Water Quality Initiatives and Agriculture

Congressional research reportDec 20, 2000

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CRS Report for Congress

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Water Quality Initiatives and Agriculture

Updated December 20, 2000

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Specialist in Resources and Environmental Policy

Resources, Science, and Industry Division

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Water Quality Initiatives and Agriculture

Summary

Congress most recently enacted amendments to the nation’s water quality law,

the Clean Water Act (CWA), in 1987. But national water quality policy has evolved

in the intervening years, as a result of implementation of the 1987 amendments and

related Administration initiatives intended to fulfill the requirements and meet the

goals and objectives of the Act. Agriculture, which has been a relatively minor

component of national water quality policies and programs, especially regulatory

policies, is now involved in several aspects of three recent initiatives.

In the Clean Water Action Plan, a Clinton Administration initiative intended to

address the nation’s remaining water quality challenges, several key actions focus on

agriculture, federal lands, and forestry as part of the overall goal of the Plan to more

effectively control nonpoint source pollution. Specific outcomes, requirements

affecting agriculture, if any, and any possible deadlines will be evident as the key

actions are set in motion.

One of the first Administration actions to carry out the Clean Water Action Plan

was a national strategy for addressing waste management by one segment of

agriculture, animal feeding operations (AFOs). Under the AFO strategy, all operators

of animal feedings operations are expected to develop and implement site-specific

comprehensive nutrient management plans, while an estimated 15,000 to 20,000 large

AFOs and those contributing to water quality impairments will be priorities for

regulatory programs and enforcement.

A third policy development, separate from the Clean Water Action Plan, is

implementation of existing CWA requirements which concern measures to improve

the quality of waters that remain pollutant-impaired even after application of

traditional pollution controls by industrial and municipal “point sources.” Most of

agriculture is classified as a “nonpoint source” and is not subject to CWA controls.

These requirements are the Act’s Total Maximum Daily Load (TMDL) program. As

states implement the TMDL program, where agricultural sources are identified as

responsible for water quality impairments, they may be required to adopt control

actions and/or management measures. Determinations of impairments and required

actions will be site-specific and variable. However, there is controversy over whether

nonpoint sources of pollution (diffuse runoff that does not come from a pipe, ditch,

or similar conveyance) are lawfully covered by the TMDL program. If only point

sources are covered, impacts on agriculture would be considerably fewer. Regulatory

changes proposed in 1999 to strengthen the TMDL program were widely criticized

by agriculture and forestry groups, other industry groups, states and localities, and

environmental groups. Final changes, issued in July 2000, dropped provisions that

could have directly affected some in agriculture and forestry, but the new rules remain

controversial.

This report provides background on the Clean Water Action Plan, the Unified

National AFO Strategy, and implementation of the TMDL provisions of the Clean

Water Act. It includes a glossary of terms and a chronology of key dates and

deadlines related to the initiatives.

Contents

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

Linkage and Coordination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Part 1: The Clean Water Action Plan . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Elements of the Plan and Early Implementation . . . . . . . . . . . . . . . . . . . . . 5

Early Implementation of the Clean Water Action Plan . . . . . . . . . . . . 6

Litigation Challenging the Clean Water Action Plan . . . . . . . . . . . . . . 8

Senate Oversight Hearing on the CWAP . . . . . . . . . . . . . . . . . . . . . . 9

Part 2: Animal Feeding Operations and the Clean Water Act . . . . . . . . . . . . . . . 9

Problems with CAFO Regulation . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Initiative under the CWAP: The National AFO Strategy . . . . . . . . . . . . . . 12

The National AFO Strategy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Guidance on Permits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Response to the Strategy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

Appropriations Requirement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Part 3: Related Water Quality Initiative: TMDLs . . . . . . . . . . . . . . . . . . . . . . 17

Implementation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

Proposed Regulatory Changes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

The Revised TMDL Regulation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

Agriculture and Forestry . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

Treatment of Nonpoint Sources in the TMDL Program . . . . . . . . . . 22

Further Developments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

Glossary of Terms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

Timeline of Identified Activities and Events

In the AFO Strategy and TMDL Program . . . . . . . . . . . . . . . . . . . . . . . . 28

Water Quality Initiatives and Agriculture

Introduction

Congress most recently enacted amendments to the nation’s water quality law,

the Clean Water Act (CWA), in 1987. But national water quality policy has evolved

in the intervening years, as a result of implementation of the 1987 amendments and,

even more so, as a result of Administration initiatives intended to fulfill the

requirements and meet the goals and objectives of the Act as a whole. One of the

most visible of these initiatives is the Clean Water Action Plan (CWAP), announced

by President Clinton and Vice President Gore in February 1998. Its purpose is to

build on the environmental successes of the CWA since it was enacted in 1972 and

to address the nation’s remaining water quality challenges through more than 100

actions now being developed or implemented by agencies of the government together

with state, local, public and private partners. Somewhat less headline-worthy but

likely to have widespread impact is implementation of an existing provision of the

CWA, called the Total Maximum Daily Load (TMDL) program, reinvigorated and

driven by lawsuits and recently issued regulatory changes.

The Clean Water Act's traditional focus has been on controlling wastewater from

manufacturing and other industrial facilities, termed “point sources,” which are

regulated through discharge permits. That statutory and regulatory focus on point

source controls has enabled much progress towards the nation’s water quality goals.

Yet, as point source pollution has been controlled, uncontrolled discharges in the form

of runoff from “nonpoint sources” have become proportionally a larger share of

remaining water pollution problems. Nonpoint pollution occurs as surface erosion of

soil by water and as surface runoff of rainfall or snowmelt from diffuse areas such as

farm and ranch land, construction sites, and mining and timber operations. Except for

large animal feeding operations, most agricultural activities are considered to be

nonpoint sources, since they do not discharge wastes from clearly identifiable pipes,

outfalls, or similar “point” conveyances. Nonpoint sources are not required to obtain

CWA discharge permits. Consequently, agricultural and other nonpoint sources are

not subject to the compliance and enforcement regime that applies to point sources.

How is agriculture now involved in current water quality discussions?

Agriculture, which has largely been at the sidelines of national water quality policies

and programs, especially regulatory policies, since much of its activities are not

directly subject to the Clean Water Act, now finds its activities scrutinized in

connection with several aspects of the recent water quality initiatives, which are

discussed in this report. First, one of the key goals of the CWAP is more effective

control of nonpoint source pollution, and because water quality data identify

agriculture as a significant contributor to nonpoint pollution, a number of actions in

the Plan focus on agriculture as a whole. Second, one of the first Clinton

Administration actions to carry out the CWAP was a national strategy for addressing

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waste management by one segment of agriculture, animal feeding operations (AFOs).

This strategy will affect an estimated 15,000 to 20,000 of the largest animal feeding

operations through regulation, and it seeks to encourage all livestock producers with

smaller operations to adopt improved waste management practices voluntarily. A

third development, separate from the CWAP, is implementation of the existing TMDL

provision of the CWA which concerns measures to improve the quality of waters that

remain impaired even after application of traditional pollution controls. It affects

nonpoint as well as point sources of pollution from agriculture and other sectors.

Where agricultural sources are identified as contributing to these continuing water

pollution problems, they may be required by states to take steps that will help correct

impairments.

Agricultural and other nonpoint sources have become increasingly prominent in

debates over water quality policy in part because these types of diffuse sources are

believed to be the largest remaining water pollution problem affecting United States

waters. To begin to address these problems, Congress added section 319 to the CWA

in 1987, directing states to implement programs for managing nonpoint sources.

Consequently, under federal law, agricultural sources could be subject to statedeveloped plans requiring operators to use management measures to limit pollutant

runoff from their lands. There is anecdotal information that some state nonpoint

pollution programs are addressing agricultural runoff in various ways, including

technical and financial assistance.1

In light of the several federal water quality policy initiatives discussed in this

report, questions arise concerning how, specifically, agriculture will be affected. The

answer, it seems, is that it will be affected substantially but not systematically, in that

the effects do not grow out of an integrated policy aimed specifically at agriculture.

The Administration and the individual federal agencies involved in these activities

have produced voluminous reports and other documents detailing the overall CWAP

and separate actions, but none describes holistically or comprehensively how

agriculture or any other sector of the economy will be impacted overall. Still,

substantial effect seems likely by virtue of the greater scrutiny in general that is being

given to agriculture’s impact on water quality. Operators of large animal feeding

operations are especially affected by the Administration’s AFO waste management

strategy. Remaining impacts, especially of the TMDL program, depend very much

on site-specific considerations of water quality impairments (i.e., what are the sources

contributing to impaired waters, what will be the most effective ways to manage those

sources) and how states will respond to the requirements of implementing the TMDL

provision of the law. Each of the three initiatives will affect agriculture.

In the Clean Water Action Plan, several key actions address

agriculture, federal lands, and forestry as part of the overall goal in

the Plan to more effectively control nonpoint source pollution.

