idaho draft npdes comments2

8/14/2019 Idaho Draft NPDES Comments2

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January 13, 2010

By E-Mail

Nicholas Peak

Regional CAFO CoordinatorEPA, Region 10, Idaho Operations Office

1435 N. Orchard

Boise, ID 83706Email:[email protected]

Dear Mr. Peak:

Idaho Concerned Area Residents for the Environment (ICARE) is pleased to submit these

formal comments on EPAs draft NPDES general permit for concentrated animal feeding

operations (CAFOs) in Idaho (Proposed Permit) and incorporated standards. Thesecomments are submitted on behalf of ICARE and its membership.

I. Introduction / General Comments

While the Proposed Permit addresses a number of flaws, loopholes, and outdatedstandards present in the 1997 permit, the Proposed Permit still fails to address key

requirements of the Clean Water Act (CWA)1, and it must be amended to ensure

valuable prevention, reduction and elimination of animal waste pollutants from Idahos

important natural resources.2

In issuing this permit, the Environmental Protection Agency (EPA) must comply withCWAs stated goal of not merely reducing, but eliminatingpoint source discharges.3

A. Idaho has ongoing difficulties with meeting CWA requirements due to surface

water pollution from animal waste sourcesespecially CAFO wastes.

One of the Idaho watersheds most heavily impacted by animal waste pollution is the

Snake River. Pollutants of concern stemming from or correlated with animal wastesourcesammonia, e-coli, nutrients (particularly phosphorous and nitrogen) and

sedimentare listed across more than 9,000 square miles of the Snake River and its

tributaries.4Exceedance of EPA-approved Total Maximum Daily Loads (TMDLs) for

these pollutants is a chronic problem along portions of the Snakesuch as the Middle

1 33 U.S.C. 1251 et seq.2See 33 U.S.C. 1251(b).3See 33 U.S.C. 1251(a) (1) (emphasis added).4 Idaho Department of Environmental Quality (DEQ) Subbasin Assessment and Total Maximum Daily

Loads for King Hill CJ Strike Reservoir, Snake River Hells Canyon, Mid Snake River/Succor Creek,

and Watershed Management Plans for the Middle Snake River and Upper Snake Rock. Available at:
mailto:[email protected]:[email protected]


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Snake/Upper Snake Rock segment (Milner Dam to King Hill)that run through Idahos

CAFO hotspots.

EPAs historical tendency to underestimate the size and scale of Idahos CAFOs have

seriously hampered past efforts to deal with these pollutants.5 A look at more recent data

on Idahos beef and dairy industries alone provides a much better idea of how big a threatthe states CAFOs really pose to the quality of CWA watersheds.

CAFO threat to surface waters: by the numbers

In 2007 Idaho was home to between 765 and 1,505 cattle & calf facilities (including

dairies) that met EPAs definition of a Medium or Large CAFO.6 Though thesefacilities comprised a fraction of Idahos total dairy and beef cattle operationsbetween

7% and 14%they housed 86% of the states total cattle inventory (a total of 1.95

million cattle).

Between 307 and 495 (or 33% to 40%) of the Idaho operations meeting the EPAdefinition of a CAFO (housing between 32% to 35% of the states total cattle inventory)were located in counties along the Upper Snake Rock stretch of the Snake River and on

top of the Eastern Snake River Plain Aquifer (ESRP).7 Another 135 to 310 (or 18% to

21%) of the Idaho operations meeting the EPA definition of a CAFO (housing between

17% to 19% of the states total cattle inventory) were located in counties along impairedsegments of the Snake River downstream of Upper Snake Rock.

All told, in 2007 nearly half of the states total cattleexcreting as much waste as21,914,240 humanswere housed in CAFOs (comprising, at most, a mere 7.5% of the

states total cattle operations) situated on top of an EPA-designated sole-source aquifer

and/or along 303(d) listed segments of the Snake River. More recent NationalAgricultural Statistics Service (NASS) data suggest that the states total cattle inventory

may have undergone a slight (temporary) dip during the recent recession, but the beef and

dairy industries march towards ever-greater concentration and consolidation has

remained unchecked.

