Animal Waste Management and the Environment: Background for Current Issues

98-451 ENR

CRS Report for Congress

Received through the CRS Web

Animal Waste Management and the Environment:

Background for Current Issues

Updated April 26, 1999

Claudia Copeland

Specialist in Environmental Policy

Jeffrey Zinn

Specialist in Natural Resources Policy

Resources, Science, and Industry Division

Congressional Research Service ˜ The Library of Congress

ABSTRACT

Waste from animal agriculture is an increasingly prominent environmental quality issue. This

background report describes the livestock production industry today along with public health

and environmental concerns related to the industry. It summarizes policies and programs of

the Department of Agriculture and the Environmental Protection Agency and recent Clinton

Administration initiatives; state laws and programs concerning animal waste management; and

dialogues on problems and solutions initiated by some segments of this industry. The report

reviews congressional responses to the issues and outlines policy questions likely to shape

congressional action. It will be updated if there is major congressional action or if significant

new information becomes available.

Animal Waste Management and the Environment:

Background for Current Issues

Summary

Waste from animal agriculture is an increasingly prominent environmental quality

issue. Animal waste, especially excessive nutrient concentrations, is being linked to

some environmental problems, especially water pollution The growing number of

sites where degradation related to animal waste has been reported has focused

attention on this problem and led to discussions of possible responses. Three

dimensions make this a complicated challenge for policy makers.

One dimension revolves around both the prevalence of concentrating very large

numbers of animals at farm sites (rather than out in pastures) with greater

concentration of wastes, and industrialization where producers raise animals under

contract. These changes contribute to a perception by many that such large scale

agriculture is increasingly like any other business, and should be regulated in similar

ways to protect public health, especially at the larger facilities. The environmental

quality questions also include what to do with waste from smaller farm operations that

are not regulated under current federal law, and how to address other waste problems,

such as air emissions and odor, that are not currently regulated under federal laws.

A second dimension is the role of government, if any, in responding to the animal

waste management problem. One aspect of these choices is whether the federal

government should build on the regulatory approach of the Clean Water Act and

other environmental protection laws, or rely on agriculture programs that are based

on voluntary participation and incentives to attract participation with local delivery

systems providing technical assistance, cost-sharing, and education. Ongoing efforts

by the Environmental Protection Agency and Department of Agriculture are merging

aspects of both approaches, but many stakeholders remain cautious about these

efforts. A second aspect is determining the federal role as states (and localities)

continue to enact legislation and implement an expanding array of laws and programs.

A third dimension is the role of information about many aspects of animal waste.

On the one hand, a lack of technical information about these complicated problems

and relationships limits discussions of effective responses. At the same time, forces

that oppose agricultural concentration and industrialization for social, philosophical,

or other reasons are using the environmental debates as an avenue for raising their

concerns.

Numerous responses are underway and others are being considered.

Environmental protection advocates who cite possible threats to water quality and

human health have been joined by others with rural social and economic concerns in

pressing for action. Supporters of large-scale commercial agriculture caution that

actions should proceed carefully to avoid needless regulations, higher food costs, and

other adverse effects on individual agricultural enterprises. Congress has held

hearings, briefings, and information sessions on this topic. In the 105th Congress, two

legislative proposals were introduced, but neither bill was enacted. Congressional

attention to these issues in the 106th Congress is possible, especially in connection

with recent Clinton Administration initiatives.

Contents

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Animal Agriculture and Its Waste . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Overview of Animal Agriculture: Status and Trends . . . . . . . . . . . . . . . . . . 3

Concentration and geographic location . . . . . . . . . . . . . . . . . . . . . . . . 3

Vertical integration and market change . . . . . . . . . . . . . . . . . . . . . . . . 5

Waste from Animal Agriculture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Manure as an agricultural asset . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Waste disposal options . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Disposal problems . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Public Health and Environmental Concerns: Water Quality . . . . . . . . . . . 13

Federal Programs and Activities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

Programs for Animal Waste at USDA . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

Animal Feeding Operations and the Clean Water Act . . . . . . . . . . . . . . . . 19

Problems with CAFO regulation . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

Recent Initiatives under the Clean Water Action Plan: The National Animal

Feeding Operations (AFO) Strategy . . . . . . . . . . . . . . . . . . . . . . . . . 22

The final strategy vs. the draft . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

Reactions and response to the strategy . . . . . . . . . . . . . . . . . . . . . . . 25

State Programs and Legislative Activity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

State Laws and Programs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

State Legislative Activity on Animal Waste Issues . . . . . . . . . . . . . . . . . . 32

Moratorium proposals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32

State versus local control . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33

Regulatory proposals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33

Recent Livestock Industry Activities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37

Congressional Response . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39

105th Congress . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39

Administration and interest group views . . . . . . . . . . . . . . . . . . . . . . 41

106th Congress issues . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41

Conclusion: Policy Questions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42

List of Boxes

Box 1. Farm Runoff in California . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Box 2. Animal Agriculture and Odor Problems . . . . . . . . . . . . . . . . . . . . . . . . 15

Box 3. Swine Operations in Iowa . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

Box 4. North Carolina's Experience . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34

Box 5. Maryland Debates Animal Waste Impacts on Its Waters . . . . . . . . . . . 36

List of Tables

Table 1. Per Capita Annual Consumption of Meat, By Major Type . . . . . . . . . . 6

Table 2. Manure Produced by Livestock . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Table 3: Number of Counties where Nutrients Available from Manure

Exceed 100% of Crop System Need . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Animal Waste Management and the

Environment: Background for Current Issues

Introduction

Managing the environmental effects of intensive animal rearing and feeding

operations has long been a problem confronting the livestock industry. These

facilities, which include confined feeding operations and feedlots, are a specialized

part of the livestock production process, largely separate from cropland agriculture.

In recent years, manure and waste-handling and disposal problems from intensive

animal production have begun to receive attention as these facilities increase in size

and the effects of these problems reach beyond the industry to affect others.

A number of forces are at work on this segment of agriculture. These include

changes in the livestock industries themselves -- especially concentration of animals

in larger facilities, because of cost and production quality advantages. The presence

of these types of facilities has led, in some cases, to conflicts between farm operators

and their neighbors over such issues as corporate farming, odors, and air and water

quality.

The U.S. population of animals in livestock production being raised to feed

Americans and other consumers worldwide is very large. The inventory in the most

recently published agricultural census, collected in 1992, included over 77 million

cattle and calves, about 60 million swine, and almost 1 billion broilers. Waste

produced by these animals is a valuable soil amendment and source of nitrogen,

phosphorus, and other crop nutrients, when applied to land in proper amounts (the

traditional waste management approach). But, if not properly used or disposed, or

if applied in amounts that exceed plant needs, animal waste or its residuals can leach

through soil to contaminate ground water or can be transported by runoff to pollute

lakes and streams. Thus, as animal production has intensified and concentrated more

animals on individual farms, a growing challenge for agriculture is finding sufficient

land to dispose of manure, or finding economic alternatives, especially if the supply

of land for disposal is insufficient. The parallel challenge for policymakers is

determining if the environmental impacts of animal waste management are significant

enough to require new remedies and, if so, what strategies are appropriate.

In particular, crop and animal agricultural contributions to water quality

problems are receiving more focused attention from some groups and from

policymakers. For 25 years, the nation has been implementing federal law, the Clean

Water Act, to improve the quality of streams, lakes, and estuaries. Throughout that

time, considerable progress has been made in controlling pollution from the largest,

identifiable industrial and municipal sources. Nevertheless, recent reports by state

environmental agencies indicate that 40% of the nation's rivers and streams assessed

by states (which are only a small portion of all waters) fail to meet applicable water

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quality standards. The largest category of sources now degrading water quality is

crop and animal pollution which contributes to the degradation of 60% of the assessed

waterways that are impaired.1

Most segments of agriculture have been exempt from Clean Water Act

regulation. Concentrated animal feeding operations (CAFOs) are not exempt, but

regulating them and enforcing compliance was not a high priority for federal or state

environmental officials until recently. While there is growing recognition of the need

to implement current law more effectively and perhaps develop new strategies

concerning agriculture's impact on water quality, such policies are resisted by those

who object to expanding environmental regulations and potential costs.

Some interests of agricultural and environmental policy have been coming

together for over a decade, but the process has been a bumpy one. Agricultural and

environmental groups can have trouble communicating with each other because of

differing perceptions about what the problems are and how to view them, differing

concepts of environmental quality and responsibilities to maintain that quality, as well

as differing institutional perspectives.2 The agendas of these groups do not often

coincide. Environmentalists have focused on the various ways that agriculture affects

environmental quality, beyond soil erosion, while agriculturalists worry about how

much response to expanding environmental concerns is enough and whether

responding to environmental concerns threatens the ability of producers to maintain

earnings. However, representatives of both sides now find more common ground

than they did a decade ago.

This report provides background for the current policy debate about animal

waste management. It describes the livestock production industry today and public

health and environmental concerns related to the industry. It summarizes policies and

programs of the Department of Agriculture and the Environmental Protection Agency

and recent Clinton Administration initiatives; state programs concerning animal waste

management and recent state legislative activity; and dialogues on problems and

solutions initiated by some segments of this industry. Finally, it discusses

congressional responses to the issues and outlines policy questions likely to shape

congressional action.

Three points are important themes that emerge from the discussion in this report.

First, the bulk of current policy debate on animal waste issues, both legislative and

regulatory, is occurring in states, and that activity is vigorous and multi-faceted.

Federal attention followed more recently. Second, dimensions of animal waste

problems and solutions (technical and policy) are highly site-specific, which leads to

many questions about balancing roles of government, where broad policies are set,

and the importance of flexibility in policies and programs. Third, recent national

attention to these issues reflects some increase in cooperation between agricultural

1

U.S. Environmental Protection Agency. Office of Water. National Water Quality

Inventory: 1996 Report to Congress. April 1998. EPA841-R-97-008. 570 p. For

information, see: [http://www.epa.gov/305b/].

2

Zinn, Jeffrey and John Blodgett. "Agriculture meets the environment: communicating

perspectives." Journal of Soil and Water Conservation, v. 49, no. 2 (1994): 136-143.

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interests and others outside of it concerning agricultural and environmental issues,

compared with relations of these groups in the recent past.

Besides waste management, several other issues related to animal agriculture

currently are of interest to the public and policymakers. These include meat and

poultry inspection requirements; animal health and welfare concerns ranging from

animal diseases to humane treatment of farm animals (such as production practices

that animal rights activists consider cruel or dangerous to animals) to animal testing

for medical research to human health impacts of hormones and antibiotics in livestock;

and social issues (such as impacts of corporate farming and industrialization on

traditional family farms and demographic changes in rural areas where residential

development becomes a neighbor to agriculture).3 Discussion of these topics is

beyond the scope of this report, but their outcomes, like decisions that address waste

management issues, could affect animal agriculture operations in the future.

Animal Agriculture and Its Waste

Overview of Animal Agriculture: Status and Trends

Livestock includes cattle (beef, dairy and veal), swine (hogs and pigs), poultry

(chicken and turkeys), and sheep and lambs. Livestock is a large component of the

farm economy; cash receipts to the livestock sector in 1997 and 1998 were $93 billion

each year, nearly half of the slightly more than $200 billion for all of agriculture.4 The

populations of animals are very large. The 1992 Census of Agriculture counted over

77 million cattle and calves, about 60 million swine, and almost 1 billion broilers, for

example.5 The inventory of each type of animal gradually shifts in response to

changing market conditions and consumer preferences. Changes in geographic

location of these animals and how they are raised reflect economic considerations,

business relationships, and changing technology. These changes have contributed to

low food protein prices and led to increasing concerns about several topics, including

environmental effects.

Concentration and geographic location. Livestock production continues to

have fewer producers operating at fewer sites. Such concentration offers economies

of scale, and depends increasingly on modern technologies and better information.

This increasing concentration started first in the poultry industry about 40 years ago,

3

See: "Animal Agriculture: Issues for the 106th Congress," CRS Issue Brief IB10021.

4

USDA, Economic Research Service. “Key statistical indicators of the food and fiber sector.”

Agricultural Outlook. March 1999: 33.

