CRS Report: 98-451 - Animal Waste Management and the Environment: Background for Current Issues

Animal Waste Management and the Environment:
Background for Current Issues Environment:(contd.)

Reactions to EPA initiatives. Even before EPA's compliance and enforcement strategy becomes final and details are known (specific impacts are likely to take several years to be felt), strong reactions are being expressed. Not surprisingly, reactions are mixed. Farmers and farm groups have raised concern about regulations that drive up the cost of production and whether financial assistance will be available to lessen costly impacts, especially on small operations. The expense of compliance could increase the cost of food, make U.S. farming less competitive, and put farmers out of business, they say. However, in states that already have stringent rules (permits and siting requirements, for example), farmers might see little impact from more vigorous EPA enforcement. (Wisconsin and North Carolina have been cited as examples of this situation.) Some operators consider a more pronounced federal role as an opportunity to harmonize conflicting federal, state, and local policies a view of the pork producers' industry, for example, discussed below in this report.

State officials have mixed views on the subject of national standards. Officials from states with strong programs generally endorse the concept that federal rules will ensure national consistency without penalizing those states that have rules in place. Minimum national standards are needed, they say, to discourage operators from relocating to states with more favorable rules. For example, several reports say that the recent rapid expansion of the swine herd in North Carolina can be traced back in part to favorable state rules that were in effect in the late 1980s and early 1990s. However, one concern is that many states already have difficulty in allocating resources for feedlot inspections and enforcement and are likely to question how they will support new regulatory efforts.

Environmentalists say that the proposed timeline to implement EPA's strategy (7 years to issue CAFO permits) is too slow and fails to address current ineffective animal waste practices. Many are critical that EPA has failed to act on this problem sooner. Likewise, they criticize EPA for not adequately addressing animal waste impacts on air quality and groundwater. Some favor a federal moratorium on new or expanded feedlots (for 2 years, for example) to give EPA and states time to develop and implement new programs.35

While most states have some form of livestock waste regulation, state laws and programs vary widely in approach and implementation. For example, nearly 30 state departments of agriculture administer some type of program to regulate animal waste and manure, and 43 states are responsible for administering Clean Water Act permit requirements for CAFOs, usually through an environmental agency No single model encompasses the approaches of all states. Which state agency is in charge, or whether responsibility is shared, varies. In many states, regulatory programs are limited to some livestock sectors but not others. For example, Delaware requires animal waste management plans for all poultry production facilities, regardless of size, but has no similar requirement for swine or cattle facilities.

Requirements of state programs differ. For example, in Minnesota, permits are required for facilities with as few as 50 animal units, while many states only require permits for facilities with more than 1,000 animal units (the EPA threshold). In Nebraska, operations of any size require a permit if they have potential to discharge. As noted previously, many states do not issue CWA permits to CAFOs, on the premise that the facilities do not discharge wastes. Some states (Iowa, for example) require permits for construction of waste lagoons and other facilities, but not for operation. Others such as Nebraska require permits for both, but only in areas where operations are believed to pose environmental risk. Some states (California, Georgia, Idaho, Indiana, and Oklahoma, for example) require operators to follow design standards, including use of liners for waste lagoons, but many have no such standards. A small but growing number of states require training and certification of operators for manure application and management.

Few states have air quality regulations related to CAFOs; New Jersey does have regulations, and Oklahoma requires an odor abatement plan, but most states either have no requirements or specifically exempt agriculture sources. Missouri's Air Conservation Commission recently created a task force to study farm odor pollution issues and to close a loophole in state law that exempts very large farms from odor emission rules. State laws and programs also vary in the amount of public notice or participation that is required or allowed in connection with permitting. Many states do not require inspection before permit issuance or waste management plan approval or routinely thereafter. Thus, in many cases, violators are identified only upon citizen complaints. Only a few require groundwater or other monitoring to determine if lagoons leak and contaminate water resources.

According to a recent review of state regulation of agricultural nutrients, in most cases, state authorities closely follow or only modestly expand upon federal requirements. Where they do vary, enforceable state laws relating to CAFOs may expand on federal requirements in at least three ways.37 First, some impose siting requirements and limitations North Carolina, South Dakota, and Iowa, for example). Second, a number of states require enforceable nutrient management plans and/or best management practices (such states as Pennsylvania, West Virginia, Vermont, Ohio and Florida). Third, some states expand on federal rules by regulating CAFOs that are smaller than the EPA definition (Mississippi, Kansas, and Connecticut, for example). More generally, several states have laws with enforceable requirements concerning nonpoint source pollution from agricultural nutrients (both manure and fertilizers), particularly if such material threatens ground or surface water pollution (such as Nebraska, Michigan, Montana, and Arizona).38

