Concentrated Animal Feeding Operation Proposed Rule
U.S. Environmental Protection Agency
Office of Water
401  M  Street, S.W.
Room 611 West Tower
Washington, DC 20460

To Whom It May Concern:

The National Governors Association (NGA) is pleased to provide the following comments on the Notice of Data Availability (NODA) for the proposed Concentrated Animal Feeding Operation (CAFOs) regulations.  We appreciate that the Environmental Protection Agency (EPA) is attempting to use the NODA as a basis for considering new alternatives for state flexibility in the final rule.  We believe the NODA provides EPA with an opportunity to adopt the concept of "functional equivalency" as means of achieving this flexibility.

The Governors support the objectives of the CWA and its goal of fishable and swimable waters. The Governors believe that, consistent with the design and the intent of the CWA, the primary responsibility for managing the nation's vital water resources is properly vested with the states. We remain committed to reducing harmful environmental impacts that CAFOs may produce. Despite the NODA's request for comments on new alternatives for providing flexibility for states, we believe it does not fully allow for innovative state programs that in many cases are as effective as or more comprehensive than EPA's National Pollution Discharge Elimination (NPDES) program.

State Innovation

Due to consolidation in the livestock industry, the proper management of bulk manures and wastewater from feedlots and facilities is a growing challenge. However, the states are stepping up to this challenge. A number of states have established new environmental regulations to address animal feeding operations (AFO). These regulations recognize that the environmental problems associated with AFOs are part of the larger problem of nutrient enrichment of waters due to non-point source pollution. States have developed or are implementing nutrient management and non-NPDES permitting programs, some of which may qualify as models for the nation. Other states have pursued non-regulatory approaches, which may include educational or incentive-based programs.  Each state has tailored its approach to meet state water quality standards while taking into account local geography, climates, and the diversity of livestock operations. 

Functional Equivalency

While the federal NPDES permit program has played an important role in water quality, we believe that Governors should be able to design functionally equivalent programs that enable each state to address manure management in a manner that best suits the needs of that state. The components of a functionally equivalent program, among other things, could include:

• comprehensive nutrient management plans;
• outcome-based performance standards;
• education and technical enforcement provisions; and
• public participation.   

The concept of functional equivalency is grounded in the understanding that there are many ways for federal, state, and local stakeholders to collaboratively utilize their authorities and resources to address water quality problems. States have learned that partnering with local agencies and stakeholders facilitates the establishment of common goals and priorities, sharing of resources, and enhancement of technical and financial assistance. This approach engenders creative problem solving, yielding more progress and greater commitment to implementation than a top down approach. States have proven, particularly in the case of CAFOs, that they can use this approach to achieve results that meet or exceed the objectives of the CWA.  

EPA Discretion

States that have developed innovative functionally equivalent programs have generally engaged in long and difficult negotiations with stakeholders to design effective and affordable approaches to management of livestock waste. Notwithstanding these efforts, the NODA and EPA would require states to dismantle successful programs and institute a new regulatory framework, imposing new costs and staff resources, or subject the regulated community to two redundant permitting programs.

The NODA indicates that EPA is constrained from adopting functionally equivalent state programs by the CWA and EPA regulations. Specifically, the NODA states that section 402(b) of the CWA, and the corresponding regulations contained in 40 CFR Part 123, require that all NPDES programs contain five elements: 1) federal enforceability; 2) public participation; 3) citizen suits; 4) five-year permit terms, and 5) permit conditions and limitations designed to limit discharges. According to the NODA, in order for a state program to be functionally equivalent, it would have to issue permits that meet all of these elements.

Notwithstanding the assertion in the NODA that section 402(b) sets a statutory floor for NPDES permits that includes citizen suits, a closer look at section 402(b) and 40 CFR 123 reveals that neither provision mandates citizen suits. In this regard, the Governors suggest that the citizen suit provision is not required under the law and that EPA has the discretion and flexibility to allow states to establish functionally equivalent programs that would not provide for citizen suits.

For example, EPA currently sanctions functionally equivalent programs as part of its sludge management program promulgated under section 405 of the CWA. Section 405 authorizes states, subject to EPA approval, to operate their own permit program for disposal of sewage sludge. While the implementing regulations found in 40 CFR Part 501 contain extensive public participation provisions, including the right of citizens to intervene in state civil or administrative enforcement actions, they do not require that states allow citizens to bring their own enforcement action. The CWA citizen suit provisions, found in section 505(a), which authorize actions for alleged violations of CWA effluent standards and limitations, are not applicable under section 405. States are issuing sewage sludge disposal permits pursuant to state law and these non-NPDES permits contain state effluent standards and limitations, not CWA standards and limitations. Such an approach may be a useful model to examine in the context of AFOs. 

In addition, many states are currently running effective CAFO/AFO programs that allow for meaningful public participation but do not provide for citizen suits. Similarly, all state CAFO/AFO programs do not necessarily include five-year permit terms, but design permit periods that are appropriate for state and industry practices.  These programs are tailored to the problems unique to the state, helping to make them more likely to be accepted and successfully implemented. The Governors urge EPA to utilize its full discretion in this rulemaking and not allow the citizen suit issue, or other arbitrary requirements, to be a stumbling block to the concept of functional equivalency.

Flexibility Criteria

Under a functionally equivalent program, states would be exempt from operating an NPDES program for CAFOs. The measure of a state program's effectiveness at managing manure and wastewater should be water quality monitoring data and attainment of state water quality standards.  Federal accountability would be retained since states could be required to pursue NPDES permitting and enforcement actions in the event facilities continue to fail to adopt the controls called for under the state program. The Governors do not believe that it is practical or necessary for EPA to develop uniform national programmatic performance criteria for assessing the effectiveness of each state's non-NPDES program.

Alternatively, should EPA insist on establishing criteria as a basis for assessing whether a state functionally equivalent program is sufficient, the Governors suggest that EPA develop criteria in partnership with each state.  Any one of the six criteria detailed in the NODA may be relevant depending on the needs, unique characteristics, and priorities of each state. One way to accomplish this partnership is through a collaborative federal-state rulemaking process. This process could be used to help define the standards and guidelines for a state's participation in the CAFO program. States should be eligible for grant money to cover additional administrative costs that may be incurred as a result of any delegation of authority. If a state chooses not to -- or is unable to -- take a lead role in a program, it should remain a full partner in administering the federal program to ensure that its authorities, expertise, and working relationships are fully utilized and that duplication is minimized.   

Environmental Management Systems

We believe the concept of states using Environmental Management Systems (EMS) to achieve greater flexibility under the CAFO regulations is promising.  However, we do not believe the NODA is the proper forum for fully addressing EMS. EMS was first introduced in the proposed rule only in the context of it being an alternative to co-permitting. In the NODA, it appears that EPA is stretching the adoption of EMS beyond the purview of the proposed rule to address such things as air deposition of contaminants, odor, and pest control.  Given the highly complex and variable nature of EMS, and questions regarding whether EPA has the authority in this rulemaking to regulate in these additional areas, the Governors believe that this concept is better addressed in a separate rulemaking. 

In closing, we ask EPA to take a closer look at the many innovative and well-developed programs that states are using to control pollution from AFOs. State functionally equivalent programs need to be fully considered as viable alternatives to EPA's imposition of an entirely new "top-down" regulatory regime. We remain convinced that these programs will yield equal or superior environmental protection. We look forward to working with you further to develop a regulatory program that better defines the proper role of federal government and the states in controlling runoff from animal feeding operations.    

Sincerely,