5

Two sets of numbers are used to describe herd size. The numbers cited above are examples

of the inventory, the number of animals at any one time. The Census of Agriculture measures

the inventory every 5 years, and USDA’s National Agriculture Statistics Service uses

different techniques to measures it four times each year. A second way to show herd size is

to list the number of animals marketed annually. When the animal’s life cycle is less than a

year, the numbers are larger than the total number of animals. In each year recently, using

this measure, about 100 million swine and about 7.5 billion broilers were marketed.

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and more recently has been occurring at different rates for all other types of livestock.

However, these changes are not uniform across the country; growth is occurring in

some states while decline is evident in others.6 Geographic changes in the swine

industry are the most dramatic and are in the limelight today. During the 5-year

period between 1989 and 1994, swine production grew by 111% in North Carolina,

while it declined by 31% in Ohio and by between 10% and 14% in Michigan, Kansas,

and Wisconsin.7 Since 1994, significant changes reportedly have continued.

The swine inventory stands at around 60 million, and this figure has climbed

about 18% over the past decade.8 During the same period, the number of swine

farms dropped by 72%. The largest farms have grown larger, so that now, less than

1% of farms (with at least 2,000 animals) account for 43% of the inventory. All farms

with an inventory of at least 1,000 head are less than 3% of the farms, but 60% of the

swine are produced on them. The remaining 97% of the farms (raising fewer than

1,000 head) produce only 40% of the inventory. Perhaps more important, states with

rapid growth in overall herd size have higher portions of their herds in very large

operations. For example, almost 80% of swine sales in North Carolina, South

Carolina, and Virginia are from operations with at least 5,000 head, compared to only

16% of sales in traditional producing areas.9

The concentration process has been similar for cattle feed operations, which are

now centered in the Great Plains. In the top 13 producing states, the number of

feedlots has declined by 75% during the past two decades, and the remaining ones

have grown larger. The largest feedlots, which number about 70, each have at least

32,000 head. About 90% of the marketed cattle come from only 5% of the feedlots.

Very large feedlots have become more common in Kansas, Nebraska, and Texas.

Dairy has undergone a similar shift, although the numbers are less dramatic.

Production has grown fastest in the southern and western states, where larger herds

with more than 200 animals are common. In these states, herds with more than 200

cows account for about 90% of all milk production and about one-third of the total

dairy cow inventory. In more traditional producing areas, such as the upper Midwest,

herds with more than 200 cows account for less than 10% of production. Overall, the

6

See: U.S. General Accounting Office. Animal Agriculture: Information on Waste

Management and Water Quality Issues. GAO/RCED-95-200BR. June 1995. This GAO

report contains a series of maps and brief narratives which show changes in the top 10

producing states, and the percent of the national inventory, for types of livestock in differing

time spans between the mid 1970s and early 1990s.

7

Charles Mahtesian. “Battling boss hog.” Governing. Vol. 9, April 1996: 32.

8

USDA, Economic Research Service. “Livestock manure: foe or fertilizer?” Agricultural

Outlook. June 1996: 31. Unless otherwise noted, the data on changes in the components of

the livestock sector are taken from this overview.

9

In his testimony before the Senate Agriculture Committee on April 2, 1998, EPA Assistant

Administrator Robert Perciasepe cited Census of Agriculture data showing that between 1982

and 1992 the average number of swine per swine farm increased by 578% in North Carolina,

by 271% in Arkansas, and by 202% in California and Virginia, while the number of swine

farms in those states declined by 62%, 50%, 54%, and 71% respectively.

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number of dairy farms has dropped over the past decade by 100,000 (to 150,000

total), while the average herd size has increased by more than 50%.

Concentration of livestock production occurred first with poultry, and it is now

the most concentrated segment. Broiler production nearly tripled between 1969 and

1992, while the number of farms with broiler houses dropped by 35%, according to

data compiled by the Senate Agriculture Committee minority staff.10 Firms with more

than 100,000 broilers accounted for 70% of all sales in 1975, but now account for

more than 97% of all sales.

Vertical integration and market change. Growing concentration is an

important part of broader changes in business relationships and marketing in the

livestock sector, which are often referred to as industrialization. Another important

part of industrialization is vertical integration, as farmers enter contracts with

processors, or integrators. Under these contracts, which can vary widely, producers

raise the livestock while integrators actually own the animals, assume marketing risks,

and usually provide medicine, feed and technical expertise, as well. In these

relationships, the producer usually owns the waste. Generally, vertical integration

has increased the volume and certainty of supply and improved the market

characteristics of the livestock. Producers forgo the risks and uncertainties of the

marketplace by becoming contract growers, and as more production comes within

these types of relationships, marketing opportunities may decline for those who do not

choose or are unable to participate. In economic terms, efficiencies are gained for

both producers and integrators at the expense of non-participants.

The degree of integration varies within the livestock sector. Poultry has been

fully integrated, and poultry producers have no real options to being contractors.

Swine gets much of the attention in discussions of industrialization, but it is widely

believed that about 20% of the production currently is under a contract. However,

a recent survey by the National Pork Producers Council found that almost 65% of all

hogs slaughtered in January 1999 were sold through contracts or some other type of

prearranged marketing agreement rather than for a cash price.11 The portion sold

under contract for swine, as for all livestock sectors, is growing. At the same time,

the number of processors that producers can contract with has been shrinking. In the

swine sector, the four largest packers share of the hog slaughter grew to 54% in 1997,

up from 32% in 1980. Change is occurring even more rapidly in the cattle sector,

where the four largest beef packers accounted for 80% of all cattle slaughtered in

1997, which was more than double the 37% in 1980.

Critics and some experts say that these changes have broader community and

social costs that are undesirable. This vigorous debate is explored in animal

agriculture, as well as many other agricultural topics. For example, larger and newer

animal operations are typically characterized as more efficient and less labor intensive.

A University of Missouri Extension Service study was reported to have concluded

10

Senate Committee on Agriculture, Nutrition and Forestry Minority Staff. Animal Waste

Pollution in America: An Emerging National Problem. Dec. 1997.

11

Results of survey reported in The Food and Fiber Letter, Sparks Companies, Inc.

29, 1999: 4.

March

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that traditional independent swine producers create three times as many local jobs as

the larger corporate operations. A study from Virginia Polytechnic Institute

compared the economic impact of raising 5,000 swine in two types of enterprises and

found that independent farmers produce 10% more jobs, 20% more local retail

spending, and 37% more local per capita income.12 Many opponents of

industrialization worry that, when these changes occur, even greater problems may

be associated with social disruptions than with local economic losses.

Markets are changing as well. Total meat consumption per capita (excluding

fish, veal, and lamb) has declined during the past two decades, from more than 189

pounds in 1975 to more than 174 pounds in 1997. But the mix has changed

considerably, with a decline in beef being countered by an increase in poultry, as

shown in the table below.

Table 1. Per Capita Annual Consumption of Meat, By Major Type

(in pounds)

Category

1975

1997

Beef

88.9

63.8

Pork

50.9

45.6

Chicken

40.3

50.9

Turkey

8.6

13.9

Source: USDA, Economic Research Service, National Food Situation, March 1977, and

Agricultural Outlook, March 1999.

The overall livestock sector has grown in this decade, in part to serve expanding

demand for protein in a more affluent world. For example, the U.S. has become the

largest beef-exporting nation in the world, with between 16% and 20% of world trade

in recent years. A decade ago, in 1988, the United States exported under 3% of the

domestic beef production, but by 1998, that portion had risen to 7.5%, and is forecast

to rise to 8.3% in 1999. Swine trade is similar, growing by an annual average of 4%

between 1989 and 1997; the United States now accounts for almost 20% of the

world’s pork exports. In FY1998, meat exports were valued at just over $7 billion,

with poultry accounting for more than $3 billion of that total. But meat exports were

only about one-eighth of the $55 billion in agricultural exports in FY1997.13

Waste from Animal Agriculture

Animal wastes are predominately solid and liquid manures, although they also

include used bedding, spilled feed, dead animals, and a variety of other substances.

12

Both studies are cited in: American Planning Association. Zoning News. Oct. 1996: 1-4.

13

These data are from: Congressional Research Service. U.S. Agricultural Trade: Trends,

Composition, Direction, and Policy. [by Charles Hanrahan and Mary Dunkley], March 1998.

CRS Report 98-253. 73 p.

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Manure production is estimated to be almost 112 million tons (dry matter) annually.14

Production varies not only with the animal type, but also with such factors as feed

ration, health, animal age, and climate. Trends in the livestock sector such as

increased animal confinement (rather than pasturing) and improved feeds have

increased the amount of manure produced per animal and changed the composition.

The larger volume per animal combined with concentration of more animals at a site

compounds storage and disposal difficulties for the farmer. Retention and disposal

of manure is the basis of many animal agriculture conflicts.

Animal waste contains nutrients, including nitrogen, phosphorus, and potassium.

Nutrients can be valuable for crops, but they can cause water quality problems

because of their oxygen-demanding characteristics. Waste can also contain organic

solids, trace heavy metals, salts, bacteria, viruses, other microorganisms, and

sediments. While effects on water quality have received most of the attention, there

is growing interest in airborne transportation and deposition of pollutants as well.

Nutrients have been the focus of interest, as interested parties argue about the benefits

they can provide and the environmental problems they can cause.

Animal types, equalized by weight, yield different volumes of manure and

different amounts of nutrients. The NRCS has estimated the amount of manure

produced on an animal unit equivalent basis for various livestock sectors, as well as

the nutrient content of that manure (see Table 2). This comparison shows that the

waste management challenges are not the same for all types of livestock.

Table 2. Manure Produced by Livestock (lbs per day/1000 lb animal unit)

Livestock

type

Total

Manure

Nitrogen

Phosphorus

Beef

59.1

0.31

0.11

Dairy

80.0

0.45

0.07

Swine

63.1

0.42

0.16

Chickens

(layers)

60.5

0.83

0.31

Chickens

(broilers)

80.0

1.10

0.34

Turkeys

43.6

0.74

0.28

Source: NRCS/RCA Issue Brief 7. Animal Manure Management. Dec. 1995.

Volumes of animal waste are substantial. Estimates indicate that U.S. animal

waste production in 1992 was 13 times greater (on a dry-weight basis) than human

14

Council for Agricultural Science and Technology. Integrated Animal Waste Management.

Task Force Report no. 128, Nov. 1996: 17.

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sanitary waste production.15 Comparisons of human community equivalents with the

waste that herds or flocks of animals produce are illustrative. For example, the

manure produced by a dairy milking 200 cows contains as much nitrogen as the

sewage of a community with 5,000 to 10,000 residents, or the litter removed annually

from a broiler house with 22,000 birds contains as much phosphorus as the sewage

from a community of 6,000 people, according to the USDA’s Natural Resources

Conservation Service (NRCS).16

Considerable disagreement exists over how to characterize the volume of animal

waste in human terms. For example, in congressional testimony in 1998, the National

Pork Producers Council stated that cattle, swine, and poultry feeding operations

produce the equivalent of about 700 pounds of collectable manure per person per

year, and contrasted that figure with other estimates of up to 10,000 pounds per

person. For every pound of nitrogen produced by pigs, the Council said, 2 pounds are

piped into surface waters by public and industrial waste water treatment facilities, and

4 pounds are released into the atmosphere, primarily by internal combustion engines.17

This is one of many areas in the animal waste management debate where various

interests use different data to measure conditions.

From origin to disposal, farmers may manage manure and related wastes in many

different ways, depending on the characteristics of the farm operation and the physical

conditions of the farm. Waste management systems usually include several

components. Manure may be collected at temporary storage facilities until it can be

treated or utilized. Common storage facilities include stacks, ponds, and tanks.

Waste may be treated in many ways to convert it to a more useful resource, usually

by concentrating the beneficial constituents and decreasing the total volume.

Lagoons are the most common holding facility. In an open lagoon, the manure

undergoes continuous anaerobic decomposition and nitrogen is released into the air

while most of the phosphorous settles to the bottom. Operational failure of lagoons

and the resulting waste spills have brought much of the recent critical attention to

animal agriculture, and some have called for phasing out lagoons. In addition, the

waste collected in lagoons has limited value as fertilizer if the cost to apply it exceeds

the value of the nutrients.

