priority waters by this date (i.e., 5 years after submission of 303(d) list submitted in October 2000) (TMDL)

2005: Smaller CAFOs that were issued permits in 2002 should develop and begin implementation of CNMPs by the end of this year (AFO Strategy)

2005-2010: Round II CAFO permitting by EPA and states to reissue general permits and individual permits as they expire, incorporating new requirements resulting from revision of CAFO permit regulations and effluent limitation guidelines plus refinements to site-specific CNMPs and any additional requirements needed to achieve water quality goals (i.e., state water quality standards for nutrients, TMDLs) (AFO Strategy)

Oct. 1, 2017: States should develop TMDLs for all Part I waterbodies identified in 303(d) list of impaired and threatened waterbodies submitted in October 2002 (TMDL)

Footnotes  

1 The CWA uses and defines both the term "pollution" and the term "pollutant." With respect to the TMDL provision of the law, the distinction between the broader term "pollution" and the narrower term "pollutant" i important. See the discussion on page 20 of this report.

2 U.S. Environmental Protection Agency. Section 319 Success Stories: Volume II. Highlights of State and Tribal Nonpoint Source Programs. EPA841-R-97-001. Oct. 1997. 213 p.  

3 U.S. Department of Agriculture, U.S. Environmental Protection Agency. "Unified National Strategy for Animal Feeding Operations." Mar. 9, 1999: 19-20.

4 For additional information, see CRS Report 98-150, The Clean Water Action Plan: Background and Early implementation, and CRS Report 98-745, Clean Water Action Plan: Budgetary Initiatives.

5 Notice of Vice President Gore's Clean Water Initiatives." 62 Federal Register 60447- 60449, Nov. 7.1997.

6 U.S. Environmental Protection Agency. National Water Quality Inventory: 1996 Report to Congress. I vol. Broadly speaking, "impairment" means that the waterbody fails to attain and maintain designated water quality standards.

7 Statement of Michael Cook, U.S.EPA. In: U.S. Congress. Committee on Agriculture. Subcommittee on Forestry, Resource Conservation, and Research and Subcommittee on Livestock, Dairy, and Poultry. "Activities of the Environmental Protection Agency Related to Livestock Feeding Operations." Joint Hearing, 105*Congress,2dSession. May 13, 1998: 60. Serial No. 105-50.

8 Wyoming Association of Conservation Districts v. Browner, D. Colo., 99-1179, June 23, 1999. On Feb. 2,2000, the federal government filed a motion to dismiss this case, citing lack of jurisdiction and lack of subject matter.

9 Other than this Senate oversight hearing. Congress has considered the CWAP primarily through the appropriations process, where spending decisions about the FY 1999 and FY2000 requests to fund the Plan were considered. A House Agriculture joint subcommittee hearing in May 1998 (see footnote 6) focused on federal agency activities concerning livestock feeding operations, but not on the overall CWAP.

10 For information, see CRS Report 98-451, Animal Waste Management and the Environment: Background for Current issues.

11 As defined by USDA, an animal unit is 1,000 pounds of live weight of any given livestock species or combination of livestock species. This term varies according to animal type; one animal is not always equal to one animal unit. EPA's regulation of CAFOs covers AFOs consisting of: 1,000 beef cattle; 700 mature dairy cattle; 2,500 swine weighing over 55 pounds; 500 horses; 10,000 sheep; 55,000 turkeys; or 30,000 laying hens or broilers (with a liquid manure handling system).

12 The concentration that has occurred in the animal agriculture sector is illustrated by changes over time in the number of CAFOs. When EPA's current CAFO regulations were proposed in 1975, USDA analyzed the potential impacts and reported that 95,000, or 13.6%, of the 700,000 animal feeding operations in the country would be subject to those rules. (Source: U.S. Department of Agriculture. "Implications of EPA Proposed Regulations of November 20, 1975 for the Animal Feeding Operations." Washington, DC, Jan. 30, 1976. 26 p.) The smaller number of total operations and smaller number of CAFOs today suggest that those that are regulated currently are, on average, much larger than 20 years ago.

13 Parry, Roberta. "Agricultural phosphorus and water quality: a U.S. Environmental Protection Agency perspective." Journal of Environmental Quality. Vol. 27, no. 2 (1998): 258.

14 CWA section 304(b) requires EPA to review and, if appropriate, revise effluent limitation guidelines at least annually. The CAFO standards have not been reviewed or revised since they were promulgated in the mid-1970s.

15 U.S. Department of Agriculture, U.S. Environmental Protection Agency. "Unified National Strategy for Animal Feeding Operations." Mar. 9, 1999. 46 p. Text of the strategy is available at [ http://www.epa.gov/owm/afo.htm   ].