In comparison to the threat to surface water quality posed by the concentration and

volume of livestock waste, the threat posed by human waste is minor. According to theUS Census Bureau, 2008 human population estimates for the Snake River watersheds

largest population centersthe Magic and Treasure Valleystotaled 801,421. Many of

these people live in urban or suburban areas serviced by municipal wastewater treatment

5

For example, EPAs February 2002, Ecological Risk Assessment for the Middle Snake River, Idaho relieswholly on data from a 1993 study (i.e. it does not take into account animal industry growth) to determine

livestock-related pollutant loading to the Middle Snake.6 Source: 2007 Idaho Livestock Census. Because the Livestock Census data are not broken down exactly

according to EPA definitionsthe numbers listed here include operations with inventories of 500+ and

200-499 headthe upper limit of the ranges listed here may include some operations that would not meet

EPAs definition of a Medium or Large CAFO. However, as ISDA data are based on numbers reported in

lengthy surveys that are entirely voluntary, it is also likely that the Livestock Census data itself

underestimates the number and concentration of Idahos livestock.7 See: http://www.idbeef.org/idbc_beefindustry.htm
http://www.idbeef.org/idbc_beefindustry.htmhttp://www.idbeef.org/idbc_beefindustry.htm


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plants that, unlike CAFOs, have been required to continually test and monitor discharge

amounts of pollutants of concern.

CAFO impacts on surface water quality: Data

The raw data and trend analyses from DEQs Upper Snake Rock Surface WaterMonitoring (found in Appendix A of this document) provide a telling snapshot of the

magnitude of Idahos CAFO pollution problem.8 For 6 out of 7 Upper Snake Rock

monitoring sites, total phosphorous exceeded the TMDL at frequencies at and above50%. Not surprisingly, the site with the highest total phosphorous exceedance rate

(83.6%) is immediately downstream of a cluster of Jerome and Gooding County CAFOs.

Figure 1: Upper Snake Rock monitoring sites and area CAFOs9

8Note: Appendix A includes the data for Total Suspended Solids, Total Phosphorous, and E-coli at all 7Upper Snake Rock monitoring sites. Monitoring data for all other Upper Snake Rock pollutants of concern

is available at DEQs Twin Falls Regional Office: 1363 Fillmore St. Twin Falls, ID 83301, (208) 736-21909 Many of the CAFOs pictured here have expanded and new CAFOs have been built since the satellite

photos in this figure were taken in 2003 (Source: Google Earth).


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While it is true that this site is also downstream of the city of Twin Falls, the citys

population center is well upstream of the Crystal Springs sitethe only Upper Snake

Rock monitoring site with a 0% total phosphorous exceedance rate.

Figure 2: Twin Falls in relation to two Upper Snake Rock monitoring sites

Prior to entering the CAFO-crowded southern border of Jerome and Gooding counties,

the rivers total phosphorous TMDL exceedance rate plummets from 79.6% at the MilnerPool area (not pictured) to 0 at the Crystal Springs area26.9 river miles. By contrast,

after entering the stretch and reaching its peak exceedance rate at the Below Box Canyon

site, total phosphorous exceedance rates remain above 50% all the way through King Hill(also not pictured)40.4 river miles.

B. Surface water quality of CWA watersheds impacts groundwater quality and vice-

versa.

Idahos surface and ground water quality are intimately connecteda fact especially well

documented within the Snake River watershed. Along the Thousand Springs reach of theESRP, the aquifer discharges into the Upper Snake Rock segment of the Snake River at a

rate of 5,200 cfs, and irrigation with [Snake River] surface water accounts for

approximately 60% of total recharge to the [ESRP] aquifer.10

10 From Eastern Snake River Plain Surface and Ground Water Interaction, available at

http://www.if.uidaho.edu/~johnson/ifiwrri/sr3/esna.html#Hydrogeology; and Laura De Grey and Paul Link,

Digital Geology of Idaho: Snake River Plain Aquifer. Available at

http://geology.isu.edu/Digital_Geology_Idaho/Module15/mod15.htm
http://www.if.uidaho.edu/~johnson/ifiwrri/sr3/esna.html#Hydrogeologyhttp://geology.isu.edu/Digital_Geology_Idaho/Module15/mod15.htmhttp://geology.isu.edu/Digital_Geology_Idaho/Module15/mod15.htmhttp://www.if.uidaho.edu/~johnson/ifiwrri/sr3/esna.html#Hydrogeologyhttp://geology.isu.edu/Digital_Geology_Idaho/Module15/mod15.htm


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Figure 3: ESRP groundwater flow and discharge into Snake River11