Specific outcomes, requirements affecting agriculture, if any, and

deadlines, if any, will be evident as the key actions are set in motion.

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

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

1997. 213 p.

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Under the AFO strategy, all operators of animal feeding operations

should develop and implement site-specific comprehensive nutrient

management plans, while an estimated 15,000 to 20,000 operators of

AFOs (large facilities, which are termed confined animal feeding

operations, or CAFOs, and smaller ones contributing to water quality

impairments) will be priorities for regulatory programs and

enforcement.

As states implement the TMDL program, where agricultural sources

are identified as responsible for water quality impairments,

agriculture may be required to adopt control actions (for those in

agriculture which are point sources) and/or management measures

(for agricultural nonpoint sources) to help clean up waterways.

Determinations of impairments and required actions will be sitespecific and variable. However, there is controversy over whether

nonpoint sources are lawfully covered by the TMDL program. If

only point sources are covered, impacts on agriculture would be

considerably fewer.

This report consists of three major parts providing background on the three

ongoing water quality initiatives: the Clean Water Action Plan, the Unified National

AFO Strategy, and implementation of the TMDL provisions of the Clean Water Act.

At the end of the report is a glossary of terms and a chronology of the key deadlines

that can be identified in the initiatives.

Linkage and Coordination

Each of the three initiatives described in this report contains deadlines for actions

to be taken by federal agencies, states, and others. Based on the public documents

associated with each, there is relatively little apparent coordination that would help

agriculture or other sectors assess the aggregate impacts of all of these developments.

In the introductory part of the Clean Water Action Plan (discussed in Part 1 of

this report), the Administration describes national data on water quality impairments

and ongoing state efforts to identify pollution-impaired waters, as background for

“today’s water quality challenges” which the Plan addresses. Regarding agriculture,

in addition to actions in the Plan related to reducing pollution from AFOs (discussed

in Part 2), several other key actions also described in Part 1 specifically address

agriculture, while others address federal lands and forestry. None of these is

specifically tied to the AFO strategy.

The AFO strategy is one key action under the Clean Water Action Plan and,

consequently, has obvious links to the Plan. In the AFO strategy, the principal linkage

between it and the current TMDL program of the Clean Water Act (see Part 3 of this

report) is in the strategy’s discussion concerning the role of state and tribal

governments, which are responsible for using the TMDL process to identify pollutionimpaired waters. There is explicit linkage of the AFO strategy with the TMDL

program in one area. Under the AFO strategy, where TMDL assessments identify the

causes of water quality impairment as coming, for example, from animal manure or

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wastewater problems, those assessments may be the basis for identifying AFOs which

should be priorities for inclusion in the strategy’s regulatory program. 2 However,

CWA regulations issued in July 2000 to revise the TMDL program are separate from

activities under the Clean Water Action Plan, including the AFO Strategy, and contain

no discussion of actions under the Plan.

Part 1: The Clean Water Action Plan3

In October 1997, on the 25th anniversary of the Clean Water Act (CWA), Vice

President Gore announced an initiative intended to build on the environmental

successes of that Act and to address the nation's remaining water quality challenges.

While much progress has been made in achieving the ambitious goals of the law to

restore and maintain the chemical, physical and biological integrity of rivers, lakes,

and coastal waters, problems persist. Based on the limited water quality monitoring

that is done by states, it is estimated that about 40% of those waters do not meet

applicable water quality standards. The types of remaining water quality problems,

especially runoff from farms and ranches, city streets, and other diffuse sources, are

more complex than is controlling pollution discharged from the end of pipes at

factories and sewage treatment plants.

The Vice President directed the Environmental Protection Agency (EPA) and

the U.S. Department of Agriculture (USDA) to coordinate the work of other federal

agencies to develop an Action Plan within 120 days to improve and strengthen water

pollution control efforts across the country. 4 It was to focus on three goals:

enhanced protection from public health threats posed by water pollution, more

effective control of polluted runoff, and promotion of water quality protection on a

watershed basis. The Departments of Commerce and the Interior and the U.S. Army

Corps of Engineers also have roles. The purpose of the Action Plan is to coordinate

federal efforts to achieve the three goals. Over all, the Initiative seeks primarily to

address the wide range of activities that cause nonpoint source pollution (polluted

runoff), including agriculture, mining, urban development, and forestry. EPA and

states believe polluted runoff causes more than one-half of remaining water quality

problems. Agriculture is believed responsible for the largest portion of today’s water

quality impairments due to polluted runoff--70% of impaired rivers and streams and

49% of impaired lakes, according to EPA.

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

Strategy for Animal Feeding Operations." Mar. 9, 1999: 19-20.

For additional information, see CRS Report 98-150, The Clean Water Action Plan:

Background and Early Implementation; and CRS Report 98-745, Clean Water Action Plan:

Budgetary Initiatives.

"Notice of Vice President Gore's Clean Water Initiatives." 62 Federal Register 6044760449, Nov. 7, 1997.

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Elements of the Plan and Early Implementation

President Clinton and Vice President Gore released the Action Plan on February

19, 1998 (the text is available at [http://www.cleanwater.gov/]). The components of

the plan, more than 100 actions, correspond to specific elements identified by the Vice

President in October 1997. It consists mainly of existing programs, including some

planned regulatory actions that agencies have had underway, now to be enhanced with

increased funding or accelerated with performance-specific deadlines. Components

of the Action Plan announced in February 1998 are built around four key tools to

achieve clean water goals:

“A Watershed Approach,” using a collaborative effort by

governments, the public, and the private sector to restore and sustain

the health of watersheds.

! “Strong Federal and State Standards,” to protect public health,

prevent polluted runoff, and ensure accountability.

! “Natural Resource Stewardship,” calling on federal natural resource

and conservation agencies to apply resources and technical expertise

to state and local watershed restoration and protection.

! “Informed Citizens and Officials,” calling on federal agencies to

improve the information available to the public about the health of

watersheds and safety of beaches, drinking water, and fish.

Many of the specific elements of the Plan are intended to address nonpoint

source contributions to water quality impairments nationwide. According to the Plan

and EPA reports, polluted runoff is now the major source of water quality problems

in the United States. EPA’s 1998 National Water Quality Inventory, which is the most

recent compilation of conditions, summarizes state and tribal surveys of water quality;

it indicates that about 40% of surveyed U.S. waterbodies are impaired by pollution,

with the leading source being polluted runoff. About 60% of impaired rivers and

streams and 30% of impaired lakes are impaired by runoff or discharges from

agriculture.5 In 28 states that specifically assessed impacts of agricultural activities

on rivers and streams, the leading categories of agricultural source impairments were

nonirrigated crop production, irrigated crop production, and animal operations

(feedlots and animal holding areas).6

These water quality data are limited, because they describe only conditions in

waters assessed by states and tribes, but do not include all waterbodies. For the 1998

report, states surveyed 23% of river miles, 42% of lake acres, and 30% of estuaries,

since most states do not assess all of their waters during the two-year reporting cycle

required by the Clean Water Act. Therefore, the data should be used with caution.

Nevertheless, EPA believes that the data point to a major, continuing water pollution

problem coming from agricultural sources of all types--crop and pastureland,

rangeland, and concentrated animal feeding operations.

U.S. Environmental Protection Agency. National Water Quality Inventory: 1998 Report

to Congress. June 2000. EPA841-R-00-001. 1 vol. Broadly speaking, “impairment” means

that the waterbody fails to attain and maintain designated water quality standards.

Ibid., p. 65.

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Regarding agriculture, a prominent key action in the Plan is reducing pollution

from animal feeding operations (see Part 2 of this report). In addition, the Plan

includes several other key actions concerning agriculture, such as: USDA will

implement existing conservation reserve and conservation enhancement programs;

USDA will work with agricultural producers to encourage the use of marketing and

promotion orders to assist them in meeting pollution prevention objectives; and

USDA will study the feasibility of providing an insurance program to enable

producers to offset risks of utilizing new technologies by managing fertilizers and

pesticides to prevent pollution (Clean Water Action Plan, pp. 50-54).

The Plan contains other actions to enhance watershed management on federal

lands, starting with developing by 1999 a unified policy to provide a framework to

ensure that federal land and resource management activities demonstrate water quality

stewardship. Related actions include substantially improving maintenance of forest

roads and trails on federal lands; publication of new forest transportation regulations

by the U.S. Forest Service in 1999; assessment by EPA of whether to revise CWA

permit regulations relative to forest roads; implementation of an accelerated program

to restore stream corridors; actions by federal land management agencies to

implement forest health strategies; and improved management of public rangelands

(Clean Water Action Plan, pp. 32-36)

Early Implementation of the Clean Water Action Plan. The President's

FY1999 budget identified the Clean Water Action Plan as a high priority for

environmental programs. It requested a total of $2.5 billion--a $609 million, or 33%,

increase over 1998 base funding levels--for a multi-agency Clean Water and

Watershed Restoration Initiative. By October 1998, Congress had passed FY1999

appropriations bills to fund the Plan. Over all, the enacted bills provided $2.0 billion-less than 10% of the increased funds sought by the Administration. EPA received

close to full funding for its requested Action Plan activities, but USDA received less

than 4% of requested increases for its activities under the Plan. In the President's

FY2000 budget, the Administration requested $450 million in increases ($2.45 billion

total) for the Plan. Appropriations bills provided $2.17 billion--$128 million more than

in FY1999, but $322 million less than was requested. For FY2001, the President’s

budget requested $2.76 billion for activities under the Plan, a 27% increase above the

FY2000 enacted funding level.