In some areas, management of animal waste is market-driven, as much as it is regulated by government. For example, in Pennsylvania, banks that faced large liability costs for manure spills into waterways, have taken steps to protect their investments by requiring agricultural loan applicants to supply nutrient management plans.39 At the same time, Pennsylvania is now implementing a law passed in 1993 that requires farms with more than 1,000 pounds of animal (2 cows) per acre to prepare a plan with Best Management Practices to prevent nutrient releases to the environment. About 8,000-10,000 existing beef dairy, swine, poultry, and horse farms in Pennsylvania meet the law's animal density criteria. The plans must meet a performance requirement that limits application of nutrients to plant uptake levels.

Many states have so-called "night to farm" laws that protect agricultural activities by creating a presumption that, unless explicitly addressed through local zoning, farming activities are deemed permitted if they are conducted in accordance with accepted practices and all applicable laws and regulations. These state laws often exempt agricultural activities from nuisance laws, thus preventing or limiting nuisance action lawsuits against odors and noise of normal farming operations.

Despite such "right-to-farm" laws and others that bar counties from adopting zoning or similar restrictions on agriculture, there is a growing trend to use local zoning, land use, and health department controls that are more stringent than state and federal rules. For example, in South Dakota, Colorado, Utah, Georgia, Michigan, and Kentucky, counties may adopt zoning regulations to restrict agriculture. In Indiana, counties may impose CAFO requirements more stringent than state rules. In North Carolina, counties may issue special use restrictions. Groups representing livestock interests have generally expressed opposition to the proliferation of rules that can result from county-imposed controls.

A key limitation for many state programs, regardless of their statutory requirements, is oversight and enforcement. How diligent a state is in enforcing laws and rules (federal and state) may be reflected in the resources it provides for such activities. Typical of many states, Minnesota has a staff of 22 inspectors to regulate 45,000 animal feeding operations that require permits. With current staff, it would take 20 years to inspect every feedlot in the state once, according to an official.40 Oklahoma has six inspectors to enforce state laws that regulate more than 200 licensed swine farms and 1.7 million swine. Washington state has three inspectors responsible for more than 800 dairy farms. In 1997, Nebraska had two inspectors to verify proper construction and operation of waste control facilities.

As a general matter, states vary in their commitment to protecting the natural environment, depending on a number of variables, including severity of environmental problems, economic resources, and political pressure from interest groups. Reportedly, one reason for the variation in state animal agriculture programs is that some have aggressively sought to attract animal agriculture companies into their jurisdictions, and used state policies and laws to do so, hoping that the companies would bring significant economic benefits to the state. Some offered tax abatement for new livestock operations or associated job creation. Some promoted the fact that their environmental laws and enforcement on livestock operations were less stringent than their neighbors. In the early 1 990s, for example, Oklahoma, Texas and Missouri were among the states that lobbied successfully for livestock expansion. North Carolina's swine population grew from 2.5 million animals in 1990 (seventh place, nationally) to 9.7 million in 1998 (second place, nationally). Other states where taxes on agriculture were perceived to be high saw livestock producers relocate elsewhere; this occurred in Wisconsin, for example, where the dairy industry began losing its share in 1991 (taxes were one of several variables, in this case), while California has become the nation's leading milk producer.41

At the same time, some states that are not necessarily unfriendly to agriculture have enacted anti-corporate farming statutes, primarily in order to prevent certain corporate legal structures from engage in farming within state borders. Often, these restrictions arise from concern that large corporate-style operations owned by out-of-state entitles will squeeze out small family farm operations and disrupt the economic infrastructure that supports agriculture in the state. Anti-corporate farm laws do no develop out of concern for environmental issues in a state. Rather, they are part of a set of pressures that confront concentrated animal agriculture operations. It is unclear at this point whether or how anti-corporate farm issues will come together with animal waste management issues in policy debates.

Anti-corporate farm restrictions do arise from concern that large corporate style operations owned by outof-state entities will squeeze out small family farm operations and disrupt the economic infrastructure that supports agriculture in the state. Nine states currently have such prohibitions. Several have done so by statute (Iowa, Kansas, Minnesota, Missouri, North Dakota, South Dakota, and Wisconsin). Nebraska has done so by a constitutional provision, and Oklahoma has both constitutional and statutory provisions.