Other types of holding and treatment facilities include composters, solid

separators, and settling basins. Holding capacities of storage and treatment facilities

are recommended based on the estimated time period the anticipated volume of waste

may have to be retained. For example, waste should not be spread while the ground

is frozen, or it will be washed into surface waters, so farms in locations where winters

are long need a greater storage capacity. The management process ends when the

15

U.S. Environmental Protection Agency. "Executive Summary, Feedlots Point Source

Category Study, Preliminary Data Summary." Dec. 31, 1998: 14.

16

Natural Resources Conservation Service. Animal Manure Management. NRCS/RCA Issue

Brief 7, Dec. 1995. No pagination.

17

Testimony of Jim Moseley, Representing the National Pork Producers Council before the

Senate Committee on Agriculture, Nutrition, and Forestry, April 2, 1998: 7.

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waste is transferred and used. The most common use, by far, is to spread it across the

farm fields as a soil amendment and a nutrient supplement. How it is spread may have

important environmental implications; for example, spray irrigation has been

associated with environmental problems in some situations, while cultivation into the

soil generally minimizes the potential for such problems.

Not all the manure produced by livestock can be collected so that its disposal can

be managed. The 1996 Council for Agricultural Science and Technology (CAST)

study estimates that almost 62 million tons, 55% of the total, can be collected. Much

of the remainder is directly deposited in range and pastures. In discussing possible

environmental harm from livestock wastes, whether the magnitude of the problem

should be based on the total amount produced, or just the amount that is collectable,

is subject to dispute. Some in industry say that collectable amounts are most

important, since waste at confined feeding operations is collectable, and farmers can

manage the disposal of these wastes to lessen environmental impact. Others say that

all waste, including that which is deposited on pastureland, has potential for

environmental harm.

Manure as an agricultural asset. Manure can be a valuable asset for

agriculture, generally as a supplement to or partial substitute for commercial

fertilizers. This value can best be determined when manure is considered in the

broader context of overall nutrient management. Manure nutrient values, however,

vary considerably and any supply of manure must be assessed for determining

application rates. Commercial chemical fertilizer, by contrast, has consistent content,

with that information supplied by the manufacturer. Also, nutrients from manure are

not all immediately available. Guidelines on the rate of release have been developed

for nitrogen, based on the source and form of the manure. NRCS (and probably

others) has developed national design standards for many aspects of managing

manure, and state regulations are being developed and implemented in a growing

number of locations as well (see discussion below of State Programs and Legislative

Activities).

A better way to view manure is as a soil amendment that improves many of the

physical and chemical properties, as well as the nutrient values, of soil by adding

organic material and improving soil structure and the ability to hold water and retain

nutrients. These benefits are of considerable value. CAST reported in 1996 that

animal waste can supply an average of 15% of the nitrogen and 42% of the

phosphorus needed by crops. The study states that the total potential value of manure

as fertilizer approaches $3.4 billion annually. This figure does not include the

economic benefits of improved soil quality, decreased runoff and soil erosion

potential, and improved soil moisture, or offsetting costs associated with processing,

transportation, and management.

Waste disposal options. Many options exist for disposing of animal waste, but

spreading has always been and remains the preferred option throughout the farm

community. If all the collectable animal waste could be added evenly to all farmland

to help meet crop nutrient requirements, there would be no waste disposal problem.

An analogy is rainfall--if the total volume of rain fell equally across the country and

evenly throughout the year, supplies would exceed demand. Because it does not, the

CRS-10

country has developed extensive public works projects to hold and distribute water

in a volume and pattern that meets various demands.

Animal waste also accumulates unequally across the country, probably far more

unequally than rainfall. The NRCS explored this disparity in a recent study that used

simulations to examine “the degree to which nutrients in manure from confined

livestock operations could potentially satisfy crop nutrient requirements” if all manure

was used on crops. The study, which assumed that nutrients were spread in

acceptable manner on available land, compared crop nutrient uptake and removal with

nutrients available from manure in each of the 3,056 counties in the contiguous United

States for three crop systems. Results are shown in Table 3.

Table 3: Number of Counties where Nutrients Available from Manure

Exceed 100% of Crop System Need

Crop System

Nitrogen

Phosphorus

Non legume crops and hay

266

485

Non legume crops and hay, and pasture

50

134

Non legume and legume crops and hay, and pasture

35

107

Source: NRCS. Nutrients Available from Livestock Manure Relative to Crop Growth

Requirements. February, 1998, 8 p. plus maps and appendices. Resource Assessment and Strategic

Planning Working Paper 98-1.

Alternatives for disposing of manure other than by land application are receiving

increased attention. Many of these options have some promise in some situations, but

none can be viewed as a “silver bullet” that can solve most problems in most

locations. Many have large initial investment costs. The constituents and moisture

content of the manure are important qualities in determining which disposal

techniques to use. Shipping costs constrain many options because manure is of low

economic value on a volume or weight basis, so it is uneconomic to ship it long

distances unless it can be concentrated so as to decrease the volume or increase the

value. Scientists have looked at ways to increase the value, while economists have

prepared scenarios of the maximum shipping distances, given more specific

characteristics.18

Options under study include composting, burning, and biotech changes to feed

that alter the characteristics of the waste.19 Composting uses microorganisms to turn

18

On February 25, 1999 Perdue, the largest poultry producer in Maryland, announced that it

would be developing a facility to turn as much as 120,000 tons of poultry litter into fertilizer

pellets annually. The project, which will cost between $5 and $6 million, was characterized

by Purdue as an effort to give farmers an alternative means of disposal. Washington Post,

February 25, 1999, p. B1 and B5.

19

Information in this paragraph is taken largely from presentations at a forum on phosphorus

and water quality in November 1997, convened by Representatives Wayne Gilchrest and

Charlie Stenholm. These options were discussed in the context of poultry waste, and its

(continued...)

CRS-11

wastes into relatively stable and odorless material that can be used or sold as a soil

amendment. Burning can be used to generate energy, but there are limitations. For

example, one ton of poultry litter contains about the same amount of energy as 80

gallons of home heating oil, but has the same volume as about 500 gallons. The

residue of burned manure is about 10% of the original volume, and contains little of

the original nitrogen and sulfur but most of the phosphorus that was initially present.

A biochemical change that has received considerable attention is adding phytase (an

enzyme) to feed. Some, but not all studies have shown that it removes 25% to 40%

of the phosphorus and 10% of the nitrogen excreted by causing the animals to use

nutrients more efficiently. Further, the nitrogen is volatilized and lost to the

atmosphere, but it may be redeposited elsewhere. (See discussion of atmospheric

deposition on page 15.) Phytase does have a cost and must be added to feed. Still

other options include converting the waste to fuel and energy, using industrial

processes to convert the waste to other useful products, and using it as a feed

supplement.

There are some significant success stories of manure management on farms for

many of the options to using manure as a soil amendment. Ideas that go beyond these

successes for managing animal wastes abound; examples that have been publicized

recently are based on using duck weed or zebra mussels. But each approach is hard

to apply widely because of some combination of physical limitations, high costs, lack

of knowledge or management skills by the producer, unfamiliar or untested

technologies, and a host of other factors. The costs and difficulties of storing and

handling may be the most common constraints for these options.

Disposal problems. Even when farmers control adequate land, proper disposal

in ways that will benefit crops and not harm the environment can still be a problem.

The manure must be assessed for its nutrient value, then transported to the site, and

spread at the proper amounts and at the proper time; each of these steps is an expense

for farmers. (If these steps are not taken, any harm that results to the environment has

costs, but mainly for the affected public and not necessarily for the individual

farmers.) Inherent in these activities is a proper understanding of the value of manure.

This understanding can reduce the risk of contaminating surface and ground water.

Producers usually determine application rates based on crop needs for nitrogen.

But if application rates supply the needed nitrogen, in some instances the amount of

phosphorus or potassium will be excessive for crop needs, especially after several

successive years of application. Phosphorus can build up over time in soil, and this

buildup is thought by some scientists to be a source of conditions that led to the

Pfiesteria problems in Chesapeake Bay. (See Box 5, page 36). The National

Research Council has stated that “the use of phosphorus as the criterion for

determining manure loading rates may be appropriate, particularly in regions

containing surface waters where accelerated eutrophication can occur.”20 This

19

(...continued)

possible contribution to Pfiesteria problems in some drainage areas along the eastern shore

of Chesapeake Bay.

20

National Research Council, Board on Agriculture. Soil and Water Quality: An Agenda for

(continued...)

CRS-12

criterion is recommended because phosphorus is the limiting nutrient in most fresh

water bodies.

The data from the NRCS study shown in Table 3 indicate there is the potential

for excessive nutrients in some locations. This report includes maps showing the

counties for each simulation. However, the analysis does not convey a precise picture

since county boundaries are not barriers to moving nutrients, nor is all cropland

available for manure disposal, nor are any of the separate crop systems used on all

cropland in any county. The definition of what is in excess will depend on the actual

crops grown. Also, this data set is a snapshot that does not indicate change over time.

An important conclusion of this study is that counties with a nitrogen excess have

excess phosphorus as well, while the reverse is not necessarily true. While these data

are about potential rather than actual nutrient amounts, and do not account for the

ways that nutrients might be managed or used in alternative ways, the analysis does

indicate where problems are most likely to arise. Those counties are largely

concentrated in the southern tier of states from the Carolinas to California, with a few

counties with excess phosphorus in the upper Midwest, western Nebraska, and

eastern Colorado -- a pattern that is similar to the distribution of animal inventories

and the largest farms.

Disposal has become more difficult for producers because of two converging

trends within the livestock industry: (1) operations are larger which means that there

is more waste at a single site; and (2) less land is under the control of these operators.

For example, the largest 1% of the beef feedlots produce 71% of the fed beef, but

control only 2% of the cropland on fed beef farms, while the smallest 92% of feedlots

produce only 10% of the total but control 75% of the cropland.21 These relationships

between herd size and available land suggest that many of the largest farms lack the

capacity to manage their manure on the land under their direct control. These

difficulties have been compounded by increased concerns about water quality and

other problems that may originate with intense and concentrated livestock farms.

Livestock waste problems have led to some stricter state environmental

regulations and the threat of more to come. Agricultural interests argue that these

should be unnecessary because it is in the farmers’ own interest to maintain a healthy

environment. They also argue that the largest farms should have the capital and

knowledge to effectively adopt appropriate waste management technologies. But

operators of smaller farms, though likely to pose smaller problems individually (but

not necessarily cumulatively), may be less likely to have the knowledge and the

capital, and at least one analyst has argued that federal farm program assistance

should be targeted to help this segment of the farm population. According to a recent

review of the livestock sector in Agricultural Outlook, evidence suggests livestock

producers have improved their environmental protection efforts. Based on

experiences in North Carolina, where concentration has occurred rapidly, a large

20

(...continued)

Agriculture. (1993): 407.

21

Letson, David and Noel Gollehon. “Confined animal production and the manure problem."

Choices. Third Quarter, 1996: 19.

CRS-13

portion of violations were found to occur on smaller livestock operations.22 An

explanation for such a pattern of violations is probably tied to some combination of

economic opportunities, management skills, knowledge and training, and age and

condition of facilities.

Manure management problems appear less substantial in this country than in

some parts of Europe, especially the low countries. The process of recognition and

response there merits review for possible lessons as the United States tries to explore

options for addressing this problem. For example, the Netherlands has taken

aggressive action to address manure management.23 Phosphorus saturation is

generally believed to be the most serious problem. Programs to stabilize manure

production and application started in 1987, and since 1991, manure application rates

have been declining. The Dutch policy goal is to reach an equilibrium fertilization rate

by 2010, when the supply of nutrients from manure plus fertilizer are to be in balance

with crop utilization and other losses. Programs designed for the characteristics of

each region are important to this effort. Legislation that would impose fines on

farmers for excess nutrient levels in the soil was being considered as this article was

being prepared, and the authors of the article concluded that most producers would

rather pay the fines for small exceedances rather than risk lowering their crop

production.