Figure 4: Surface water groundwater interaction along the ESRP12

11 Source: http://geology.isu.edu/Digital_Geology_Idaho/Module15/RRTESRPflowmap.gif12 Source:http://www.if.uidaho.edu/~johnson/ifiwrri/sr3/esna.html#Hydrogeology
http://www.if.uidaho.edu/~johnson/ifiwrri/sr3/esna.html#Hydrogeologyhttp://www.if.uidaho.edu/~johnson/ifiwrri/sr3/esna.html#Hydrogeologyhttp://www.if.uidaho.edu/~johnson/ifiwrri/sr3/esna.html#Hydrogeology


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DEQs December 2009 Ground Water Quality Technical Report No. 38, Possible

Sources of Nitrate to the Springs of Southern Gooding County, Eastern Snake River

Plain, Idaho (December 2009 Technical Report) provides a glimpse of the severity ofCAFO-related groundwater contamination in the ESRP. In spring discharge at an Upper

Snake Rock monitoring site, DEQ found 6 types of livestock-only antibiotics along with

a number of other personal care products and pharmaceuticals (including reproductivehormones and fecal steroids) that are commonly used in or found on Idahos Beef and

Dairy CAFOs (December 2009 Technical Report, 13-14). Further:

A nitrogen loading analysis for the western part of the ESRP (Baldwin et.

al, 2006) found the largest potential source of nitrogen in the area was

nitrogen from fertilizer applications (47%). Other substantial sources of

nitrogen were from dairy, beef, and other confined animal operations(43%). The remaining 10% of nitrogen sources include legume crops,

industrial contribution (wastewater reuse), precipitation, and urban or

domestic waste. A majority of the potential nitrogen loading in spring

water at Snake River Farms likely comes from agriculture and livestockoperations within southeastern Gooding County and the southern part of

Jerome County (Baldwin et. al, 2006). Land use northeast and up-gradientof Snake River Farms is predominately irrigated agriculture and confined

livestock operations. (December 2009 Technical Report, 15).

That the nitrogen loading due to fertilizer applications in this area exists in tandem withnitrogen loading due to CAFOs is no coincidence: both are a direct result of the CAFO

model of production. CAFO operators grow huge monocultures of nitrogen-needy feed

cropslike cornthat when farmed intensively and without proper crop rotation, requirecommercial fertilizer application over and above what is readily available in cattle

manure. Of course, in attempts to save money on expensive commercial fertilizer, the

data also indicates that many of these operators are applying cattle manure at rates greaterthan that of their crops phosphorous uptake.13

Evidence from both DEQ and ISDA thus shows that CAFO run-off, CAFO-waste-contaminated irrigation return flows and groundwater discharge into surface-waters are

directly impacting surface water quality in Idahos CWA watersheds; the evidence also

shows that leaky lagoons, irresponsible land application practices, and CAFO-waste-

contaminated irrigation water contribute significantly to poor groundwater quality.14 AndDEQs data plainly demonstrates that CAFOs are the only possible source of an array of

emerging contaminants in both surface and ground water.

13 In its 2007 Dairy MOU Annual Report, ISDA freely admits that 126 of 397 fields tested were over the P

threshold (ISDA 2006 Dairy MOU Annual Report, 6). Importantly, these tests were run on dairy farms

whose well nitrates were 10 ppm or greater.14 In yet another telling admission, ISDA writes A concern of the industry, regulators, and those agencies

that established the phosphorous threshold is because of all the years of nutrient applications, several fields

are now above tolerance (ISDA 2006 Dairy MOU Annual Report, 7). See also: DEQs Trend Analyses

for Idahos Nitrate Priority Areas 1994-2007


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Figure 5: Dairy CAFO Lagoon thinly separated from major canal

C. CAFO wastes are known sources of existing and emerging contaminants that pose

increasingly severe threats to public and environmental health.