Box 4. Swine Operations in Iowa

Iowa is the most intensely farmed state in the nation. Iowa's human population is 2.8 million persons, while its swine population is about 14 million. Almost 95% of land in the state is considered to be rural, and more than 75% is considered cropland. The state has 16,000 cattle and swine farms of all sizes, including 1,300 cattle and swine operations bigger than 2,000 animals. Iowa is the leading swine-producing state, producing nearly one-quarter of the nation's total. In part to protect its leadership status, in 1995 the state passed a law which made it difficult for people to bring nuisance lawsuits against swine operations that move into their neighborhood. Critics of the law say that no other Iowa business is protected from lawsuits brought by people when a newly arrived enterprise creates problems for existing residents. (Source:Fruling, Larry. "Iowa Hog Farms Raise Pungent Controversy; Byproduct Threatens Quality of Rural Life." Chicago Tribune. Apr. 15, 1998: N-i.)

However, most of these state restrictions or limitations on corporate farming contain numerous exceptions to the general rule. For example, many of them do not prevent the operation of very large corporate-style farms managed by domestic (instate) entities under a "family farm corporation," "authorized farm corporation," "cooperative," and other legal structures provided for in the statutory exceptions. Some states distinguish U.S. domestic and foreign (non-U.S.) ownership, as well Several states provide exceptions in the form of grandfathering farms owned prior to certain dates. Some states also provide exceptions for certain types of livestock operations. For example, while Kansas law limits corporate farming, it also permits a county option to approve use of land for swine production facilities. Under Nebraska's constitutional provision, agricultural land operated by a corporation for the purposes of raising poultry is exempt from corporate farming restrictions. Missouri law provides an exception to anti-corporate farming limitations which applies to swine production facilities in three particular counties.42

While many states have rules and laws for regulating livestock production, public pressure for additional restrictions is strong in many locations. During their 1998 legislative sessions, a number of state legislatures (at least 20) are considering bills on the topic. Proposals fit in three broad categories: bills to establish moratoria on siting and licensing of large-scale animal operations in the state; bills concerned with which level of government shall control the siting of livestock operations; and regulatory bills.44 The swine industry has been a dominant, but not exclusive, focus of state legislation. Issues being debated in the states may presage issues that could arise at the federal level, as well.

In most states where these issues are active this year, there are competing proposals under consideration, representing alternative views of key interest groups. In some cases, strict state legislation has been proposed by the Governor (in Maryland and Kentucky, for example), but elsewhere, the Governor's office is opposing proposals for new regulations that have been pushed by lawmakers and some interest groups (Minnesota and Wisconsin).

Moratorium proposals. North Carolina enacted bills in 1995 and 1996 to strengthen permit and regulatory requirements but went further when it adopted a statewide 2-year moratorium on new and expanding swine farms (larger than 250 swine) in 1997. Its purpose was to prevent expansion or start-up of new operations until new regulations are developed. (See Box 5, page 29) In Kentucky, the Governor has placed a temporary moratorium on new swine farms, while the legislature considers regulatory proposals. In 1998, other states where large-scale farms are attempting to move in and expand also are considering moratorium bills to allow time to identify waste management policies, options, and rules. A 1-year moratorium on the expansion of large swine-farming operations has already been enacted in 1998 in Oklahoma, based on support by the Governor, as well as legislative leaders. It prohibits the state Agriculture Department from authorizing or even processing an application for a new or expanded large swine-feeding operation during the moratorium. In April, Mississippi enacted a 2-year moratorium on new swine farm applications. Also, Minnesota enacted a 2-year ban on new open-air waste lagoons, but stopped short of enacting a comprehensive moratorium, as the Minnesota House had approved previously. Moratorium bills also were proposed in 1998 in Alabama, Illinois, Kansas, Maine, and Wisconsin. Industry groups in the states have actively opposed moratorium bills.

State versus local control. One of the most controversial issues in several states is the question of who will control the location and zoning of large animal production operations -- the question of state versus local control. Localities desire to impose their own requirements for permits, zoning, monitoring and inspections, and pollution prevention, while industry groups generally argue that, if such requirements are called for, they should be uniform and statewide, to minimize potential confession and burdens that could result from a patchwork of differing county-by-county rules. Bills that favor local decision-making would either expressly give county governments some control over where, and how swine farms can be located (Illinois and Nebraska) or require a county referendum to approve siting of large-scale swine operations (enacted in Kansas in April). A Mississippi bill enacted in April which establishes a 2-year moratorium also allows counties that act by June 1 to impose their own regulations on farms. Other states are considering bills to pre-empt local zoning of large-scale farming operations (Indiana, for example, where such a bill was enacted in March, and Colorado) or a hybrid approach (Iowa, where a bill giving county officials the right to appeal state permits for livestock operations, but prohibit local regulation, was enacted in April).