Public Health and Environmental Concerns: Water Quality

According to limited data submitted by states and compiled by the Environmental

Protection Agency (EPA), agriculture is now the leading source of water quality

impairments in United States rivers and lakes, affecting 70% of impaired river miles

and 48% of impaired lake acres. In estuaries, agriculture affects nearly 30% of

impaired acres.24 In 22 states that specifically assessed impacts of agricultural

activities on rivers and streams, animal operations (feedlots and animal holding areas)

were estimated to be the principal pollutant source in 20% of waters impaired by

agricultural practices, impacting 35,000 river miles; overall, they were the third

leading agricultural source affecting water quality, after nonirrigated crop production

and irrigated crop production.25

22

USDA, Economic Research Service. “Livestock manure: foe or fertilizer.” Agricultural

Outlook. June 1996: 35.

23

Information in this paragraph is summarized from: Van der Molen, Diederik T., Auke

Breeuwsma and Paul C. Boers. “Agricultural nutrient losses to surface waters in the

Netherlands: impact, strategies, and perspectives.” Journal of Environmental Quality. Vol

27 (1998): 4-11.

24

National Water Quality Inventory: 1996 Report to Congress. These water quality data are

limited, because they represent only conditions in waters assessed by states but do not include

all water bodies. For this report, states surveyed 19% of river miles, 40% of lake acres, and

72% of estuaries. 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 operations. The data should be used with caution.

25

Statement of Michael Cook, U.S. EPA. In: U.S. Congress. Committee on Agriculture.

(continued...)

CRS-14

Animal feeding operations

Box 1. Farm Runoff in California

have been shown to cause

significant environmental and

In California, a 50-square-mile area of western

public

health

problems,

San Bernardino and Riverside counties is home

including nutrient enrichment of

to 300,000 dairy cows. At 6,000 cows per

surface and ground waters,

square mile, the area has the nation's densest

contamination of drinking water

concentration of dairy cows. During severe

supplies, fish kills, and odors.

rain storms, manure and water flow off the

Animal waste, if not properly

farms and travel down the Santa Ana River.

managed, can be transported by

Higher than normal runoff from El Niño storms

water over the surface of

in 1998 (estimated to be the worst in 25 years)

agricultural land to nearby lakes

reportedly resulted in fish kills in lakes fed by

and streams.

There, the

the Santa Ana River, as well as elevated nitrate

nutrients in animal waste can

levels both in surface and ground waters.

reduce the oxygen content of

Officials in nearby Orange County were

the water, leading to algae

concerned that farm runoff would elevate

blooms, fish kills, and threats to

nitrate levels in ground water above federal

other wildlife. Solids deposited

health standards. (Source: McCarthy, Jack.

in water bodies can accelerate

"Manure Flow Raises Worry." The Presseutrophication by releasing

Enterprise, Riverside, CA. Apr. 18, 1998: B3.)

nutrients over extended periods.

Leaching from manure storage

lagoons and percolation through the soil of fields when animal waste is applied has

resulted in nutrient contamination of groundwater resources, and also can contribute

to surface water pollution through subsurface groundwater recharge of lakes and

streams.

Although animal waste is not the only source of pathogens in surface waters, it

has been responsible for shellfish contamination in some coastal waters. Closure of

shellfish beds and recreational beaches can be necessitated by high fecal coliform

counts, both from animal waste runoff and discharge of improperly treated sewage.

Some animal diseases also can be transmitted to humans through contact with animal

feces. Concern about the health effects of growing antibiotic resistence, fostered in

part by widespread use of drugs in animal agriculture, is starting to attract more

attention.26

Catastrophic events, such as spills from livestock waste lagoons, have occurred

in nearly every state; one of the most famous was in North Carolina in 1995. (See

Box 4, page 34) An incident of fish kills that occurred in Maryland coastal waters

in 1997 was attributed by some scientists, at least in part, to nutrients in poultry

25

(...continued)

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, 105th Congress, 2d Session. May 13, 1998:

60. Serial No. 105-50.

26

Committee on Drug Use in Food Animals, Board on Agriculture and Food and Nutrition

Board. The Use of Drugs in Food Animals: Benefits and Risks. Washington, D.C., National

Research Council, 1999. 210 p.

CRS-15

wastes discharged into the affected waters that stimulated a toxic microbe, Pfiesteria

piscicida. (See Box 5, page 36).27

Atmospheric deposition of nitrogen from animal operations is also an

environmental concern. This occurs when nitrogen in liquid waste is volatilized as

ammonia nitrogen (NH3) from anaerobic (oxygen-deprived) lagoons, causing

ammonia to evaporate. Volatilization also occurs after land application. Once in the

atmosphere, it is converted to forms which are redeposited within 50-100 miles on

land or in surface waters. These forms of nitrogen are water-soluble, meaning the

nitrogen can adversely affect water quality much like nitrogen fertilizer if it enters a

stream as direct surface runoff. Data from some locations is beginning to demonstrate

the dimensions of this problem. For example, in North Carolina, where concentration

and numbers of livestock have increased dramatically, data indicate that ammonia

emissions in 1995 from swine operations, mainly in the southeast portion of the state,

were 50% of the state total of nitrogen oxides-nitrogen emissions from either point

sources or highway mobile sources.28

Box 2. Animal Agriculture and Odor Problems

Odor is the most controversial nuisance problem associated with feedlots.

Complaints about odor come from downwind neighbors, for the most part. Odors

emanating from livestock production are generally related to manure handling, but

other potential odor sources include wet feed and the decomposition of dead

animals. The odors consist of gases, such as ammonia, hydrogen sulfide, methane,

and organic compounds produced during decomposition of manure. Although

some of the gases are known to be harmful or toxic in large amounts, the principal

effect upon humans is annoyance or nuisance. The rules and regulations

controlling livestock odors and air emissions are based primarily on the concept of

nuisance, not the regulation of pollution per se under the Clean Air Act or other

federal environmental laws. Solutions to odor problems generally involve

setbacks, buffers, and other land use planning tools which are applied at state and

local levels. The pork industry, in particular, appears to be working aggressively

to address odor concerns.

Agricultural interests, when discussing public health and environmental concerns,

emphasize that most farmers are diligent stewards of the environment, since they, like

their neighbors, directly experience adverse impacts on water and air quality. Part of

the problem is perception. For example, odor that may bother neighbors who are not

involved in livestock agriculture may be viewed as an acceptable side effect (if

recognized at all) by livestock producers. Like their non-farming neighbors and critics

of animal agriculture operations, farm groups claim they are concerned with

27

For additional information, see CRS Report 97-1047, Pfiesteria and Related Harmful

Blooms: Natural Resource and Human Health Concerns.

28

Aneja, Viney P., George C. Murray, James Southerland. "Atmospheric nitrogen compounds:

emissions, transport, transformation, deposition, and assessment." EM, vol. 4, April 1998:

22-25.

CRS-16

identifying operators — whether big or small — whose activities do not fully protect

existing resources. However, for many farmers, the loss of agricultural nutrients in

runoff (beyond nutrient amounts needed for crop production) is not a consideration

that they typically take into account in their operations. In part, this may occur if they

lack information about what amounts of nutrients (manure and fertilizer) are needed

by plants and thus may assume that using more is preferable to using less. Farmers

become concerned with off-site impacts which affect them economically, i.e., if the

farmer is fined for a spill or is forced to purchase equipment to manage manure.

Federal Programs and Activities

Programs for Animal Waste at USDA

Agriculture resource conservation programs are voluntary and rely on the

combination of education, technical assistance, and cost sharing payments to attract

participation. Little information is available, however, on the cost-effectiveness of

this approach -- whether owners of the lands and resources that could benefit most

are participating in these programs. This question of who participates was less of an

issue when conservation programs revolved around helping landowners to protect

their soil and water resources so that they could increase their productivity and

profits. But as these programs have expanded to address resource degradation and

off-site environmental problems, as well, non-agricultural interests have raised more

questions about program effectiveness in reaching the right land (and landowners) and

addressing the most pressing problems.

Agricultural interests contend that much is being accomplished, especially with

the shifts in policy in the 1996 farm bill (P.L. 104-127, the Federal Agricultural

Improvement and Reform Act of 1996; the FAIR Act), which have led to active State

Technical Committees and “locally led conservation” to help ensure that the most

pressing problems are identified locally and receive priority attention at a state level.

Decisions that were largely made in Washington about priority problems and priority

areas in which to concentrate program efforts are now being made at the state level,

based on local involvement and input from a wide range of agricultural and other

interests. But this system is less than 3 years old, and there are few results to report.

Until the 1996 farm bill was enacted, no conservation programs dealt explicitly

with animal waste management issues, although many were used to address some

kinds of problems that might originate with animal waste, especially water quality

problems. It is difficult to discern what portion of the extensive USDA water quality

protection effort can be tied back to addressing animal waste management questions,

or what those programs have accomplished. However, one review of conservation

spending for selected programs between FY92 and FY94 shows that $89 million (out

of more than $525 million) was provided in cost sharing assistance to farmers for

manure management, primarily to build animal waste containment structures.29

29

U.S. General Accounting Office. “Briefing section 5: USDA conservation programs

providing cost sharing assistance for animal waste management.” Animal Agriculture:

(continued...)

CRS-17

The 1996 farm bill created the Environmental Quality Incentive Program (EQIP).

EQIP is a mandatory spending program authorized to receive $200 million a year. It

is the only conservation program to explicitly identify meeting the needs of animal

agriculture as a stated program purpose. Half the EQIP funds are to address

problems associated with livestock production. The law directs the program to

maximize environmental benefits in the installation of structural and land management

practices per dollar expended. The funds provide assistance through a combination

of cost sharing (up to 75% of project costs), technical assistance, and education. A

plan is required to participate. Payments per contract are limited to $10,000 annually

and to $50,000 over the life of a contract (5 to 10 years). However, exceptions to the

annual limit may be granted. A majority of the funds (70% to 80%) are to be spent

in priority areas, which are identified by each state based on an assessment of their

most pressing conservation needs. This is a major change from older conservation

programs, where funds and technical assistance were made available more uniformly

across the country.

EQIP funds to be spent on livestock production favor smaller operations, as the

law prohibits cost share funds from being used for construction of animal waste

management facilities on “large farms.” Congress left the definition of large farms to

USDA, which chose to use the EPA definition of CAFOs (see pages 19-20), with

some flexibility for adjustment at the state level. The Department has estimated that

half the $100 million for animal issues annually ($50 million) will be spent on animal

waste management facilities, so this limitation applies to a significant component of

the program.

Final regulations for EQIP were released in May 1997. Initial contracts were

signed during the early fall of 1997. There is a very limited record of accomplishment

as yet based on an evaluation of activities in 12 states and 35 counties. However, the

program is meeting a demand; according to USDA, as producers sought almost three

times the available funds during FY1997, and in FY1998, only 36% of the

applications could be funded. The Clinton Administration has proposed increasing

annual funding to $300 million in its FY1999 and FY2000 budget submissions, but

the request has not included a statement about how specifically additional funds

would be spent. Congress rejected this increase in FY1999, instead reducing funding

to $174 million.

The Conservation Reserve Program (CRP) is less directly tied to animal waste

management, but can be important in several ways. It is used to retire highly erodible

and environmentally sensitive lands from production for 10 years (or longer under

certain circumstances). Successful bidders receive annual rental payments, and also

cost sharing and technical assistance to plant conserving vegetation. The program has

an enrollment cap of 36.4 million acres (almost 10% of the country’s cropland) and

currently has more than 30 million acres enrolled. In general, producers bid to enter

the program during enrollment periods. Bids are compared using an environmental

benefits index that includes six variables to ensure the maximum environmental

29

(...continued)

Information on Waste Management and Water Quality Issues. GAO/RCED-95-200BR June

1995: 72-81.

CRS-18

benefits for the funds expended. One of those is water quality, so animal waste

concerns may be addressed indirectly, for a few bidders, through the credit given

under this factor.

CRP has two sub-programs, or initiatives, that may be more helpful in addressing

animal waste issues. One is the Conservation Reserve Enhancement Program (CREP)

where states can supplement the federal program with a more focused state effort that

provides more money per acre to participants. Maryland was the first state to have

a CREP approved, in the fall of 1997, to address Pfiesteria-related issues on the

state's eastern shore of Chesapeake Bay. CREPs have now been approved for

Minnesota, Illinois, New York, Oregon, Washington, and North Carolina. These

states are using this program to address a number of water quality concerns, including

restoration of fish habitat and reduction of nutrients and sediment inputs in

watersheds. Agreements also are being developed in several other states. The second

initiative would protect 2 million miles of water bodies using buffers by 2002. The

most recent data show that a total of about 765,000 acres has been enrolled under

both initiatives. These initiatives are intended to protect water quality from numerous

problem sources, including animal wastes.