Federal officials estimated in February 1998 that the ambitious agenda in the Plan

would require 25 years for full implementation. They believe that the Plan will be

implemented, even though appropriations have been less than requested. A lack of

new resources will mean a 50- or 100-year implementation schedule, they now say.

The Administration has issued two reports (in February 1999 and February 2000, the

anniversary of the release of the Action Plan) describing accomplishments to date.

Many of the accomplishments, however, are only first steps in processes that will be

lengthy, especially in terms of impacting water quality improvements. Since many of

the specific items in the Plan and half of the budgetary resources are focusing on

partnerships with states, localities, and individuals, accomplishments depend greatly

on actions taken by multiple stakeholders. Changes in water quality conditions may

not be apparent for many years.

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EPA Activities. Of the 100-plus actions in the Plan, many involve core clean

water programs for which EPA is primarily responsible.

A significant aspect of the Plan is a focus on watersheds as the basis

of water quality problem identification and decision making. In June

1998, EPA released a Unified Watershed Assessment Framework to

assist states, tribes and others with the process called for in the Plan

of identifying watersheds that do not meet clean water and other

natural resource goals and where prevention action is needed to

sustain water quality and aquatic resources. In response, states

submitted watershed assessment reports by October 1, 1998.

Funding increases provided since FY1999 for clean water grants to

states have focused on priority waters identified by these

assessments.

State water quality reports indicate that over-enrichment of waters

by nutrients (nitrogen and phosphorus) is the biggest overall source

of impairment of the nation's waters. EPA is to publish numeric

water quality criteria (scientific information concerning harmful levels

of a pollutant) for nutrients for three groups of waters (lakes and

reservoirs, rivers and streams, and estuaries and coastal areas) by the

end of 2000 and for wetlands by the end of 2001. In June 1998,

EPA released a national strategy for developing criteria and

standards for nutrients. States will use these criteria to develop

nutrient provisions of enforceable state water quality standards.

Joint or Other Federal Agency Activities. Many actions in the Plan involve

other federal agencies, either alone or jointly with EPA. A key purpose of the Plan

is to coordinate the several federal agencies and their state partners that have water

quality program responsibilities.

Among the areas that involve agriculture, a key element of the Plan,

minimizing public health and environmental impacts of runoff from

animal feeding operations (AFOs) into rivers, lakes, and estuaries,

was addressed when EPA and USDA issued a national AFO strategy

in March 1999. The strategy itself is not a new regulation or

substitute for existing regulations, nor does it impose binding

requirements on federal agencies, states, tribes, localities, or the

regulated community. It presents an overall approach and timetable

for curbing pollution from livestock operations. However, many of

the details — and, hence, many of the specific impacts on operators,

states, and others — will only become clear with the issuance of

guidance and regulatory changes in the coming months. (See

discussion below.)

The Conservation Reserve Enhancement Program (CREP) is a

state-federal conservation partnership program targeted to address

specific state and nationally significant water quality, soil erosion,

and wildlife habitat issues related to agricultural use. As of October

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2000, USDA has approved programs in 13 states and is considering

nine other proposals.

In October 2000, EPA, USDA, the Departments of Agriculture,

Commerce, Defense, Energy and the Interior, the Tennessee Valley

Authority, and the Army Corps of Engineers adopted a unified

federal policy on watershed management. It is intended to provide a

framework for a watershed approach to ensure that federal land and

resource management activities meet the goals of the Clean Water

Act on the 800 million acres of land managed by the federal agencies

and ensure that the federal government serves as a model for water

quality stewardship.

The Plan encouraged a temporary moratorium on new road

construction in America’s national forests. In October 1999,

President Clinton directed development of an environmental impact

statement and regulations to permanently prohibit new roads in

certain roadless areas on national forest land. Regulations were

proposed in May 2000. The proposal has been praised by some,

criticized by some for not being far-reaching, and criticized by others

for being too restrictive. Final rules are expected to be issued by the

end of the year.

Litigation Challenging the Clean Water Action Plan. In June 1999, the

Wyoming Association of Conservation Districts, joined by more than 60 groups

representing state conservation districts and agriculture industry, challenged the Clean

Water Action Plan in a lawsuit filed in U.S. District Court in Colorado.7 The lawsuit

alleges that the Plan violates three federal laws: the National Environmental Policy

Act (NEPA), by not requiring an environmental impact statement on the plan’s

cumulative impacts; the Administrative Procedure Act (APA), by not providing

enough opportunity for public comment; and the Clean Water Act, by trying to

regulate nonpoint source water pollution. The plaintiffs seek to block implementation

of the CWAP pending full compliance with the three laws.

The litigation asserts that, because the CWAP is a “major federal action,” it

should have been subject to the public notice and comment and intergovernmental

coordination processes under the APA and NEPA. In response, EPA has argued that

the Plan itself is a strategy for actions that the government plans to take and, thus,

does not fall under federal public input requirements. Any EPA regulatory actions

resulting from the Plan will be subject to such requirements, EPA has said.

In October 1999, the federal government filed a motion to dismiss the case,

citing lack of jurisdiction and lack of subject matter. A U.S. Magistrate, appointed

to analyze issues presented in the case, recommended in October 2000 that the

government’s motion to dismiss be granted by the district court. The plaintiffs oppose

the recommendation, and the case is continuing.

Wyoming Association of Conservation Districts v. Browner, D.Colo., 99-S-1179, June 23,

1999.

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Senate Oversight Hearing on the CWAP. On May 13, 1999, the Senate

Environment and Public Works Committee held an oversight hearing on the CWAP,

the first such congressional involvement outside the appropriations process.8 The

Committee heard from Administration and public witnesses. EPA and USDA

witnesses defended the Plan as “a comprehensive blueprint for restoring and

protecting the Nation’s water resources.” Environmental group witnesses endorsed

the Plan because, in their view, it focuses significant federal resources on polluted

surface runoff. State witnesses were divided. One from Maryland supported the

Plan, saying it reinforces strong ongoing water quality programs in that state. A

witness from Wyoming, which has been in dispute with EPA over the state’s water

quality program, said the Plan has disrupted ongoing state activities.

Agriculture industry witnesses challenged the scientific basis of the Plan,

especially EPA’s contentions that nonpoint sources generally and agriculture

specifically are the major sources of water quality impairment. These groups argue

that, because existing water quality data are limited and are based on partial state

assessments of surface waters, the premise of the Plan is flawed. Better data are

needed before undertaking such a broad initiative, they said. Others said that

requirements and deadlines of actions in the Plan are unrealistic, particularly the

animal feeding operations strategy (see Part 2).

Part 2: Animal Feeding Operations and the Clean Water

Act9

As noted previously in this report, most agricultural activities are considered to

be nonpoint sources and thus are exempt from CWA regulatory programs; this

includes most animal feeding operations (AFOs, or feedlots), where livestock are

confined, reared, and fed. However, large confined animal feeding operations

(CAFOs) are specifically defined in the CWA as “point sources” rather than “nonpoint

sources.” CAFOs are treated in a similar manner to other industrial sources of

pollution, such as factories and municipal sewage treatment plants, and are subject to

the Act's prohibition against discharging pollutants into waters of the United States

without a permit. In 1974 and 1976, EPA issued regulations defining the term CAFO

for purposes of permit requirements (40 CFR §122.23) and effluent limitation

guidelines specifying limits on pollutant discharges from feedlots (40 CFR Part 412).

Discharge permits, issued by EPA or qualified states (43 states have been delegated

this responsibility), implement the Part 412 requirements for individual facilities.

Under the existing permit rules, a CAFO must meet all of the following criteria to be

subject to EPA rules:

Other than this Senate oversight hearing, Congress has considered the CWAP primarily

through the appropriations process, where spending decisions about requests to fund the Plan

have been considered.

For information, see CRS Report 98-451, Animal Waste Management and the

Environment: Background for Current Issues.