A related issue is whether the lead responsibility should lie with the state agency charged with environmental management (departments of environmental quality or public health), as environmentalists favor (bills in Colorado and Tennessee would do this), or with the one likely to provide advice and technical assistance to farmers, but not regulate them (departments of agriculture), as industry favors (a Vermont bill, for example). Ohio legislators also are debating this issue. In Maryland, the legislature approved a bill in April that requires poultry producers to use a phosphorus-reducing enzyme called phytase in chicken feed as a way to limit phosphorus discharges from agricultural operations. One contentious issue in that bill was resolved when legislators agreed to let the state agriculture secretary, not the department of environmental quality, monitor compliance with the mandate.

Box 5. Recent North Carolina Experience

Between 1990 and 1998, North Carolina's swine population quadrupled, from 2.5 million to nearly 10 million animals. Most of the state's animal agriculture production is located in the southeastern third of the state, an area comprised of sandy soils, high water tables, shallow drinking water wells, and extensive networks of rivers and streams. To some observers, it was not surprising when, in mid-1995, spills from swine waste lagoons occurred. What was more surprising was the extent: one 8-acre lagoon spilled 22 million gallons of waste into the Neuse River, killing 10 million fish and closing nearly 365,000 acres of coastal waters to shellfish harvesting and commercial fishing. Other waste lagoon spills also occurred that year, drawing public attention to some of the environmental and economic consequences of concentrated animal farming operations in the state. But even before those events, the 200-mile long Neuse River had for several years experienced algae blooms and fish kills during summer months due to high levels of nutrients from rural and urban runoff and industrial and municipal discharges. In 1997, the environmental group American Rivers declared the Neuse one of the most 20 threatened rivers in the United States.

In response, the North Carolina legislature enacted bills in 1995, 1996, and 1997 to address animal waste problems. The 1995 law mandated buffers between swine houses or lagoons and residential property, public buildings such as schools and hospitals, and streams or rivers. This law established a Blue Ribbon Commission which presented recommendations that the legislature addressed in 1996. That year, the state required general permits and fees for all animal feeding operations, mandated annual inspections, increased buffers for residences, and required poultry operations to develop waste management plans by January 1998. Recognizing that animal wastes were not the sole problem, the legislature also appropriated frinds for water quality improvements at sewage treatment plants. The legislature went further in 1997, enacting a 2-year moratorium on new and expanding swine facilities throughout the state (not just coastal counties); further increased buffers for residences, streams, and wells; required the Division of Water Quality to adopt odor control standards; required a plan to phase out anaerobic swine lagoons and sprayfields; called for a plan to bring integrators into the management and liability of animal waste; and restricted most waste management systems from 100-year flood plain areas.

In 1998, much of the North Carolina policy attention has shifted from the state level to counties, because the 1997 law allowed for local zoning of large swine farms (those with 600,000 pounds or more of swine, or about 4,400 animal units). In Randolph, Dulpin and other counties, opponents and defenders of swine farms have been pressing their case as county commissioners debate imposition of stricter local regulation of swine farms. ("Randolph Board Sets Stricter Hog Standards," Greensboro News & Record. Mar. 24,1998: BI)

Regulatory proposals. Bills to regulate, or impose stricter regulation on, animal feeding operations are proposed in many states and contain various elements. Proposals vary widely in their coverage and approach, differing in which segment of animal agriculture would be covered by new requirements; size thresholds (covering all operations, those with as few as 50 animal units, or those with no fewer than 3,000, for example); and details of permits, siting, and inspections. They include the following.

In Oklahoma, where public concern about both swine and poultry CAFOs is growing, the House and Senate passed differing versions of regulatory and anti-corporate farm bills. However, in April, the Governor bypassed the legislature by signing emergency rules for the Department of Agriculture to regulate CAFOs. His action made the rules permanent and gave them the force of law, unless supplanted by legislation or other regulation. The new rules require odor abatement plans and approval of building permits before swine and poultry operations begin construction.

Not all states are attempting to strengthen controls. In Mississippi, for example, as part of a moratorium bill enacted in April, the legislature included a provision that would exempt swine farms and other agricultural operations from air pollution permits, despite vigorous lobbying from groups in the state who had sought air pollution control of farms. In West Virginia, a pending bill would provide tax incentives to encourage expansion of the poultry industry. The Vermont legislature approved a bill in April that would revise requirements and permit procedures for large farm operations by eliminating public participation in the permitting process.

The New Hampshire legislature is considering a "right to farm" bill like similar laws in a number of other states.