16 The President's FY2000 budget requested an additional $126 million (for S300 million total) for the Environmental Quality Incentive Program (EQIP) and $20 million in USDA assistance to existing AFOs for development or revision of CNMPs. FY2000 appropriations (in P.L. 106-78) provided $19 million of the requested increase for AFO assistance but no increase for the EQIP program. In FY1999 EPA received an additional $95 million (for $200 million total) for the Section 319 nonpoint source management grant program, with the increase directed to priority watersheds under the Clean Water Action Plan. The President's budget again asked for $200 million for this grant program for FY2000, and appropriators (in P.L. 106-74) approved this request. For FY2001, the budget seeks $325 million for EQIP, $73 million for AFO assistance, and $250 million for Section 319 grants.

17 NRCS Policy for Nutrient Management, Part 402. Text of the policy is available at: [ http://www.nhq.nrcs.usda.gov/BCS/nutri/gm-190.html   ]

18 NRCS Nutrient Management (Code 590) Conservation Practice Standards. Text is available at: [http://www.nhq.nrcs.usda.gov/BCS/nutri/590.html]

19 U.S. Environmental Protection Agency. Office of Wastewater Management. Guidance Manual and Example NPDES Permit for Concentrated Animal Feeding Operations. Review Draft. Aug. 6, 1999. I vol. [ http://www.epa.gov/owm/afo.htm#Permit_Guidance    ] EPA provided a 90-day comment period on the draft guidance manual.

20 Farm Groups Fear Regulatory Intrusion." Land Letter, Jan. 28, 1999: 2.

21 "Farmers, Environmentalists Blast EPA Plan to Control Polluted Runoff," Inside E.P.A., Mar. 12,1999:13.

22 H.Rpt. 106-379, in the Congressional Record, daily ed., Oct. 13, 1999: H10019.

23 For additional information, see CRS Report 97-831, Clean Water Act and Total Maximum Daily Loads (TMDLs) of Pollutants.

24 For information on TMDL litigation by state, see EPA's Web site: [ http://www.epa.gov/OWOW/tmdl/lawsuitl.html   ].

25 This is a longer time frame than is being mandated as a result of some of the TMDL litigation. The schedules for TMDLs in 15 lawsuits concluded by consent decrees and settlement agreements range from 4-1/2 years to 12 years.

26 Houck, Oliver A. "TMDLs, Are We There Yet?: The Long Road Toward Water Quality- Based Regulation under the Clean Water Act." Environmental Law Review, v. 27, August 1997 p. 10399.

27 64 Federal Register No. 162, Aug. 23, 1999. pp. 46011-46055.

28 U.S. Environmental Protection Agency. REPORT OF THE FEDERAL ADVISORY COMMITTEE ON THE TOTAL MAXIMUM DAILY LOAD (TMDL) PROGRAM. July 1998. I vol. Available at: [ http://www.epa.gov/OWOW/tmdl/advisory.html#fdr   ].

29 For additional information, see CRS Report RL30422, "EPA's Total Maximum Daily Load (TMDL) Program: Highlights of Proposed Changes and Impacts on Agriculture."  

30 Under current regulations, state TMDL lists would next be due April 1, 2000. However, with the program in flux because of the August 1999 proposals, EPA suspended the April 2000 listing requirement. States thus would be required to submit new lists by Apr. 1,2002. (65 Federal Register No. 22, Feb. 2, 2000. pp. 4919-4923) '

31 Under the Act, the definition of "pollution" is broader than the definition of "pollutant" and means "the man made or man-induced alteration of the chemical, physical, biological, or radiological integrity of water." The statutory definition of "pollutant" is narrower and means "dredged spoil, solid waste, incinerator residue, sewage, garbage, sewage sludge, munitions, chemical wastes, biological materials, radioactive materials, heat, wrecked or discarded equipment, rock, sand, cellar dirt and industrial, municipal and agricultural waste discharged into water." (CWA section 502)

32 In northern California, a group of farmers filed suit in April 1999 challenging EPA's authority to control pollutant allocations to waters impaired by nonpoint sources. (Pronsolino v. EPA, N.D. Cal., No. C-99-1828, Apr. 12, 1999) Plaintiffs in the lawsuit claim that the CWA does not give EPA the authority to regulate nonpoint sources such as agricultural runoff. Groups representing major point source dischargers are concerned that if the plaintiffs are successful, point sources will be unfairly targeted to achieve more stringent water quality controls. Several of these groups, as well as environmental groups, have intervened in the lawsuit.

33 64 Federal Register 162, Aug. 23, 1999. pp. 46057-46089.

34 This proposal was anticipated in the March 1999 Unified National AFO Strategy: 36.

35 Based on schedules and information contained in the Unified National Strategy for Animal Feeding Operations, issued March 1999.

36 Based on revised regulations for the TMDL program, proposed August 1999.