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Animals are stabled or confined and fed for 45 days or more in a 12month 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 10 (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.11

EPA's effluent limitation regulations apply to operations that raise beef and dairy

cattle, poultry, swine, sheep, and horses. The rules essentially prohibit discharge of

wastewater from CAFOs into navigable waters, except when caused by the worst 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 32 states and territories that participate in the

Coastal Zone Management Act. CZARA is the first federal program to require

specific measures to address agricultural erosion and runoff and other major sources

of coastal nonpoint pollution. Its requirements are implemented by states through

plans that they develop under CZARA. Federal CZARA guidance for agricultural

sources specifies minimum management measures including retention ponds, solids

separation basins, and vegetative practices such as filter strips between production

As defined by USDA, an animal unit is 1,000 pounds of live weight of any given livestock

species or combination of livestock species. This term varies according to animal type; one

animal is not always equal to one animal unit. EPA's regulation of CAFOs covers AFOs

consisting of: 1,000 beef cattle; 700 mature dairy cattle; 2,500 swine weighing over 55

pounds; 500 horses; 10,000 sheep; 55,000 turkeys; or 30,000 laying hens or broilers (with a

liquid manure handling system).

The concentration that has occurred in the animal agriculture sector is illustrated by changes

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

in 1975, USDA analyzed the potential impacts and reported that 95,000, or 13.6%, of the

700,000 animal feeding operations in the country would be subject to those rules. (Source:

U.S. Department of Agriculture. "Implications of EPA Proposed Regulations of November

20, 1975 for the Animal Feeding Operations." Washington, DC, Jan. 30, 1976. 26 p.) The

smaller number of total operations and smaller number of CAFOs today suggest that those

that are regulated currently are, on average, much larger than 20 years ago.

CRS-11

facilities and nearby surface waters. CAFOs with as few as 50 animal units may be

subject to these and other requirements. Federal agencies have fully approved

CZARA programs in three states (California, Maryland, and Rhode Island) and

conditionally approved CZARA programs in 26 other coastal states and territories

(three others are under development). Livestock and poultry producers there will

begin to be regulated by state requirements in the near future. Neither the law nor the

implementing regulations specifies a timeline for implementation.

Problems with CAFO Regulation. A number of problems with the current

CAFO regulatory system under the CWA have limited its effectiveness in preventing

environmental problems from livestock production.

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

have CWA permits today (i.e., about 2,000 out of 6,600). One

explanation is the historic emphasis by federal and state regulators on

other large industrial and municipal dischargers over agricultural

sources, since most of agriculture is not subject to the Act. EPA

estimated that only 760 permits were current at the end of 1995.12

Another factor is disputes between regulators and agricultural

operators over whether particular facilities meet the regulatory

threshold, such as whether the regulations apply to feedlots that

claim to have no discharge.

Some sources went unregulated because the EPA rules, now more

than 20 years old, do not reflect more recent changes in animal waste

management technology. In particular, EPA defines feeding

operations with 100,000 laying hens or broilers that use continuous

flow watering systems and facilities with 30,000 laying hens or

broilers that use liquid manure systems as CAFOs. However, the

poultry industry has moved away from such wet systems since the

1970s. Many broiler producers now use dry litter waste systems

where water is not applied and there is no discharge; they have

argued that they are not subject to the rules. Producers of layers

generally still have liquid waste systems.

Federal regulations and guidelines contain no requirement for

nutrient or manure management plans.

CAFO inspections by federal and state regulators and compliance

enforcement activities have been limited, often occurring only after

citizen complaints or accidental releases following large rainfall

events or equipment or facility failures.

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-12

Initiative under the CWAP: The National AFO Strategy

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

animal feeding operations, but doing so has not been a priority. 13 For several years,

Agency officials discussed the need to revise the CAFO regulations, and in 1997,

plans were announced for two initiatives -- one dealing with CWA enforcement

against livestock producers, and one dealing comprehensively with all sources of

nonpoint source pollution, including farm operations. However, neither included

implementation details.

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

attention to pollution incidents resulting from or believed to be associated with animal

waste spills. Another was the growing number of lawsuits filed by environmentalists

against states and EPA (involving nearly 2 dozen states), seeking to compel action

against remaining sources of water pollution, including agriculture, under the Clean

Water Act’s TMDL program (see Part 3 of this report). A third came in February

1998 with the Administration’s release of the Clean Water Action Plan.

The National AFO Strategy. In March 1999, EPA and USDA jointly issued

a major program to implement the Clean Water Action Plan: a unified national

strategy for animal feeding operations to minimize the water quality and public health

impacts of AFOs.14

The strategy consists of multiple elements and is based on a national performance

expectation that all AFO owners and operators—regardless of the size of their

operations—will develop and implement by 2009 site-specific Comprehensive

Nutrient Management Plans (CNMPs) intended to protect water quality and public

health. Having all AFO owners and operators undertake comprehensive nutrient

management planning will accomplish the goal of minimizing water pollution from

confinement facilities and land application of manure, according to the strategy. With

the exception of large AFO operations which are considered to be CAFOs and thus

are subject to CWA requirements (about 5% of total AFOs nationwide), the agencies

expect that the vast majority of CNMPs will be developed and implemented

voluntarily. In general terms, a CNMP will identify actions or priorities to meet

clearly identified nutrient management goals at an agricultural operation and typically

will address manure handling and storage, land application of manure, land

management (such as tillage, crop residue management, and other conservation

practices), recordkeeping, and other utilization options (for example, when manure

is sold to other farmers). Plans will be developed by qualified specialists. NRCS

estimates that at least 330,000 AFOs need to develop CNMPs or revise existing

nutrient management plans to meet the performance expectation of the strategy. The

strategy recognized that technical and financial assistance will be needed both to

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

guidelines at least annually. The CAFO standards have not been reviewed or revised since

they were promulgated in the mid-1970s.

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

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

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

CRS-13

develop and implement CNMPs, and it discussed additional resources in the

Administration's budget to be directed at such assistance.15

The strategy views regulatory programs as complementary to voluntary

approaches that will apply to 95% of the total 450,000 AFOs in the nation. The

strategy says that, under existing CWA authority, the discharge permit program in the

CWA (called the NPDES program) will be used to address the relatively small number

of AFOs (5% of the total) that cause measurable water quality or public health

problems or that pose a significant risk to water quality or public health. It identifies

the following priorities for permits and enforcement:

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

produce quantities of manure that can be a risk to water quality and

public health. These already are considered to be CAFOs and

therefore are "point sources" already subject to NDPES permit

requirements.

Some facilities with fewer than 1,000 animal units which can pose a

risk of water pollution or public health problems, because the

facilities have a manmade conveyance to discharge manure and

wastewaters into streams.

Other individual facilities or collections of facilities with fewer than

1,000 animal units that, based on water quality monitoring, are

contributing significantly to impairment of a waterbody or watershed;

such facilities will be designated as CAFOs and will be a priority for

permit issuance and enforcement.

EPA expects that the total number of CAFOs meeting these three priorities for

NPDES permits will be 15,000 - 20,000 facilities. These facilities will be required to

develop and implement CNMPs, and their permits will include specific performance

measures, monitoring, and reporting. Under the strategy, states and EPA should

identify the universe of CAFOs and inspect all CAFOs in high-priority areas by 2001

and all other CAFOs by 2003. Permitting will occur in two phases. First, by 2005,

EPA and authorized states will issue NPDES permits under existing regulations to

priority facilities. EPA expects that this will occur mainly through general permits

(either issued on a statewide basis or for specific geographic areas, such as

watersheds). Individual permits will be issued to exceptionally large operations, new

operations or those undergoing significant expansion, operations with historical

The President’s FY2001 budget requested an additional $151 million (for $325 million

total) for the Environmental Quality Incentive Program (EQIP) and a $54 million increase (for

$73 million total) in USDA assistance to AFOs to develop or revise CNMPs. Appropriators

(in P.L. 106-387) provided no increased funds for EQIP, but kept it at the FY1999 and

FY2000 level of $174 million, and provided $33 million total for AFO assistance grants. The

budget also requested an additional $50 million (for $250 million total) for the Section 319

nonpoint source management grant program, with the increase directed to priority watersheds

under the Clean Water Action Plan. Appropriators (in P.L. 106-377) provided $238 million

for that EPA grant program.

CRS-14

compliance problems, or operations with significant environmental concerns. NPDES

permits are issued for no longer than 5 years and must be renewed thereafter.

EPA also has initiated 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 issue revised

guidelines for poultry, swine, and beef and dairy cattle by December 2002. In

compliance with that schedule, EPA proposed revised guidelines for these sectors on

December 15, 2000.16 The proposed rule would increase the number of facilities

required to obtain Clean Water Act permits and would restrict land application of

wastes. In the proposal, EPA asked for public comment on two options for defining

CAFOs subject to NPDES permitting. The first option would consider a facility to

be a CAFO if it has 500 cattle or comparable animals units (compared with 1,000

animal units under current rules). The second option would define a facility as a

CAFO if it has more than 1,000 animal units or has 300 to 1,000 animal units and

meets certain conditions such as if they are located within 100 feet of a waterway.