USDA initiated a Water Quality Program in 1990, with three other federal

agencies (EPA and the Departments of the Interior and of Commerce), to promote

sound farm production practices and protect waters from contamination originating

with agriculture. Farm chemicals and waste products, which can include animal

wastes, have been the focus of this effort. Through 1996, an annual average of about

$100 million was being spent by several agencies at USDA on this initiative. It has

been implemented through demonstration and watershed projects that include

research, information, and assistance components. This is a recent effort that builds

on a long history of interest in water quality. In this and earlier efforts, animal waste

has not been a focus, but the nutrients from animal waste sometimes have been

considered. Some observations on this initiative, which generally supports the

traditional approaches for assisting farmers, were offered by the Economic Research

Service after examining these water quality programs.30

C

C

C

C

C

C

30

Voluntary programs are most likely to succeed where farmers recognize that

agriculture contributes to local water quality problems.

Voluntary programs are more likely to succeed where recommended alternative

practices are likely to produce economic benefits.

Cost-effectiveness is enhanced by targeting to and within watersheds.

Flexible cost share programs to support conservation practices are more efficient

than those with fixed rates or limited to few practices.

Better local information on economic and physical performance of recommended

practices increases acceptance and participation.

More attention to monitoring and project evaluation could help to improve these

programs.

USDA, Economic Research Service. “Chapter 6.2: water quality programs.” Agricultural

Resources and Environmental Indicators, 1996-97. (1997): 281-83.

CRS-19

USDA also has undertaken a number of activities to more specifically address

the animal waste issue. They build on past water quality initiatives, but do not appear

to reorient them. Many of these activities, such as reviewing nutrient management

policies and technical standards, working with EPA to develop a unified national

strategy for CAFOs, and participating in the National Environmental Dialogue on

Pork Production convened by America’s Clean Water Foundation have been

completed or have moved forward during the past year (see discussion on page 37)

USDA also established an Air Quality Task Force (as required by the 1996 farm

bill) and in 1998 signed a Memorandum of Understanding (MOU) with EPA to

coordinate efforts to address air quality issues. While animal agriculture is not

specifically mentioned in the MOU, several broad areas of cooperation are identified

in which animal agriculture is likely to play a role.

Animal Feeding Operations and the Clean Water Act

Much of agriculture is not directly subject to the Clean Water Act (CWA), the

federal law that governs the quality of United States rivers, lakes, estuaries, and

coastal waters. The Act's traditional focus has been on controlling wastewater from

manufacturing and other industrial facilities, termed point sources. Most agricultural

activities are considered to be nonpoint sources of pollution, since they do not

discharge wastes from clearly identifiable pipes, outfalls, or similar conveyances.

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. Nonpoint sources are not required to obtain

discharge permits. Consequently, agricultural and other nonpoint sources are not

subject to the compliance and enforcement regime that applies to point sources.

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 represent the largest remaining water pollution problem affecting United

States waters. To begin to address these issues, the 1987 CWA amendments directed

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 state nonpoint pollution programs are addressing

agricultural runoff in various ways, including technical and financial assistance.31

Large animal feeding operations are an exception to the general approach to

agriculture in the CWA. Since 1972 (P.L. 92-500), the CWA has defined CAFOs as

point rather than nonpoint sources. They are subject to the Act's prohibition against

discharging pollutants into waters of the United States without a permit. Thus,

CAFOs are treated in a similar manner to other industrial sources of pollution, such

as factories and municipal sewage treatment plants. The Act is administered by EPA,

and in 1974 and 1976, EPA issued regulations defining the term CAFO for purposes

31

U.S. Environmental Protection Agency. Section 319 Success Stories: Volume II.

Highlights of State and Tribal Nonpoint Source Programs. EPA 841-R-97-001. Oct. 1997.

213 p.

CRS-20

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 permit rules,

an AFO is a CAFO, and thus subject to EPA rules, if it meets all of the following

criteria:

C

C

C

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 units 32 (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.33

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 those caused by the worst 24hour 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 29 states 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

32

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 regulations cover 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).

33

Illustrating the concentration that has occurred in the animal agriculture sector are changes

over time in the number of CAFOs. When EPA's current CAFO regulations were proposed

in 1975, USDA analyzed the potential impacts. It 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.

CRS-21

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 all 29 coastal states, and livestock and poultry producers there will begin to see

actual requirements in the near future. The law and the implementing regulations do

not specify 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.

C

Fewer than 30% of the CAFOs with over 1,000 animal units had or have CWA

permits today (i.e., 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 1995.34

Another factor is disputes between regulators and agricultural operators on

whether particular facilities meet the regulatory threshold, such as whether the

regulations apply to feedlots that claim to have no discharge. Many states treat

animal feeding operations as non-discharging facilities (thus not requiring

permits or water quality monitoring) on the premise that lagoons do not leak and

that nutrients in land-sprayed waste are fully taken up by crops.

C

Disputes also arose and 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.

C

Federal regulations and guidelines contain no requirement for nutrient or manure

management plans. Most experts hold that plans which concern applying

manure at rates necessary for crops to utilize nutrients efficiently, without excess

runoff or leaching, can minimize damage to groundwater and surface water. The

federal CAFO rules cover manure spreading on-site, through the "no-discharge"

standard, but do not regulate spreading once the manure leaves the property

where it was generated.

34

Parry, Roberta. "Agricultural phosphorus and water quality: a U.S. Environmental

Protection Agency perspective." Journal of Environmental Quality. Vol. 27, no. 2 (1998):

258.

CRS-22

C

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.

Recent Initiatives under the Clean Water Action Plan: The National

Animal Feeding Operations (AFO) Strategy

EPA has not lacked authority to address water quality problems associated with

animal feeding operations, but doing so was not an apparent priority.35 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, but with few implementation

details.

Several events combined to raise the priority of these topics. One was increasing

attention to pollution incidents resulting from or believed 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.36 A third came

in October 1997, the 25th anniversary of the Clean Water Act, when Vice President

Gore announced an initiative to address the nation's remaining water quality problems.

He directed EPA and other federal agencies to develop an Action Plan to improve and

strengthen water pollution control efforts across the country. That plan, released in

February 1998, identified controlling polluted runoff as one of the biggest remaining

water quality challenges and focused on agriculture's contributions.37

In September 1998 EPA and USDA jointly proposed a major program to

implement the Clean Water Action Plan: a draft unified national strategy for animal

feeding operations to minimize the water quality and public health impacts of AFOs.

Following a 120-day public comment period that included 11 "listening sessions"

around the country, the two agencies issued a final AFO strategy March 9, 1999.38

35

CWA section 304(b) requires EPA to review and, if appropriate, revise effluent limitation

guidelines at least annually. The CAFO standards have not been revised since they were

promulgated in the mid-1970s.

36

The lawsuits address federal and state implementation of CWA §303(d), which requires

states to identify and list waters not meeting water quality standards, then establish total

maximum daily loads (TMDLs) to allocate loadings of pollutants in those waters. For

information, see CRS Report 97-831, Clean Water Act and Total Maximum Daily Loads

(TMDLs) of Pollutants.

37

U.S. Environmental Protection Agency, U.S. Department of Agriculture. Clean Water

Action Plan: Restoring and Protecting America's Waters. Feb. 14, 1998. 1 vol. See:

http://www.cleanwater.gov. For additional information, see CRS Report 98-150, The Clean

Water Action Plan: Background and Early Implementation.

38

U.S. Department of Agriculture, U.S. Environmental Protection Agency. "Unified National

(continued...)

CRS-23

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.39

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 site-specific Comprehensive Nutrient

Management Plans (CNMPs) by 2009. 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 to implement CNMPs, and it discusses additional resources in the

Administration's FY2000 budget to be directed at such assistance.40

The strategy views regulatory programs as complementary to voluntary

approaches that will apply to 95% of AFOs. Under existing CWA authority, the

strategy says that the NPDES permit program will be used to address the relatively

small number of AFOs that cause water quality or public health problems or that pose

a significant risk to water quality or public health. It identifies the following priorities

for permitting and enforcement:

38

(...continued)

Strategy for Animal Feeding Operations." March 9, 1999. 46 p. Text of the strategy is

available at [http://www.epa.gov/owm/afo.htm].

39

Prior to issuance of the national AFO strategy in March 1998, EPA released a compliance

assurance implementation plan for CAFOs to enhance compliance with existing CAFO

requirements. It includes elements to increase compliance assistance to operators, strengthen

federal-state enforcement partnerships, and strengthen federal and state compliance monitoring

programs. Text is available at: [http://es.epa.gov/oeca/strategy.html]. This plan is

incorporated in the March 1999 national strategy. Ibid.: 36-37.

40

The President's FY2000 budget requests an additional $126 million (for $300 million total)

for the EQIP program and $20 million in USDA assistance to existing AFOs for development

or revision of CNMPs. 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

asks for $200 million for this grant program for FY2000 and also proposes to allow states to

use up to $160 million of clean water State Revolving Fund monies (generally limited to

municipal wastewater treatment projects) as grants for nonpoint source projects.

CRS-24

! Large facilities (those with greater than 1,000 animal units) which produce

quantities of manure than 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 collection of facilities with fewer than 1,000

animal units that, based on water quality monitoring, are contributing

significantly to impairment of a water body 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 at least one of three

priority conditions 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 watersheds with vulnerable waters by 2001 and all other CAFOs by 2003.

Permitting will occur in two phases. First, between 2000 and 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. By August 1999,

EPA will issue permitting guidance and model permits as assistance to states.

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 to revise the effluent

guidelines for poultry and swine by December 2001 and for beef and dairy cattle by

December 2002. In the second phase of NPDES permitting, from 2005 to 2010, 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 final strategy vs. the draft. The final AFO national strategy is similar to

the September 1998 draft, but has two key additions. First, it differs from the draft

in how it addresses corporate integrators, owners of livestock that contract out to

farmers to raise the animals or poultry. The final strategy recommends a copermitting 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 extend to the corporate owner that exercises

substantial operational control over a CAFO, as well as the farmer. Such copermitting would be new in the field of federal environmental regulation.

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 including formal requirements in permit

CRS-25

programs. 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.

In another change from the draft, the final strategy allows states that can show

they meet the requirements of the NPDES program to be recognized by EPA as

functionally equivalent to requirements of the federal program. 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 (see the

following section of this report, State Programs and Legislative Activity). States will

have to go through a review and public notice in order to have their programs

recognized as NPDES equivalent. EPA promises in the strategy to act on program

proposals within 45 days so that states can meet the goal of issuing permits for large

CAFOs by January 2000. The early reaction of state officials to this part of the

strategy was positive, although they said that the details of demonstrating functional

equivalency, when issued by EPA, will require careful review.

Reactions and response to the strategy. EPA and USDA received more than

1,800 public comments on the draft strategy. The strongest reactions, both to the

draft and final form, have come, not surprisingly, from farmers and farm groups.

During the public comment period on the draft strategy, they raised concerns 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. A number of farm groups and individuals have

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.41 Most would

prefer that any animal waste program focus on voluntary approaches that encourage

owners and operators to utilize good environmental practices, with regulation and

enforcement limited to only known problems of poor resource management.

At the same time, 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, which believes that minimum nationwide

standards could bring stability to livestock industries and level the playing field where

states and counties are adopting a patchwork of requirements. However, support by

livestock groups for federal efforts is likely to hinge on whether federal rules are

viewed as unduly restrictive or impose unrealistic deadlines, and whether they include

incentives such as financial and technical assistance.

Farm groups argue that the water quality data on which EPA bases the need for

regulatory action are flawed. Because the data reflect monitoring and assessment of

only a small portion of all waters, they should not be used to assert that agriculture

and feedlots are linked to a water quality crisis, these groups contend. EPA believes

that while it is difficult to determine the exact contribution of any particular category

of pollution source on a national basis (e.g., agriculture or municipal point sources),

it is widely recognized that AFOs can pose a number of risks to water quality and

41

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

CRS-26

public health, mainly because of the amount of animal manure and wastewater they

generate.42 (See footnote 24, which discusses data on waterbodies monitored and

assessed by states.)