Box 6. Maryland Debates Animal Waste Impacts on Its Waters

In the summer of 1997, fish kills occurred in certain tributaries of the Chesapeake Bay in Maryland (primarily in the Pocomoke River drainage basin). These fish kills, like some that occurred previously in North Carolina and other coastal waters, were attributed to the presence of Pfiesteria piscicida in the affected waters. Some scientists believe that nutrient enrichment of the waters may play a role in Pfiesteria outbreaks, although the mechanisms and linkages are unclear. Because of the large number of poultry facilities adjacent to the affected Maryland waters, animal feeding operating were targeted for research and management of nutrients.

Maryland took a number of actions to address Pfiesteria-affected waters and nutrient concerns. Citing human health risks, the Governor closed almost all of the estuaries where fish kills were observed to fishing and recreation. The state surveyed agricultural activities in the affected watersheds, centering on the use of best management practices and agricultural nutrient management plans. The state offered financial assistance to encourage farmers to grow cover crops to reduce soil erosion and catch nutrient runoff Maryland became the first state approved by USDA for the Conservation Reserve Enhancement Program (CREP). A blue-ribbon panel made recommendations about reducing nutrient loadings from upland sites generally and from agriculture in particular; responding to public health concerns; and conducting further research and monitoring.

Based on the panel's recommendations, the Maryland Governor presented legislation to the state's 1998 legislative session containing both incentives and mandates to address animal waste problems associated with Pfiesteria. The Governor's bill would require farmers to adopt and implement nutrient management plans and limit nutrient application (fertilizer and manure) to amounts needed for crop uptake, to control the flow of nutrients into state waters. Maryland would be the first state to require such plans for phosphorus, as well as for nitrogen. Farmers would be subject to fines up to $5,000 for noncompliance. The proposal also contained $45 million over 3 years in aid to farmers and tax credits to offset program costs.

While environmentalists supported the Governor's bill (and competing bills that would establish liability for integrators/animal owners), Maryland farmers favored competing legislation that would make controls purely voluntary and would not impose timelines for compliance that they characterized as unreasonable. In March, the Maryland House of Delegates passed a version favored by agribusiness interests, while the Senate passed the Governor's proposal. In midApril, the legislature agreed to a compromise bill that requires farmers to implement runoff control plans but gives them additional time to comply and imposes milder penalties for noncompliance.

35 "Water Pollution: AFOs Would Face Tighter Regulations under EPA Draft Strategy." Daily Environment Reporter. No.44 (Mar. 6, 1998): A7-A8. Mitchell, David J. "New EPA Rules on Farms Draw Fire." St. Louis Post-Dispatch. (Mar. 6, 1998): A13.

36 This section is based on information from a number of sources, including: National Association of State Departments of Agriculture. State Survey on Waste & Manure Management ReguIations. November 1997. 20 p.

37 McElfish, James M., Jr. "State Enforcement Authorities for Polluted Runoff." The Environment Law Reporter News &Analysis. Vol.28, no.4 (April 1998): 10181-10201.

39 "States Tackle Animal Waste Problem to Improve Water Quality." Environmental Science & Technology vol.30, no.12 (1996): 529A-530A.

40 Ison, Chris. "Agency" Lags in Policing Feedlots; Regu1atory Board Accused of Favoring Hog-Farm Oweners." Minneapolis Star-Tribune. (Mar. 8, 1998): IA.

41 Freese, Betsy, and Rod Fee. "Livestock-Hungry, States." Successful Farming, Jan.1994:19-30, 33-35.

42 Hipp,Janie Simnis, "Sustaining the Family' Farm: Old and New Tools for Survival in a World of Contracts and Corporations," Thesis submitted in partial fulfillment of the requirements for the degree of Master of Laws, University of Arkansas School of Law, Aug. 1996. Stout, Jan, "The Missouri Anti-Corporate Farming Act: Reconciling the Interests of the Independent Farmer and the Corporate Farm," 64 University Of Missouri in Kansas City (UMKC) Law Review 835 (Summer, 1996).

43 This section is based on information from a wide variety, of resources, including regional and national newspapers, personal conversations, and State Capital Strategies Alert Services, Issue Analyses (Environment), Feb. 4-Apr. 29, 1998.

44 This discussion is intended to characterize the range of legislative approaches being considered by state legislatures on this topic. Bills described here are proposals pending in states as of April 1998. Some have been enacted and are noted as such. As the legislatures continue to meet, specifics of other current proposals are likely' to change, and it is not possible to predict which ones might be enacted, or what form they might take, when the legislative sessions end.

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