However, under either of the proposed options, permitting authorities would have

discretion to designate smaller facilities (i.e., below 500 or 300 animal units,

respectively) for inclusion in permit programs.

In other changes in the EPA December proposal, permitting requirements would

be extended to dry-manure poultry operations and stand-alone immature swine and

heifer operations. The Agency proposed to require that permitted facilities develop

and implement site-specific permit nutrient plans which identify the amount of

nutrients generated at the facility and determine rates for the application of the waste

to agricultural land. EPA also proposed to lift the current regulatory exemption for

facilities that only discharge during a 25-year, 24-hour storm.

Under the 1999 AFO strategy, in the second phase of NPDES permitting after

2005 (following expiration of permits issued between 2000 and 2005), EPA and states

will reissue permits from the first round and will incorporate any new requirements

that could result from regulatory revisions completed in the interim.

The AFO strategy also addressed corporate integrators, owners of livestock that

contract out to farmers to raise the animals or poultry. It recommended a copermitting system, in which permits would cover not just the grower or farmer, but

also the corporate owner, and EPA’s December 2000 proposed CAFO rule changes

would require co-permitting of facilities covered by those regulations. In such a

system, liability for handling the animal waste and for any environmental violations

would be shared by the farmer and any corporate owner that exercises substantial

operational control over a CAFO. Environmental groups in particular have urged copermitting, arguing that it could go a long way to improving waste management by

involving integrators in ensuring that their contract growers are environmentally

responsible. While some states already recognize that corporate owners share

responsibility with farmers, industry groups have generally opposed this as a national

requirement. In their view, it is inappropriate to hold the corporate entity responsible

For information, see: [http://www.epa.gov/owm/afos/rule.htm].

CRS-15

for an environmental violation when that entity does not own the farm, its buildings,

the land, or the waste produced by the animals.

The strategy allows states that can show they meet the requirements of the

NPDES program to be recognized by EPA as functionally equivalent. This part of the

strategy recognizes that some states are implementing permitting programs under

state law that meet or exceed the requirements of the NPDES program

Guidance on Permits. Both USDA and EPA have issued technical guidance

documents intended to assist issuance of permits and development of comprehensive

nutrient management plans. In May 1999, the Natural Resources Conservation

Service of USDA released the Policy for Nutrient Management17 and a revision to the

conservation practice standards for Nutrient Management.18 NRCS’ policy directive

and supporting technical guide establish policy for nutrient management, set forth

guidance to NRCS personnel who provide nutrient management technical assistance,

and guidance for the revision of the NRCS nutrient management conservation practice

standard. These two documents will provide the framework for all nutrient

management plans developed by NRCS for the agricultural community, which will be

tailored by state conservationists within a two-year period.

In addition, in December 1999 NRCS released a draft document providing

Technical Guidance for Developing Comprehensive Nutrient Management Plans.19

Its purpose, USDA said, is not to establish regulatory requirements but to provide

technical guidance for local, tribal, state, or federal programs to use in developing

CNMPs. However, the document provides a list of six essential elements that need

to be considered in developing a CNMP, including evaluation and treatment of sites

proposed for land application, potential short- and long-term impacts of planning land

application, feed management activities to reduce the nutrient content of manure, and

consideration of alternative utilization strategies to land application (such as off-site

transport, combustion to produce energy, or composting). NRCS expected to issue

final Technical Guidance in July 2000 but has not done so yet.

In August 1999, EPA issued draft guidance and a model permit to assist the

states in meeting the goal of accelerating issuance of NPDES permits for large

CAFOs.20 The guidance provides information on:

Which facilities need to apply for an NPDES permit,

NRCS Policy for Nutrient Management, Part 402. Text of the policy is available at:

[http://www.nhq.nrcs.usda.gov/BCS/nutri/gm-190.html]

NRCS Nutrient Management (Code 590) Conservation Practice Standards. Text is

available at: [http://www.nhq.nrcs.usda.gov/BCS/nutri/590.html]

U.S. Department of Agriculture. Natural Resources Conservation Service. Notice of the

Technical Guidance for Developing Comprehensive Nutrient Management Plans. 64 Federal

U.S. Environmental Protection Agency. Office of Wastewater Management. Guidance

Manual and Example NPDES Permit for Concentrated Animal Feeding Operations. Review

Draft. Aug. 6, 1999. 1 vol. [http://www.epa.gov/owm/afo.htm#Permit Guidance]

CRS-16

The key elements of an NPDES permit for CAFOs,

Components of a site-specific CNMP to be included in NPDES

permits for CAFOs (the same six items specified in USDA’s

Technical Guidance document: manure and wastewater handling and

storage; land application; site management; feed management; record

keeping; and other utilization options, such as centralized treatment

or composting),

! The relationship between NPDES permits and comprehensive

nutrient management plans,

! The types of NPDES permits that may be issued to CAFOs (general

permits issued on a statewide or watershed basis and individual

permits, where appropriate),

! Public notice requirements,

! Co-permitting of corporate entities that exercise substantial

operational control over CAFOs,

! Land application of manure and wastewater (including addressing

land application activities under the control of the CAFO operator

and activities not under the control of the CAFO operator), and

! Monitoring and reporting requirements.

EPA anticipates that CAFOs will be required to develop and implement CNMPs

that are consistent with EPA’s permit guidance, other state requirements, and NRCS

technical standards. EPA took public comment on the draft guidance through

November 1999 and was expected to issue final guidance in March 2000. However,

the guidance has not yet been issued.

Response to the Strategy. Strong reactions to the national strategy came from

farm groups. A number of them expressed a fear that a national AFO strategy will

enable EPA, through clean water rules, to control economic activity and land-use

decisions of farmers.21 Most would prefer that any animal waste program focus on

voluntary approaches that encourage operators to utilize good environmental

practices, with regulation and enforcement limited to only known problems of poor

resource management. Agricultural groups criticized many parts of EPA’s draft

permit guidance to implement the strategy, contending, for example, that EPA lacks

authority to require co-permitting.

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

program. A key concern for states has been that many already have difficulty

providing resources for feedlot inspections and enforcement; thus, they are wary of

new regulatory requirements that could impose additional resource burdens. States

also say that they need flexibility to coordinate and prioritize implementation of the

federal strategy with other equally important state programs. EPA's concern is to

balance the states' desire for flexibility with the federal agency's desire to have state

programs be accountable and provide an opportunity, if needed, for federal

enforceability.

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

CRS-17

Environmentalists say that the proposed timeline to implement the strategy (7

years to issue permits for all CAFOs) is too slow. Many are critical that EPA failed

to act on this problem sooner. Environmentalists often are skeptical of voluntary

approaches to managing animal waste, particularly where there is no requirement for

water quality monitoring or reporting, and little or no public involvement in siting,

permitting, or similar decision making.22 Environmental groups were highly critical

of EPA’s draft permit guidance. In their view, the guidance document inappropriately

delegates responsibility to set nutrient waste management standards to USDA, which

the Clean Water Act does not allow. According to these groups, comprehensive

nutrient management plans based on USDA standards will be inadequate and will not

provide for compliance with the Clean Water Act.

Appropriations Requirement. In the conference report accompanying EPA’s

FY2000 appropriation (P.L. 106-74, H.Rept. 106-379), conferees directed EPA, in

conjunction with USDA, to conduct a cost and capability assessment of the AFO

strategy and ordered that the report be submitted to Congress by May 15, 2001.23

Part 3: Related Water Quality Initiative: TMDLs24

The Clean Water Act (CWA) contains a number of complex elements of overall

water quality management. Foremost is the requirement in section 303 that states

establish ambient water quality standards for surface waterbodies. These consist of

the designated use or uses (e.g., recreational, public water supply, or industrial water

supply) and the water quality criteria which are necessary to protect the use or uses.

Through permits, states or the EPA impose wastewater discharge limits on individual

industrial and municipal facilities to ensure that water quality standards are attained.

However, Congress recognized in the Act that, in many cases, pollution controls

implemented by industry and cities would be inadequate, due to pollutant

contributions from other unregulated sources or insufficient regulation of cities and

industrial facilities.

Under section 303(d) of the Act, states must identify lakes, rivers, and streams

for which wastewater discharge limits are not stringent enough to achieve established

water quality standards, after implementation of technology-based controls by

industrial and municipal dischargers. For each of these waterbodies, a state is

required to set a total maximum daily load (TMDL) of pollutants at a level that

ensures that applicable water quality standards can be attained and maintained. If a

state fails to do the TMDL analysis, EPA is required to develop a priority list for the

state and make its own TMDL determination.

"Farmers, Environmentalists Blast EPA Plan to Control Polluted Runoff," Inside E.P.A.,

Mar. 12, 1999: 13.

H.Rept. 106-379, in the Congressional Record, daily ed., October 13, 1999: H10019.

For additional information, see CRS Report 97-831, Clean Water Act and Total Maximum

Daily Loads (TMDLs) of Pollutants.