From the states' perspective, many have questioned the need for a national

program. States agree that animal feeding operations have a significant impact on

water quality, yet because many have acted legislatively and administratively to

address animal waste problems (see discussion in the next section), they fear (as do

farm groups) that a national program would attempt to impose a "one size fits all"

approach to a problem that is diverse and complex. However, supporters of federal

regulation point out that there is great variability among state programs and say that

a national approach is necessary to provide a more even economic playing field by

requiring minimum national standards.. 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

environmental quality programs. EPA's concern is to balance the states' desire for

flexibility with the federal agency's desire to have state programs be accountable by

meeting minimum federal standards and provide an opportunity, if needed, for federal

enforceability.

Environmentalists' reactions to the final strategy were mixed. While applauding

the fact that the strategy addresses the waste management responsibility of corporate

owners, some have said 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 decisionmaking. Variability among existing state programs has

been a concern to environmental groups. Some have favored 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 and, thus, were disappointed that a

moratorium was not included in the final strategy.43

42

"Unified National Strategy for Animal Feeding Operations:" 5.

43

"Farmers, Environmentalists Blast EPA Plan to Control Polluted Runoff," Inside E.P.A.,

March 12, 1999: 13.

CRS-27

State Programs and Legislative Activity

State Laws and Programs44

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.

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. Several states use letters of

approval to authorize livestock operations; others use general permits or licenses.

Critics fault these systems, concerned that they typically do not afford public

involvement or provide for enforceability, compared with permits. General permits

take a "one size fits all" approach which does not consider site-specific requirements

for individual facilities, critics say.

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.

In March 1999, Maryland became the first state to require that corporate poultry

producers take responsibility under their own NPDES clean water permits for the

waste generated by the operations of farmers who raise the poultry. As NPDES

permits for the corporations come up for renewal, they will be modified to require

producers to buy poultry only from those growers who have an approved

comprehensive nutrient management plan. State officials see this as a way to require

companies to take responsibility for the way their contract growers dispose of waste.

Poultry industry representatives oppose the Maryland plan and question the state's

authority to impose such restrictions in NPDES permits.

44

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 Regulations (draft). December 1998. 29 p.

CRS-28

Some states currently require some or all CAFOs to develop a nutrient

management plan or waste utilization plan, as contemplated in the national AFO

strategy (e.g., California, Hawaii, Illinois, Iowa, and Maryland). But like other

aspects of state programs, they too vary widely, for example in whether state approval

of the plan is required. Elsewhere, such plans are voluntary (e.g., Connecticut,

Delaware, Michigan, Minnesota, Ohio).

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. In 1998, Missouri's

Air Conservation Commission 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. Also in 1998, Colorado voters approved a constitutional amendment which,

among other things, will require odor control measures at swine operations. 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. In such 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 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.45 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).46

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.47 At the same time, Pennsylvania is now implementing a law passed in 1993

that requires farms with more than 1,000 pounds of animal (i.e., 1 cow) per acre to

prepare a plan with Best Management Practices to prevent nutrient releases to the

45

McElfish, James M., Jr. "State Enforcement Authorities for Polluted Runoff." The

Environment Law Reporter News & Analysis. Vol. 28, no. 4 (April 1998): 10181-10201.

46

Ibid.: 10196-10197.

47

"States Tackle Animal Waste Problem to Improve Water Quality." Environmental Science

& Technology, vol. 30, no. 12 (1996): 529A-530A.

CRS-29

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.48

Many states have so-called "right 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. (See Box 3,

page 30)

Despite "right-to-farm" laws and others that bar local governments 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 opposed the proliferation of rules that

can result from locally-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, in 1998 Minnesota had a staff of 22 inspectors to

regulate 45,000 animal feeding operations that require permits, meaning that with that

level of staff, it would take 20 years to inspect every feedlot in the state once,

according to an official.49 Oklahoma had six inspectors to enforce state laws that

regulate more than 200 licensed swine farms and 1.7 million swine. Washington state

had three inspectors responsible for more than 800 dairy farms. At the same time, one

response by a number of state legislatures that addressed animal waste issues in 1998

(see following section) was approval of additional staff and resources for feedlot

regulatory and enforcement activity. For example, the Washington legislature

approved a budget to increase inspectors for the state's dairies to eight persons. In

California, the state water quality control board quadrupled the number of inspectors

for the Central Valley's 1,600 dairies — from one inspector to four. Nebraska

enacted legislation with an industry fee provision that is expected to provide resources

to increase the number of livestock inspectors from four to 16.

48

Critics of this law point out that it contains substantial loopholes. One is that it requires a

large swine farm to submit a manure management plan, but does not require a similar plan for

farms that import manure. Also, plans do not need to disclose all of the interested parties in

the farm, only the local operator; thus, there is no way to know whether the corporate owners

have a history of environmental violations. DeKok, David. "Laws Largely Friendly to

Industry; State Rules on Manure Were Delayed, Modified." Harrisburg Patriot-News. Nov.

22, 1998: D-3.

49

Ison, Chris. "Agency Lags in Policing Feedlots; Regulatory Board Accused of Favoring

Hog-Farm Owners." Minneapolis Star-Tribune. March 8, 1998: 1A.

CRS-30

As a general matter, states vary in their commitment to protecting the natural

environment, depending on a

number of variables, including

severity of environmental

Box 3. Swine Operations in Iowa

problems, economic resources,

and political pressure from

Iowa is the most intensely farmed state in the

interest groups. Reportedly,

nation. Iowa's human population is 2.8 million

one reason for the variation in

persons, while its swine population is about 14

state

animal

agriculture

million. Almost 95% of land in the state is

programs is that some have

considered to be rural, and more than 75% is

aggressively sought to attract

considered cropland. The state has 16,000

animal agriculture companies

cattle and swine farms of all sizes, including

into their jurisdictions, and

1,300 cattle and swine operations bigger than

used state policies and laws to

2,000 animals. Iowa is the leading swinedo so, hoping that the

producing state, producing nearly one-quarter

companies

would

bring

of the nation's total. In part to develop and

significant economic benefits to

protect its leadership status, the state passed a

the state. Some offered tax

law which made it difficult for people to bring

abatement for new livestock

nuisance lawsuits against swine operations that

operations or associated job

move into their neighborhood. Critics said that

creation. Some promoted the

no other Iowa business is protected from

fact that their environmental

lawsuits brought by people when a newly

laws and enforcement on

arrived enterprise creates problems for existing

livestock operations were less

residents. In September 1998, the Iowa

stringent than their neighbors.

Supreme Court ruled this law unconstitutional,

In the early 1990s, for example,

saying that by creating areas with a grant of

Oklahoma, Texas, and Missouri

immunity from nuisance suits, the law created

were among the states that

an easement over neighbors' property without

lobbied

successfully

for

compensation - a taking that violates the U.S.

livestock expansion. North

and Iowa constitutions. This was the first

Carolina's swine population

ruling in the nation that has been upheld against

grew from 2.5 million animals

an agricultural immunity law, and legal analysts

in 1990 (seventh place,

are debating possible broader implications.

nationally) to 9.7 million in

(Source: "Iowa Supreme Court Invalidates Law

1998 (second place, nationally).

Immunizing Farms from Nuisance Suits." Daily

Other states where taxes on

Environment Reporter, no. 194, Oct. 7, 1998:

agriculture were perceived to

A-1)

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.50

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 engaging in farming within state borders. Often, these

50

Freese, Betsy, and Rod Fee. "Livestock-Hungry States." Successful Farming, Jan. 1994:

19-30, 33-35.

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restrictions arise from concern that large corporate-style operations owned by out-ofstate entities will squeeze out small family farm operations and disrupt the economic

infrastructure that supports agriculture in the state, as well as altering the character

of the social and economic framework that supports large numbers of operators and

residents across the landscape in rural areas Anti-corporate farm laws do not develop

out of concern for environmental issues in a state. Rather, they are part of a set of

pressures that confront concentrated 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 out-of-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. In 1998, South Dakota voters amended the

state constitution to prohibit corporations from owning or controlling farmland or

engaging in agriculture in the state. Supporters say this will effectively prohibit the

practice of companies contracting with farmers to raise crops or livestock.

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.51 The South Dakota

constitutional amendment adopted in 1998 allows family farm corporations and some

types of cooperatives.

51

Hipp, Janie Simms, "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. Summer 1996: 835.

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State Legislative Activity on Animal Waste Issues52

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) considered 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. The swine industry was a dominant, but not exclusive, focus of state

legislation. Issues debated in the states may presage issues that could arise at the

federal level, as well.

In most states where these issues were active in 1998, there were competing

proposals under consideration, representing alternative views of key interest groups.

In some cases, strict state legislation was proposed by the Governor (in Maryland and

Kentucky, for example), but elsewhere, the Governor's office opposed proposals for

new regulations that were advocated by lawmakers and some interest groups

(Minnesota and Wisconsin).

In many of these debates, environmentalists and small farm operators formed

alliances and urged legislators to regulate the entrance and operation of large-scale

farming operations which these groups believe pose great environmental risks and

great economic threats to the viability of established small, family farming operations.

In many states, these two groups have argued that wastes, discharges, and air

emissions from large livestock operations are manifestations of changes that not only

threaten environmental quality, but also tourism, recreation, fishing, boating, property

values, and economic development.

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 and later extended it through October 1999. Its purpose was to

prevent expansion or start-up of new operations until new regulations are developed.

(See Box 4, page 34) In 1998, other states where large-scale farms are attempting

to move in and expand also considered moratorium bills to allow time to identify

waste management policies, options, and rules.

Oklahoma also enacted a 1-year moratorium on the expansion of large swinefarming operations in 1998, based on support by the Governor and legislative leaders.

It prohibited the state Agriculture Department from authorizing or even processing

an application for a new or expanded large swine-feeding operation during the

moratorium. Mississippi enacted a 2-year moratorium until January 2000 on new

swine farm applications. 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

52

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.

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Alabama, Illinois, Kansas, Maine, South Dakota, and Wisconsin. Industry groups in

all of the involved states have actively opposed moratorium bills.

State versus local control. One of the most controversial issues in several

states has been 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 confusion 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 if, swine farms can be located

(Illinois and Nebraska debated but did not enact such bills) or require a county

referendum to approve siting of large-scale swine operations (enacted in Kansas in

1998).

A bill enacted in Mississippi which established a 2-year moratorium also allowed

counties that acted by June 1, 1998, to impose their own regulations on farms. Other

states considered bills to pre-empt local zoning of large-scale farming operations

(Indiana, for example, where such a bill was enacted, and Colorado, where legislation

was debated but not enacted) or a hybrid approach (Iowa, which enacted a bill giving

county officials the right to appeal state permits for livestock operations, but prohibit

local regulation).

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, or with the one likely to provide advice and

technical assistance to farmers, but not regulate them (departments of agriculture), as

industry generally favors. Legislators in several states debated this issue, including

Colorado, Tennessee, Vermont, Virginia, and Ohio. In Maryland, the legislature

approved a bill in 1998 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 was resolved when legislators agreed

to let the state agriculture secretary, not the department of environmental quality,

monitor compliance with the mandate.

Regulatory proposals. Bills to regulate, or impose stricter regulation on, animal

feeding operations were proposed in many states. Proposals varied 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 included the following:

C

Require implementation of comprehensive manure management plans (bills were

enacted in Washington, Maryland, and Virginia).

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Box 4. North Carolina's Experience

Since 1990, North Carolina's swine population has 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. The extent was more

surprising: 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 each year since

1995 to address animal waste problems. A 1995 law mandated buffers between

swine houses or lagoons and residential property, public buildings such as

schools and hospitals, and streams or rivers. It 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.

Recognizing that animal wastes were not the sole problem, the legislature also

appropriated funds 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, the

moratorium was extended for 6 months, to October 1999.