CRS-18

Section 303(d) provides the analytical and regulatory means for using water

quality standards to upgrade waters that remain polluted after the application of

technology-based requirements. A TMDL includes a quantitative assessment of water

quality problems, pollution sources, and pollutant reductions needed to restore and

protect a river, stream, or lake. TMDLs may address all pollution sources, including

point sources such as municipal sewage or industrial plant discharges; nonpoint

sources, such as runoff from roads, farm fields, and forests; and naturally occurring

sources, such as runoff from undisturbed lands. The complexity and cost of

developing TMDLs will vary, depending on the geographic area, number and

complexity of pollutants, and distribution of sources.

The TMDL program first and foremost affects states, territories, and Indian

tribes authorized to administer the Clean Water Act. It requires these entities to

adopt and implement measures needed to attain and maintain water quality standards.

It is up to states, territories, and tribes to identify waters that do not meet this goal

and adopt policies and measures applicable to individual sources, as appropriate to

attain water quality standards. In the early years of implementing clean water

programs, states and localities were largely focused on water pollution problems

associated with point sources (industries and municipalities). The TMDL requirements

of the law effectively force an examination of all sources contributing to water quality

problems. Thus, EPA, states, and the public are looking beyond traditional point

source controls to assess all measures needed to attain water quality standards. This

broader assessment is occurring as a result of litigation which has forced action by

states and EPA and more recently by changes to the TMDL regulations.

A TMDL is not self-implementing and does not itself establish new regulatory

controls on sources of pollution. However, when TMDLs are established, municipal

and industrial wastewater treatment plants may be required to install new pollution

control technology. States and EPA enforce the TMDLs through revisions to existing

permits which include the pollutant limits and a schedule for compliance. For waters

impaired by nonpoint source runoff, including runoff from agriculture, because there

are no federal controls over these sources under the Clean Water Act, the primary

implementation measures are state-run nonpoint source management programs

coupled with state, local, and federal land management programs and authorities. For

example, farmers and ranchers may be asked to use alternative methods in their

operations to prevent fertilizers and pesticides from reaching rivers. Cities may be

required to control and treat runoff from their streets.

Implementation

TMDLs are one element of water quality management programs conducted by

states to implement the CWA. Other activities include standard setting, monitoring,

issuing permits, and enforcement. Integrating them with the TMDL program may

well be difficult because of factors such as different program purposes, schedules, and

even different definitions for key terms. Most states have lacked the resources to do

TMDL analyses, which involve complex assessment of all identified point and

nonpoint sources to ascribe and quantify environmental effects for particular discharge

sources. Baseline water quality monitoring data for the analyses (to identify impaired

waters and pollution sources) is limited. EPA has both been reluctant to intervene in

the states and has also lacked resources to do so itself. Thus, there has been little

CRS-19

implementation of the provision which was enacted in 1972. For many years, EPA

did little even to prod states to identify waters that remain pollution-impaired, much

less undertake analyses to develop TMDLs, as required by the Act. The first TMDL

regulations were issued in 1985, but only in 1992 did EPA issue regulations requiring

states every 2 years to list waters that do not attain water quality standards and

establish TMDLs to restore water quality. Under this schedule, states submitted their

most recent 303(d) lists in April 1998. From these 1998 submissions, EPA estimates

that approximately 20,000 waterways nationwide are impaired and require TMDLs.

Lawsuits have driven the greatest attention to TMDLs. Responding to the

failure of both states and EPA to meet the statutory requirements, environmental

groups have filed 40 lawsuits in 38 states in the last few years. The first such lawsuit

was filed in 1986; the bulk have been filed since 1992. Environmentalists see

implementation of section 303(d) as important both to achieving the overall goals and

objectives of the Act and to pressuring EPA and states to address nonpoint and other

sources which are responsible for many water quality impairments nationwide. Courts

in a number of states have ordered or approved settlements for expeditious

development of TMDLs.25

Because of the lawsuits and existing requirements of the law, in August 1997,

EPA issued a policy which for the first time called on states to develop long-term

schedules for implementing TMDLs. Under that policy, EPA directed states to

establish TMDLs in order to meet water quality standards within 8 to 13 years.26 One

observer commented on this time frame, "Whether even this pace can be maintained,

and whether it will produce load allocations and plans of sufficient quality to be

effective, are legitimate and difficult questions."27 Following listing of impaired

waters, pursuant to section 303(d), development of TMDLs is being initiated at an

increasing pace in some states, but most TMDLs remain to be completed. EPA

estimates that about 1,500 TMDLs have been developed. Evidence of cleanup of

waterways will take much longer to identify.

Estimating when individual waters will actually be cleaned up, following

development of a TMDL, is difficult. The amount of time required for a waterbody

to reach water quality standards can vary considerably, depending upon the

complexity of the pollutants, the uses of the land surrounding the waterbody, and the

commitment of the community or upstream dischargers to reducing pollutants. EPA’s

current regulations do not contain cleanup deadlines or targets.

For information on TMDL litigation by

[http://www.epa.gov/OWOW/tmdl/lawsuit1.html].

state,

see

EPA’s

Web

site:

This is a longer time frame than is being mandated as a result of some of the TMDL

litigation. The schedules for TMDLs in 19 lawsuits concluded by consent decrees and

settlement agreements range from 4-1/2 years to 12 years.

Houck, Oliver A. "TMDLs, Are We There Yet?: The Long Road Toward Water QualityBased Regulation under the Clean Water Act." Environmental Law Review, v. 27, August

1997 p. 10399.

CRS-20

Proposed Regulatory Changes.

In August 1999, EPA proposed

comprehensive revisions to the TMDL regulations to strengthen the program. 28 The

proposal set forth criteria for states, territories, and authorized Indian tribes to identify

impaired waters and establish all TMDLs within 15 years. The proposal incorporated

many of the recommendations of a Federal Advisory Committee Act (FACA) group

which the Agency convened in 1996 to help develop a consistent national program. 29

At least two aspects of the proposal were controversial: (1) an explicit requirement

that waterbodies impaired wholly or in part by nonpoint sources of pollutants be

identified and that TMDLs be developed for such waters, and (2) a new requirement

for an implementation plan. Further, explicit inclusion of nonpoint sources of

pollution and potential impacts on agriculture and silviculture sources became highly

contentious.30 Vigorous challenge to all parts of the proposal came from states and

various industry groups, arguing that EPA’s proposed expansion of the current

TMDL program is not clearly authorized in the law. EPA responded that it does have

ample authority for the proposed changes.

Because of wide interest in the proposal, EPA extended the public comment

period on the TMDL rule by 90 days, to Jan. 22, 2000, for a total comment period of

150 days. The Agency received an estimated 34,000 comments.

EPA’s 1999 proposal had few strong supporters, for varying reasons. States,

which would be directly affected by the proposal, criticized the burdens that new

requirements would place on them. They are concerned that they lack the resources

to meet tight deadlines to develop and implement TMDLs. Further, states say that

TMDLs should not necessarily be prioritized over other elements of existing water

quality management programs. Industry groups are concerned about impacts of new

pollution control requirements. But, municipal and industrial point source groups

urge states and EPA to ensure that TMDL requirements do not fall disproportionately

on their discharges, while possibly failing to address nonpoint source contributions to

impaired waters. Farm groups and others associated with nonpoint discharges

question EPA's authority to include nonpoint source pollution in the TMDL program.

The forestry industry vigorously criticized the potential impacts of the proposal on its

activities. A number of environmentalists, who support the need for a stronger

TMDL program, objected to the lengthy time periods in the proposal before water

quality improvements are likely to occur. They criticize the lack of aggressive

implementation of a program that has existed in the law since 1972.

Congressional interest has been high: during the 106th Congress, 13

congressional hearings were held, and six legislative proposals to modify the Clean

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

U.S. Environmental Protection Agency. R EPORT OF THE FEDERAL ADVISORY COMMITTEE

ON THE TOTAL MAXIMUM DAILY LOAD (TMDL) PROGRAM . July 1998. 1 vol. Available at:

[http://www.epa.gov/OWOW/tmdl/advisory.html#fdr].

For additional information, see CRS Report RL30422, EPA’s Total Maximum Daily Load

(TMDL) Program: Highlights of Proposed Changes and Impacts on Agriculture.

CRS-21

Water Act or delay the rule were introduced.31 EPA attempted to respond to the

widespread criticism and signal flexibility on some of the most contentious points.

While the revised TMDL rule was undergoing final Administration review, Congress

adopted a provision in H.R. 4425, the FY2001 Military Constructions/FY2000

Urgent Supplemental Appropriations Bill, stating that no funds may be used in

FY2000 or FY2001 to “make a final determination on or implement any new rule

relative to” the August 1999 TMDL proposal. Because the President intended to sign

H.R. 4425 into law but opposed the TMDL provision, the Administration accelerated

its review, allowing the EPA Administrator to sign it on July 11 before the

appropriations bill was signed on July 13 (P.L. 106-246). In the final rule, EPA

acknowledged Congress’ action in H.R. 4425 and delayed the effective date of the

rule’s program changes until 30 days after October 1, 2001, or the expiration of the

rider, whichever comes first. In the interim, current program requirements under

existing regulations and court-sanctioned TMDL schedules remain in place. The text

of the final rule was published in the Federal Register on July 13.32

The Revised TMDL Regulation

Current law and the existing TMDL program require states to identify

waterbodies where water quality standards are not being attained and to establish a

total maximum daily load of pollutants at a level that will attain water quality

standards by allocating further required pollutant reductions among sources. The key

changes proposed in August 1999 included: a new requirement for a more

comprehensive list of impaired and threatened waterbodies; a new requirement that

states, territories and authorized Indian tribes establish and submit schedules for

establishing TMDLs; a new requirement that the listing methodologies be more

specific, subject to public review, and submitted to EPA; clarification that TMDLs

include nine specific elements; a new requirement for an implementation plan as a

required element of a TMDL; and new public participation requirements.

The July 2000 final rule comprehensively revises current TMDL regulations. It

builds on the current regulatory program and adds details, specific requirements, and

deadlines. It retains the basic elements of the 1999 proposal for more comprehensive

identification of impaired waters, schedules and minimum elements for TMDLs, and

new public participation requirements.33 The final revised program rule establishes

new requirements for listing impaired waters and requires schedules for completing

Since October 1999, hearings have been held by the full committee or subcommittees of

the House Agriculture Committee, House Transportation and Infrastructure Committee,

Senate Agriculture, Nutrition and Forestry Committee, and Senate Environment and Public

Works Committee. Legislative proposals in the 106th Congress include H.R. 3609, H.R.

3625, H.R. 4502, S. 2041, S. 2139, and S. 2417. Another bill, H.R. 4922, was introduced

after promulgation of the final rule in July.

U.S. Environmental Protection Agency. “Revisions to the Water Quality Planning and

Management Regulation and Revisions to the National Pollutant Discharge Elimination

System Program in Support of Revisions to the Water Quality Planning and Management

Regulation; Final Rules.” 65 Federal Register No. 135, July 13, 2000, pp. 43586-43670.

For detailed information, see CRS Report RL30611, EPA’s Total Maximum Daily Load

(TMDL) Program: Highlights of the Final Revised Rule.

CRS-22

TMDLs (the current program has no TMDL time schedules). It also establishes 11

minimum requirements for the content and development of TMDLs, including an

implementation plan as a required element of a TMDL. Under the CWA, if a state

fails to develop the list of impaired waters or develop a TMDL, EPA is required to

do so. For states, the revised TMDL rules increase their responsibilities to identify

impaired waters in four ways: revising the identification/listing methodology,

establishing schedules for TMDL development, increasing public participation, and

providing the identification/listing methodology in a new format.

For some interested parties, what is most of interest is what was not included in

the final rule. EPA dropped several provisions that were most controversial in the

proposal, including some potentially affecting agriculture and forestry.

Agriculture and Forestry. The final rule entirely dropped provisions that could

have affected some agricultural and forestry activities and could have required some

of them to obtain CWA discharge permits if they are contributing to water quality

impairments. Much of the criticism of the TMDL proposal had focused on possible

impacts on these sources, most of which currently are exempt from the Act’s permit

and enforcement requirements that apply to point source discharges from industries

and municipalities. These parts of the proposal, especially those potentially affecting

forestry, generated vigorous criticism (and, according to EPA, more than one-half of

the 34,000 public comments submitted on the TMDL proposal), and much of EPA’s

response since August 1999 focused on explaining and clarifying provisions that were,

in fact, a small part of the full TMDL proposal.

In 1999, EPA proposed that some forestry operations, animal feeding operations

(AFOs), and aquatic animal production facilities not currently subject to CWA permits

could be required by states to obtain permits. EPA justified the proposal on the basis

that state water quality data indicate that pollutants from agriculture and forestry are

causing water quality problems that prevent waters throughout the nation from

meeting standards. The proposal detailed a narrow set of circumstances when this

might occur – for example, only where there is an identifiable source of discharge,

only where the discharge is causing a water quality impairment, only where the source

is determined to be a significant contributor of pollutants to the impaired waterbody,

and only where EPA is developing the TMDL in lieu of a state. However, agriculture

and forestry groups strongly criticized the possibility that even some part of their

activities could be subjected to CWA regulations.

Concerns of the forestry industry included challenging whether forestry’s water

quality impacts are significant enough to warrant EPA’s proposed changes, suspicion

that the reach of EPA’s program would be broader than the Agency indicated, and a

general fear of becoming subject to CWA regulation and enforcement. Before

finalizing the revised rules, EPA first indicated that the provisions affecting forestry

would be withdrawn for reproposal at a later date. But in the final rule, the Agency

indicated that the forestry, AFO, and aquatic animal facilities provisions were dropped

and that EPA does not intend to repropose any of them.

Treatment of Nonpoint Sources in the TMDL Program. One of the most

contentious TMDL issues has been whether discharges from agricultural and other

CRS-23

nonpoint sources are included in the program or whether it is limited to point source

impairments of waterbodies.

EPA points out that agency policy and rules since 1985 have fully included

identification of waters impaired by all sources: point sources, nonpoint sources, and

a combination of both. Further, administrative guidance documents on TMDL

implementation likely have included all sources. Practically speaking, however,

nonpoint sources have infrequently been affected by TMDL requirements, at least

until recently, because of several factors: (1) limited state and federal implementation

of section 303(d), especially before recent litigation and EPA’s response to lawsuits,

and (2) EPA’s and states’ long-standing focus on controlling pollution from point

sources, which has changed in part as a result of data indicating that nonpoint

pollution is a significant source of water quality impairments nationwide.

EPA’s 1999 proposal and the final rule clarify that states are to identify waters

impaired by all sources and to establish TMDLs whether the impairments are due to

pollutants from point sources, nonpoint sources, or a blend of sources. In the

proposal, EPA explained (64 Federal Register 46020-46021) its view that section

303(d) provides ample authority to list waterbodies impaired by nonpoint sources of

pollution and to establish TMDLs for those waterbodies. In EPA’s view, this is

primarily because there is no express exclusion of nonpoint source-impaired

waterbodies from the TMDL requirements of section 303(d) and because the

definition of “pollutant” in the Act is not limited to point sources.

Some agriculture and forestry interests fear that, by including nonpoint source

pollutants in TMDLs, EPA will regulate nonpoint sources pursuant to section 303(d)

by requiring pollutant reductions from nonpoint sources. In response, EPA

acknowledged in the July 2000 final rule that the Clean Water Act does not authorize

the Agency to regulate nonpoint sources and that nonpoint source load reductions can

only be required by states through their implementation of the Act. EPA’s only ability

to affect or encourage implementation of TMDLs involving nonpoint sources is

indirect, by conditioning grants to states (e.g., CWA section 319 grants).34

Inclusion of nonpoint sources in the TMDL program remains a controversial

topic.35 However, groups representing major point source dischargers are concerned

that if arguments against including nonpoint sources are successful, point sources will

be unfairly and inequitably targeted to achieve more stringent water quality controls.

65 Federal Register 43632, July 13, 2000.

In northern California, a group of farmers, plus agricultural and timber trade associations,

challenged EPA’s authority to control pollutant allocations to waters impaired solely by

nonpoint sources. Plaintiffs in the lawsuit claimed that the CWA does not give EPA the

authority to regulate nonpoint sources such as agricultural runoff. In March 2000, a federal

district court rejected the plaintiffs’ arguments and held that it would be impossible to carry

out the TMDL program and implement water quality standards without taking nonpoint

sources into account (Pronsolino v. Marcus, 91 F.Supp.2d 1337 (N.D. Cal. 2000)). The case

has been appealed.

CRS-24

If EPA’s views that section 303(d) applies to nonpoint source pollutants are

ultimately rejected by the courts or policymakers, impacts of the TMDL program on

agriculture would be considerably less, and fewer agricultural sources would be

affected by TMDL requirements. However, barring change in the current policy,

agriculture and forestry sources are not sheltered from the substance of the TMDL

program. As states continue to implement both the current program under existing

rules and the revised program in the future, if agricultural and forestry nonpoint

sources are identified as contributing to water quality impairments, states may seek

controls or management practices by those sources in order to attain water quality

standards. Under both the existing and revised TMDL program, states are responsible

for identifying impaired waters and allocating pollutant reductions needed to attain

water quality standards. The revised program adds details, specificity, and deadlines

to the existing program, but in either case, where nonpoint sources are associated

with water quality impairments, states may call for measures (voluntary or otherwise)

that will achieve necessary pollutant load reductions.

Moreover, concerning animal feeding operations, other federal activities

independent of the TMDL program – i.e., implementation of the EPA-USDA AFO

Strategy discussed previously -- could lead to more stringent regulation of some.