In 1998, much of the North Carolina policy attention 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 Moore counties, for example, opponents and

defenders of swine farms pressed their case as county commissioners debated

imposing stricter future local regulation of swine farms. ("Randolph Board Sets

Stricter Hog Standards," Greensboro News & Record. March 24, 1998: B1)

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C

Strengthen state inspection, specify design criteria (such as requirements on

waste lagoons) and siting restrictions (including setbacks from neighbors and

buffers), and tighten permit requirements (bills with some of these elements were

enacted in Washington, Nebraska, and Virginia and were debated elsewhere,

including South Dakota and Tennessee). A bill to impose mandatory farm-byfarm limits on farmers' use of fertilizer and manure to curb nutrient runoff from

animal wastes, together with funding and tax incentives for farmers was

approved in Maryland. (See Box 5, page 36).

C

Require regulation of farm odor (measures were enacted in 1998 in Kansas,

Colorado, and Oklahoma) or study regulation of odor (a Nebraska bill, also

enacted in 1998). Proposals to regulate air quality and odor were unsuccessful

in Tennessee.

C

Laws that make past violation of state rules a factor when facilities want to

expand or build (debated but not enacted in Iowa and Ohio).

C

Impose legal responsibility and tort liability for environmental damage caused by

livestock operations (South Dakota bill, enacted in 1998).

C

Impose or increase fees for permits and inspections (measures were enacted in

Nebraska, Colorado, and Oklahoma).

In Oklahoma, public concern about both swine and poultry CAFOs has been growing

for phosphorus levels, sets standards for poultry waste application to land and

mandates annual certification of applicators, requires water quality monitoring, and

allows penalties for violations. The second bill, dealing with swine operations,

modifies existing state requirements to establish restrictions on location of swine

farms (including new setback standards) in relation to drinking water supply and

recreation or ecologically significant sites, requires odor control plans for new or

expanding farms, and imposes fees to offset the cost of regulation.

The Colorado legislature considered competing bills to impose more stringent

controls on animal operations. At issue were two bills, one to regulate swine only,

the second to regulate all livestock operations, including swine. The swine-only bill,

which was endorsed by a coalition of cattle ranchers and environmental groups, also

would give localities authority over air quality and zoning, issues not addressed in the

latter bill, which was endorsed by swine farmer groups. The legislature did not pass

either bill, and proponents subsequently managed to put both proposals on the ballot

for voters' consideration in November 1998. In the fall election, voters adopted by

a wide margin the proposal to regulate swine operations and rejected the competing

proposal. The measure passed by voters amends the state constitution and requires

permits, groundwater monitoring, and soil testing for large-scale swine operations

(those with about 3,500 or more animals), as well as control of odor. Supporters of

the defeated measure said it is unfair to give advantage to some livestock industries

in the state (i.e., cattle) that would not have to comply with expensive rules, as the

swine industry must now do.

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Box 5. 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 blueribbon panel made recommendations about reducing nutrient loadings from upland

sites generally and from agriculture in particular; responding to public health

concerns; and conducting future research and monitoring.

Based on the panel's recommendations, the Governor presented legislation to

the 1998 legislative session containing both incentives and mandates to address

animal waste problems associated with Pfiesteria. The Governor's bill sought to

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 others that would

establish liability for integrators/corporate 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 April

1998, the legislature agreed to a compromise bill that requires most farmers to

implement runoff control plans but gives them additional time to comply and

imposes milder penalties for noncompliance.

Not all states have attempted to strengthen controls. In Mississippi, for example,

as part of a moratorium bill enacted in 1998, the legislature included a provision that

exempts swine farms and other agricultural operations from air pollution permits,

despite vigorous lobbying from groups which had sought air pollution control of

farms. The Vermont legislature approved a bill that revises requirements and permit

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procedures for large farm operations by eliminating public participation in the

permitting process. The New Hampshire legislature considered a "right to farm" bill

like similar laws in a number of other states.

Recent Livestock Industry Activities

Each segment of the livestock industry is represented by at least one group that

promotes its activities, ranging from market promotion, to producer education, to

lobbying for favorable legislation and policies. The National Pork Producers Council,

one such group, initiated a dialogue to bring together major interests, including

opponents of concentration, to address animal waste issues that arise from activities

of its members. Working through America’s Clean Water Foundation, it organized

a national dialogue to promote sound environmental activities by pork producers.

The dialogue started in May 1997, and participants met on eight occasions. Both

EPA and USDA were involved and have endorsed the process. While two interests,

environmental groups and local governments, chose not to participate fully, the

dialogue process received positive comment from many who are concerned with the

environmental effects of animal agriculture. It resulted in a set of recommendations

and proposals issued in December 1997.

One purpose of the dialogue was to develop a nationally-consistent

environmental strategy that would replace the patchwork of responses to major new

or expanded proposals and actions at state and local levels that could affect them,

including moratoria and nuisance lawsuits. At a congressional briefing to describe the

recommendations, a representative of the Council stated that the industry wanted to

avoid some of the kinds of problems that the timber industry encountered as it

attempted to deal with the spotted owl issue in the Pacific Northwest old growth

forest areas. It was stated that a major challenge for the Council would be to get the

full participation of all producers in this program.53

Implementation of the group's recommendations would not require any

congressional action; all of these recommendations, as envisioned in the final report,

would be implemented through enactment of state and local legislation, and as a result

of initiatives undertaken by individual producers. Implementation would start when

states adopt a framework which would apply immediately to new and expanding

facilities and would be phased in by existing facilities over 5 years. The Council

expects that EPA will make recommendations to states regarding adoption of the

recommendations in the strategy. One component that will receive considerable

attention is a more sophisticated way to determine setbacks for odor, using a formula

that the Council representatives say was developed and is used in Austria.

53

Comments of Jim Moseley, National Pork Producers Council, at congressional staff briefing,

Dec. 17, 1997.

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The pork industry dialogue resulted in a report54 with more than 20

recommendations that include the following:

C

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C

C

C

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The framework should apply immediately to all new or expanding commercial

operations, and be phased in over 5 years for existing operations.

All producers should register manure and wastewater facilities with regulatory

authorities within 2 years.

New manure and wastewater facilities at new or expanded farms should be based

on an evaluation of cumulative effects of environmental conditions at the site,

and the presence of neighboring pork production facilities.

Setbacks should be used for new facilities, and existing facilities should carry out

protective measures but should not have to relocate to meet setback

requirements.

New or expanded manure or wastewater storage facilities should be able to

handle 6 months of waste, and accommodate the greater of either a 25-year, 24hour or 10-year, 10-hour rainstorm.

Manure should be applied only to lands with adequate soil sampling, nutrient

testing, and an approved nutrient utilization plans, and application rates should

be based on phosphorus requirements.

All operations should prepare a current emergency response plan and should

keep manure and nutrient management information for at least 3 years.

Operators and contractors should be certified, and employees should be trained.

Abandoning earthen basins and lagoons should be prohibited, and a program to

finance the costs of closure for new and expanded facilities should be in place in

5 years.

In November 1998, EPA and the pork industry announced agreement on a Clean

Water Act Compliance Audit Program (CAP) providing incentives for pork producers

to undertake voluntary on-farm assessments by reducing penalties for any Clean

Water Act violations promptly disclosed and corrected under the program. Audits are

to be conducted by trained and certified independent inspectors at no cost to the

farmer. Producers that report and correct violations within a specified timetable and

otherwise comply with a CAP agreement are eligible for reduced penalties ranging

from $1,000 to $10,000 per violation, capped at $40,000 per facility, and EPA retains

the flexibility to waive penalties altogether. The pork industry and EPA see the

program as helping to protect public health and water quality by identifying and

correcting existing or potential violations, while giving certainty to industry

concerning EPA enforcement. Industry officials say the program could cost about

$50 million and that resources to support it could become an issue. Initially, the cost

of the program is being supported by grants from EPA and America's Clean Water

Foundation and by funds from an industry check-off program.55

54

America's Clean Water Foundation. Comprehensive Environmental Framework for Pork

Production Operations; The Recommendations of the National Environmental Dialogue on

Pork Production. Washington, DC, Dec. 17, 1997. 30 p.

55

National Pork Producers Council. Briefing for House Agriculture Committee. Dec. 12,

1998.

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The pork producers dialogue and followup activities are a significant effort

within the livestock community. It demonstrates the willingness of one sector of that

community to pro-actively seek solutions that are workable within the industry and

acceptable to outsiders. The Council asserts in the dialogue that many of the

recommendations are little more than sound business practices that should be adopted,

if they are not already followed, by all producers in the swine industry. The dialogue's

recommendations provide a baseline of expectations for those who raise pork (and

potentially for others who raise other types of livestock). Whether pork producers

can meet those expectations, and whether they will be acceptable to critics of pork

production, who may have more substantial expectations, are the two questions that

will be debated in the future.

Also in 1998, the poultry industry initiated a process similar to the pork

producers' dialogue, in hope of avoiding new federal and state rules. In December,

the Poultry Industry Environmental Dialogue announced a framework calling for most

poultry producers to prepare voluntary litter management plans by January 2001.

Plans will be developed in the context of "whole-farm nutrient management," which

considers chemical fertilizers, nutrients from other animals on a farm, and nutrient

needs of crops planted on a farm. Under the framework, farmers would make annual

reports to state agencies on the amount of litter produced, amounts applied to land,

and amounts transferred to alternative use. Integrators are expected to ensure that

producers have litter management plans and that producers make the annual reports.56

The group did not achieve consensus on some issues, such as who will pay for

research and educational programs and on the need to control phosphorus runoff, as

well as nitrogen.

Environmental groups have criticized the exclusively voluntary nature of the

pork and poultry industries' efforts, saying that national standards are needed to

address the industries comprehensively, because state standards vary greatly. They

are especially critical that the industry groups do not support requiring corporate

owners to take responsibility for the waste produced by animals.57

Congressional Response

105th Congress. In the 105th Congress, Members of Congress responded to

increased attention to animal waste management issues. Two bills introduced in 1998

took different approaches. No action was taken on either bill, although they

generated considerable discussion.

H.R. 3232, introduced by Representative George Miller, proposed to amend the

Clean Water Act with CAFO-specific provisions. Currently, feedlots are subject to

permit requirements in the law that apply to all industrial facilities. The bill would

56

"Comprehensive Plan Adopted for Poultry Litter Management," Meat and Poultry Online,

Dec. 11, 1998 [http://neews.meatandpoultryonline.com/industry-news/19981211-6888.html]

57

"Poultry Framework to Address Runoff; Others Call for Stronger Standards." Daily

Environment Reporter, no. 239, Dec. 14, 1998.

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define in law which CAFOs are required to obtain discharge permits, tightening EPA's

current regulatory threshold by halving the number of animal units triggering

regulation. It would require all CAFOs to have CWA permits within 18 months and

require EPA to revise existing CAFO regulations within 2 years. Regulated feedlot

operators would have to submit comprehensive nutrient management plans to state

or federal permitting authorities. The bill would require a CWA permit for land

application of animal waste in excess of amounts needed for agronomic uptake of

plants. Feedlot operators who cease operations would be required to remove and

dispose of all animal waste at the facility.

A second bill in the 105th Congress, S. 1323, introduced by Senator Tom Harkin,

took a different approach. The focus of this bill was on USDA, not EPA. It directed

USDA to establish minimum required elements and technical standards for animal

waste management plans. CAFO owners would submit such plans to USDA in order

to operate lawfully, and USDA would conduct on-site inspection as part of its review

and approval process. It defined CAFOs in terms of "animal weight capacity,"

meaning feeding operations with capacity of more than 400,000 pounds for cattle or

more than 200,000 pounds for other livestock, rather than number of animal units.

This definition would extend regulatory coverage to many additional facilities (for

example, animal feeding operations with about 400 beef cattle, compared with 1,000

under current EPA rules).

S. 1323 called for USDA, in consultation with EPA, to establish maximum

permitted levels for application of animal waste to land, based on quantities necessary

for efficient crop nutrient requirements (taking into account all sources of nutrients)

and quantities which do not pose a risk of increased soil toxicity or surface or ground

water pollution. It would be unlawful to apply wastes in excess of such quantities.

If more waste were produced, it would have to be treated (for example, at an off-site

wastewater treatment plant). Finally, S. 1323 proposed to make development and

implementation of waste management plans eligible for EQIP funding and to increase

total EQIP funding from $200 million to $600 million annually through 2002.

Both bills specifed minimum elements for waste containment systems, as well as

minimum distance standards for aerial spraying of wastes. Both bills proposed to hold

owners of animals (integrators) jointly liable with the feedlot operator for application

of animal waste in violation of a management plan or CAFO discharge permit.

The Senate Agriculture, Nutrition and Forestry Committee held a hearing on S.

1323 on April 2, 1998.58 In May, the House Agriculture Committee held an oversight

hearing on recent EPA activities affecting animal agriculture.59

58

See: http://www.senate.gov/~agriculture/hea98402.htm

59

U.S. Congress. House. 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, May 13, 1998. 105th Congress, 2d Session. 121 p. Serial No. 105-50.

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Administration and interest group views. In recent months, interest groups

have presented their views on animal waste management topics in connection with the

EPA-USDA national strategy (discussed above) and federal legislation.

Administration views. At the April 1998 Senate Agriculture Committee hearing

on S. 1323, witnesses from EPA and USDA said the Administration opposed the bill

because it would lead to regulatory duplication and overlap by their two agencies. At

this hearing, held before proposal or issuance of the national strategy, USDA said it

prefers working with farmers on a voluntary, cooperative basis (through

implementation of EQIP, for example) and does not have the resources to take on a

new regulatory role. Under the bill's expanded coverage, USDA said, the department

would be responsible for inspecting 40,000 animal feeding operations nationwide.

(Under the March 1999 final national strategy, EPA and states jointly have

responsibility for inspecting AFOs, beginning with CAFOs in priority watersheds

which are part of the estimated 15,000 to 20,000 that will eventually be required to

obtain clean water permits.)

Interest group views. In commenting on federal legislative proposals, interest

groups have repeated many of the points also made in connection with the

Administration's unified national strategy for AFOs. For example, several industry

groups said that federal legislation is not needed at this time, in view of the

Administration's initiatives, together with ongoing state and local activities and

voluntary measures that the industry itself is implementing. Industry groups say that

they do not need regulation, but could use technical and financial assistance.

Many state officials have argued that, with the extent and range of legislative and

regulatory activity occurring in states, there is little need for federal legislation that

could prove disruptive and duplicative of state efforts. As on issues related to the

national AFO strategy, state environmental and agricultural officials do not necessarily

object to minimal national uniformity, but strongly believe that states and localities

should not be preempted from imposing tighter controls, where they choose to do so.

Environmental and conservation groups support strong national baseline

standards for permitting of waste storage facilities and operations and waste

application. A strong federal program based in law, they say, would provide for more

accountability than programs run by state and local jurisdictions and is more likely to

ensure that permitting and decisionmaking includes public participation. Responding

to industries' emphasis on using voluntary measures, these groups often say that

voluntary measures are not enough to prevent harmful nutrient runoff. Moreover,

they say, while many voluntary manure management plans are being developed and

implemented--and comprehensive nutrient management plans will be developed under

the EPA-USDA national strategy, there is little information on how they are working.

106th Congress issues. In the 106th Congress, legislative attention to animal

waste issues could occur in connection with reauthorization of the Clean Water Act.

Representative Miller has introduced legislation (H.R. 684) similar to the bill he

sponsored in the 105th Congress, H.R. 3232. Like that bill, H.R. 684 would amend

the CWA to tighten EPA's regulatory programs for AFOs. Other specific proposals

may be introduced, as well. Moreover, reviewing the Act's current provisions that

deal with management of nonpoint source pollution (including contributions from

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agriculture) is likely to be a closely related prominent issue if and when

reauthorization occurs. However, no comprehensive reauthorization bills have been

introduced in the 106th Congress, and congressional committees have not scheduled

hearings or other legislative activity.

The March 1999 release of the national AFO strategy by EPA and USDA could

prompt a variety of congressional activities, such as oversight hearings or specific

proposals to modify the Clean Water Act or other existing laws.

Legislative attention also could occur in connection with the Administration's

request for funding to implement the Clean Water Action Plan. The President's

FY2000 budget request includes a total of $458 million in additional funds to

implement this water quality initiative, including $126 million more for USDA's EQIP.

How the President's priorities will fare in Congress depends both on support for the

funding requests themselves and on whether the requests are viewed as taking funds

away from other programs or projects having congressional priority. In 1998, the

President's FY1999 budget sought $568 million in increases to fund the Plan, but

Congress passed appropriations bills that provided less than 15% of the increased

funds requested.60

Conclusion: Policy Questions

Social and political pressure to address the environmental impacts of livestock

production has grown to the point that many federal policymakers today are asking

what to do, not whether to do something. The setting is one where agricultural policy

and environmental policy, which traditionally have separate agendas and priorities,

come together on some points. A major direction of inquiry is what strategies will be

effective and attainable, who should be responsible for developing and implementing

strategies to address known and future problems, and who should bear the burdens

of new strategies. Animal waste management issues are one set of concerns, along

with a number of others, that currently face animal agriculture generally. Underlying

the current discussion is a broader debate, as well: should evolving policies deal

primarily with residues of livestock production, or should policies also seek to

influence the ongoing trends in the industry towards concentration of animals among

smaller numbers of producers? Consideration of the following questions is likely to

shape policies that are developed to address the waste management issues,

irrespective of how other societal concerns also are addressed.

What is the federal role today? Federal, state, and local governments currently

have numerous programs and policies in place that address animal waste issues. At

the federal level, policies include EPA's existing regulatory programs implementing

water quality requirements and USDA's technical assistance and incentive payment

programs to farmers, especially through the new EQIP. With release of the national

AFO strategy, both will be coordinating their activities to implement that plan. Both

also will be coordinating activities to address agricultural pollution generally under the

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For additional information, see CRS Report 98-745, Clean Water Action Plan: Budgetary

Initiatives.

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Administration's Clean Water Action Plan. One question, in terms of EPA program

changes resulting from the national AFO strategy, is whether and, if so, how it will

propose to modify the current regulatory threshold of 1,000 animal units and possibly

bring more animal feeding operations clearly under EPA's rules. Many other

questions will be raised as EPA develops revised feedlot rules, including what type of

water quality monitoring requirements and land application standards should be set

at the federal level, versus, by state and local governments. One issue to watch over

time is the availability of funding and staff for both EPA and USDA, as they

implement new programs and initiatives.

What should the federal role be vis a vis state and local roles? State and

local governments implement a variety of regulatory, siting and zoning, technical

assistance, and cost share programs. A key question, especially in view of the varied

state and local policies that also now exist, is what degree of federal leadership and

national consistency is appropriate and how federal policies will blend with those of

states and localities. As discussed previously, some groups and individuals favor a

strengthened federal role that holds states to minimum national consistency. For

example, the National Pork Producers Council advocates minimum national standards,

which it has recommended through its dialogue. Others would prefer that states have

the lead role in policy formulation, based on their knowledge of geographic, climatic,

economic or other unique factors, while limiting the federal role to providing guidance

and financial assistance. A related question is how the federal role might change over

time, because of legislative and administrative actions by a growing number of states.

Further, there are questions about additional aspects of the federal role generally

in addressing animal waste issues. For example, is there a role for government in

supporting efforts to facilitate exchange or transfer of manure to lessen imbalances

between areas with intense animal production and areas with fewer livestock farms

where the nutritive value of manure can be used? Is there need for government to

encourage certain manure management practices with potential for increasing the

nutrient value while reducing off-site damages?61 What levels of financial assistance

can and should the federal government provide to farm operators and/or states for

implementation of waste management planning? How should federal funds to

operators be provided — directly from federal agencies, routed through states which

determine high-priority needs, or some other system? Also, because current federal

environmental programs do not deal with animal waste impacts on groundwater or

air quality, there is a question of whether federal policy should address these

concerns, which are beyond the Clean Water Act regime.

A related question concerns how to balance the roles of EPA and USDA, in

terms of federal responsibility and policy direction. This split was reflected by the two

legislative proposals introduced in the 105th Congress, one emphasizing EPA's role

under the Clean Water Act (H.R. 3232, reintroduced in the 106th Congress as H.R.

684), the other focusing on enhanced responsibility for USDA (S. 1323). Implicitly,

this question asks whether animal waste is viewed primarily as an environmental

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For example, commercially available amendments such as slaked lime or alum can reduce

ammonia nitrogen volatilization and phosphorus solubility of poultry waste but may not be

considered affordable or economically justified by farm operators.

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pollution problem, or primarily as an agricultural resource management problem.

Answers may not represent either-or policy choices, but could involve better

coordination of the agencies' differing roles, which is a key goal of the

Administration's Clean Water Action Plan.

What balance of federal regulation and voluntary approaches is needed?

This question is closely related to those concerning the appropriate federal role and

the way in which animal waste management is viewed as a policy matter. If it is

viewed as a point source pollution problem, EPA's traditional regulatory tools of

standard setting, permitting, compliance deadlines, and enforcement are the key

available tools. Alternatively, if viewed as an agricultural resource issue, the desired

policy tools might be those most familiar to the agriculture community: nonregulatory, incentive-based approaches.

Here, too, solutions are unlikely to be exclusive either-or determinations.

Solutions are more likely to be broad-based, along the lines and consistent with

evolving policies which view resource management problems, especially those

involving water resources, at the scale of watersheds. Some view watershed

management as the next generation of both pollution control and resource

management policies, since it is a concept centered on addressing the highest-priority

problems within geographic areas that encompass multiple economic and resource

activities and multiple ownerships. It seeks to move beyond focusing on individual

chemical contaminants or their sources to a broader assessment of all sources of

impairment within the watershed, including habitat degradation, air quality impacts,

biological factors, or polluted runoff. In many watersheds, agricultural sources

(cropland and livestock) will be part of the mix. Solving problems on a watershed

basis may involve a mix of policy tools: funding (grants and loans), land use

management, regulation, technical assistance and education, market-based approaches

(such as trading of effluent reduction requirements by point and nonpoint sources),

and coordination among federal, state, and local levels of government. These are the

kinds of policy and program tools that EPA, USDA, and other agencies are using

today; whether they will be the correct or exclusive tools to address future problems

remains to be determined.

What kinds of additional research and evaluation are needed? Experts

identify a number of areas of research needed to inform current and new animal waste

management policies. First, many believe basic research on using and disposing of

manure is crucial. Odor management is a key air quality concern, although this topic

may be a higher priority to industry, states, and localities, than to the federal

government which has no regulatory interest as of now. Other research needs include

improved soil tests to determine nutrient application rates and methods, improved

systems to identify water resources at risk from manure and fertilizers (i.e., those

where geology, soils, and climate create potential for runoff and erosion), and a better

understanding of the possible effects of concentrated animals and their waste on air

quality. Broader federal issues in which research on animal agriculture could be a

useful component include the role of concentrated animal populations in global

warming and patterns of atmospheric deposition, and possible effects on human

health.

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Two related questions are who should take the lead on research questions

(government or industry, for example) and whether some research must precede

implementation (for example, studies on crop uptake of nutrients and application of

phytase or other nutrient-reducing enzymes in feed). How the results of relevant

federally funded research and technology development will be transferred to the public

and private sectors and the commercial marketplace also is an issue. Efforts to

educate and assist farms in understanding the value of manure as a soil amendment

and the use of alternate disposal techniques seem likely to be a priority.

Further, one part of a research agenda is likely to be more complete evaluation

and monitoring of programs, both ongoing and new. What programs (i.e.,

governmental and private sector) are underway and how effective they are in

addressing animal waste issues could be examined. Evaluation activities will provide

accountability, especially where federal dollars are spent, and will aid in determining

what steps are needed to address remaining problems.

Is federal legislation needed? This, finally, is the question of how Congress

will choose to address national policies on animal waste management. Legislation has

been proposed to guide EPA and/or USDA activities, and thus, influence states and

livestock producers. At issue is whether current federal policies, especially the EPAUSDA national AFO strategy, alone will be adequate to address animal waste

problems nationally and encourage improved management practices. Congress could

likewise guide the agencies' activities through the appropriations process, by either

limiting or expanding funding for specific programs and initiatives or, more broadly,

for the Administration's Clean Water Action Plan.