Further Developments

Litigation challenging the July final TMDL rule has been filed in the federal

District Court for the District of Columbia. Lawsuits have been filed by several

industry and trade association groups representing nonpoint source dischargers.

These suits argue, among other points, that EPA exceeded its authority in seeking to

regulate agricultural and other nonpoint source operations. Two lawsuits have been

filed by groups representing point source dischargers. Some in these groups raise

legal issues about listing of impaired waters and similar implementation problems that

could adversely affect utilities and other industries. Finally, several environmental

groups have filed to intervene for the defense in some of the lawsuits and have also

filed lawsuits of their own challenging parts of the final rule that they believe are not

strong enough. The deadline for filing legal challenges was November 24, but EPA

was reportedly seeking to extend that deadline through January 2001.

The FY2001 appropriation bill providing funds for EPA, P.L. 106-377, includes

report language (H.Rept. 106-988) directing studies by the National Academy of

Sciences on the scientific basis of the final TMDL rule and by EPA on the potential

costs to states and businesses of implementing the revised TMDL rule. EPA also is

to prepare a report on monitoring data needed to develop and implement TMDLs.

The NAS report is to be submitted to Congress by June 1, 2001. The EPA report is

to be submitted to Congress by February 21, 2001 (120 days after enactment of P.L.

106-377).

Under the Congressional Review Act, Congress has the opportunity to review

an agency’s rule and can disapprove the rule by passing a joint resolution, which the

President could approve or disapprove, like any other bill presented for his signature.

Joint resolutions to disapprove the TMDL rule were introduced in the House

(H.J.Res. 104, H.J.Res. 105, and H.J.Res. 106) and in the Senate (S.J.Res. 50).

Pursuant to the Congressional Review Act, Congress has 60 session or legislative

CRS-25

days to pass a joint resolution of disapproval. Because the session or legislative days

between introduction of these resolutions and the end of the 106th Congress was less

than 60 days, the Act provides that a joint resolution of disapproval could be re-filed

in the 107th Congress, and the new Congress would then have 45 days to conduct a

review of the rule. If such a resolution passed both Houses of Congress and was

signed by the President, the rejected rule would be deemed not to have had any effect

at any time, and current TMDL regulations would remain in effect.

CRS-26

Glossary of Terms

Animal feeding operation (AFO): Agricultural enterprises where animals are kept

and raised in confined situations. AFOs congregate animals, feed, manure and

wastewater, and production operations on a small land area. Feed generally is

brought to the animals, rather than the animals grazing or otherwise seeking feed

in pastures, fields, or on rangeland.

Animal feeding operations strategy: A Plan issued jointly by USDA and EPA in

March 1999 as part of the CWAP with the goal of having AFO owners and

operators take actions to minimize water pollution from animal confinement

facilities and land application of manure.

Animal unit (AU): As defined by USDA, an animal unit is 1,000 pounds of live

weight of any given individual livestock species or combination of livestock

species.

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

amended.

Clean Water Action Plan (CWAP): Administration initiative announced in February

1998 intended to coordinate federal efforts to address the nation’s remaining

water quality challenges.

Comprehensive Nutrient Management Plan (CNMP): A plan that identifies

actions or priorities that will be followed to meet defined nutrient management

goals at an agricultural operation. CNMPs may address, as necessary, feed

management, manure handling and storage, land application of manure, land

management, record keeping and other utilization options.

Concentrated animal feeding operation (CAFO): An animal feeding operation that

meets EPA regulatory definitions, where more than 1,000 animal units are

confined at the facility; or more than 300 animal units are confined at the

facilities and (1) pollutants are discharged into navigable waters through a

manmade ditch, flushing system, or other similar manmade device, or (2)

pollutants are discharged directly into waters that originate outside of and pass

over, across, or through the facility or come into direct contact with the confined

animals.

National Pollutant Discharge Elimination System (NPDES): The principal

discharge permit program of the CWA, authorized in section 402 of the law.

NPDES permits, issued by EPA or authorized states, are required in order to

discharge from a point source into waters of the United States. NPDES permits

contain limits on what can be discharged, monitoring and reporting

requirements.

Nonpoint source: Under the CWA, sources that do not meet the definition of point

source, generally including diffuse runoff that does not enter the nation’s waters

from a discernible, confined and discrete conveyance. Nonpoint source pollution

CRS-27

is the by-product of a variety of land use practices, including farming, timber

harvesting, mining, and construction. It also results when rainfall and snowmelt

wash pollutants in urban areas into sewer systems and storm drains. Nonpoint

sources are not subject to NPDES permit requirements. Under this law, they are

managed primarily through the Act’s section 319 program, which requires states

to assess the extent to which nonpoint sources cause water quality problems and

develop management programs to address them.

Point source: Under the CWA, means any discernible, confined and discrete

conveyance, such as pipes, ditches, channels and tunnels, from which pollutants

are or may be discharged. Point sources are subject to NPDES requirements.

The term does include CAFOs but does not include agricultural stormwater

discharges and return flows from irrigated agriculture.

Total Maximum Daily Load (TMDL): A quantitative assessment of water quality

problems, pollution sources, and pollutant reductions needed to restore and

protect a river, stream, lake, or coastal waterbody, as required by section 303(d)

of the CWA.

Watershed approach: An approach to resource management that focuses on

hydrologically defined drainage basins (watersheds) as the areas of study, rather

than areas defined by political or other boundaries. The watershed protection

approach identifies the primary threats to human and ecosystem health within a

watershed and takes a comprehensive, integrated approach to solutions and

actions.

CRS-28

Timeline of Identified Activities and Events

In the AFO Strategy and TMDL Program

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

March 1999: EPA and USDA issued the Unified National Strategy for Animal

Feeding Operations (AFO Strategy1)

May 1999: USDA/NRCS issued the Policy for Nutrient Management and revised

conservation practice standards for nutrient management (AFO Strategy)

August 1999: EPA issued draft guidance manual for NPDES permits for CAFOs

(AFO Strategy)

EPA proposed revised regulations for the TMDL program

December 1999: USDA issued draft technical guidance for developing

comprehensive nutrient management plans (AFO Strategy)

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

January 2000: EPA and states should issue general permits for large CAFOs with

significant manure production. Permits expire in 5 years. (AFO Strategy)

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

July 11, 2000: EPA promulgated comprehensive revisions to existing TMDL

regulations

December 2000: EPA and USDA will develop a coordinated technical transfer and

education plan to disseminate results of AFO-related research (AFO Strategy)

EPA and USDA will develop a Virtual Center to serve as a single point of

reference regarding research topics (AFO Strategy)

Dec. 15, 2000: EPA proposed revised effluent guidelines and permitting regulations

for poultry, swine, beef and dairy cattle. (EPA is under court order) (AFO

Strategy)

May 15, 2001: EPA shall submit to Congress a cost and capability assessment report

on the AFO strategy (EPA FY2000 appropriations, P.L. 106-74, H.Rept. 106379)

2001: CAFO inspections–EPA and states should inspect all CAFOs in priority areas

by end of FY2001 (AFO Strategy)

Based on schedules and information contained in the Unified National Strategy for Animal

Feeding Operations, issued March 1999.

CRS-29

Apr. 1, 2002: States must provide EPA and the public with the methodology used to

compile 303(d) lists of impaired waters. Similar submission is due on April 1 of

each listing year – 4 years. (TMDL2)

Dec. 15, 2002: EPA will issue revised effluent limitation guidelines and permitting

regulations for poultry, swine, beef and dairy cattle (EPA is under court order)

(AFO Strategy)

2002: EPA and states should issue permits for smaller CAFOs with unacceptable

conditions or significant contributions to water quality impairments by the end

of this year. Permits expire in 5 years. (AFO Strategy)

2003: CAFO inspections–EPA and states should inspect all other CAFOs by end of

FY2003 (AFO Strategy)

Large CAFOs that were issued general permits in 2000 should develop and fully

implement Comprehensive Nutrient Management Plans (CNMPs) no later than

the end of this year (AFO Strategy)

Apr. 1, 2004: States must submit lists of impaired waters for EPA approval. This list

must include schedule for developing TMDLs that provides for establishment of

TMDLs within 10 years (a 5-year extension is possible). Subsequent listing

submissions are due every 4 years. (TMDL)

2005: Smaller CAFOs that were issued permits in 2002 should develop and begin

implementation of CNMPs by the end of this year (AFO Strategy)

2005-2010: Round II CAFO permitting by EPA and states to reissue general permits

and individual permits as they expire, incorporating new requirements resulting

from revision of CAFO permit regulations and effluent limitation guidelines plus

refinements to site-specific CNMPs and any additional requirements needed to

achieve water quality goals (i.e., state water quality standards for nutrients,

TMDLs) (AFO Strategy)

Based on revised regulations for the TMDL program issued in July 2000.

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