CAFO wastes endanger public and environmental health because animal excrementcontains pathogens dangerous to people, other domestic animals, and wildlife, including a

number of known human viral, bacterial, and parasitic pathogens, such as influenza,

salmonella, E-coli (particularly 0157:H7), yersinia, leptospora, cryptosporidium parvum,giardia lamblia, and probably several yet to be discovered.15 In their 2005 review of the

available literature, Rogers and Haines found that between 61 to 75% of emerging human

pathogens are zoonotic and that the overwhelming majority of these pathogenic zoonosesthat commonly infect humans are related to animal husbandry practices (EPA CAFOPathogens Literature Review, 4). As Rogers and Haines note, regulatory limits for many of

the pathogenic contaminants commonly found in CAFO wastes have not been established,

and would not at present be regulated under the NPDES program (EPA CAFO Pathogens

Literature Review, 5). However, ICARE firmly believes that the function of the NPDESprogram must be viewed via the larger lens of the CWA and EPAs mission: though it may

15 Rogers, Shane, and John Haines. Detecting and Mitigating the Environmental Impact of Fecal Pathogens

Originating from Confined Animal Feeding Operations: Review. National Risk Management Research

Laboratory Office of Research and Development United States Environmental Protection Agency.

Cincinnati, OH (September 2005): 4-10. Further references to this source will appear parenthetically within

the text as EPA CAFO Pathogens Literature Review.


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not specifically address these contaminants, the Proposed Permit must proceed with a full andcomplete awareness of the threat they pose to public health and the environment

Emerging contaminants found in CAFO wastes pose an equal if not greater threat to

public health and the environment than the well-studied pathogens listed above. In 2007,

a previously unknown strain of Methycillin-Resistant Staphylococcus Aureus (MRSA)was discovered in livestock herds in the Netherlands.16This novel strain, dubbed

Livestock Associated (LA) MRSA, is genetically distinct from and resistant to more

classes of antibiotics than either Hospital Acquired (HA) or Community Acquired(CA) MRSA (JHU presentation). LA MRSA has subsequently been discovered in US

livestock herds in 2009 (JHU presentation). Importantly, MRSA need not be ingested or

inhaled to cause infection: it can infect open or exposed wounds on the skin (JHUpresentation). Should LA MRSA find its way into the Snake River or other Idaho surface

waters, it would be arguably the largest waterborne threat to public and environmental

health the state has ever seen.

Emerging contaminants from CAFOs are not confined to pathogens: CAFO livestock are

routinely administered subtherapeutic doses of antibiotics and other pharmaceuticals. The

vast majority of these drugs are excreted in the animals waste:

As much as 75-80% of an antibiotic may pass undigested through an

animal, thus its waste may not only harbor high concentrations ofantimicrobial-resistant bacteria, but also their resistance genes and raw

(undigested) antimicrobial compounds

(EPA CAFO Pathogens Literature Review, 17).

Antimicrobial resistance is widely documented in US CAFOs and poses a serious threat

to human health (EPA CAFO Pathogens Literature Review, 16-17). Numerous studies

have documented the threat posed to aquatic species by endocrine-disrupting hormoneslike those commonly used to promote growth and spur milk production in CAFO

livestock.17Whether the observed effects of these hormones on wildlife may be

transferrable to humans is uncertain, but is certainly a possibility and cause for concern.

The CWA and NPDES program need not specify each and every one of these known

pathogens and emerging contaminants to protect human health and environment, but theProposed Permit absolutely must ensure that CAFOs do not dischargeCAFO wastes

must be continually tested and monitored, and the Proposed Permits penalties for non-

compliance must be strictly enforced. Industry groups may balk at the cost and time

required to properly implement the Proposed Permits testing and monitoringrequirements, but ICARE is certain that even industry would agree that the cost of

16 From a presentation by Johns Hopkins University resarchers Dr. Meghan Davis and DAnn Williams at

the Idaho State Department of Agriculture Negotiated Rule Making on Pathogen Drift from Dairies

Utilizing Pressurized Irrigation. January 12, 2010. Further references to this source will appear

parenthetically within the text as JHU presentation.17 One such recent study (of bass in the Potomac River) received coverage in the Washington Postunder the

headline Male Bass Across Region Found to be Bearing Eggs. Farenthold, David A. September 6, 2006.


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spreading antimicrobial resistance, experiencing aquatic species die-offs and initiating

pandemics would be steeper.

Efforts to reduce these pollutants and/or deal effectively with emerging contaminants that

do not address CAFO waste are doomed to failure.

D. History of CAFO noncompliance with the CWA.

Double C, Bruneau Cattle Co., C Bar M, Van Der Steldt. Few inspections, but look at therate of violations given the few inspections that did happen

ISDA history of undermining EPAs CWA enforcement authority. Lax attitude towardenforcement.

On March 3, 2009, in a letter to ISDA Director Celia Gould, EPAs Michelle Pirzadeh

(Acting Regional Administrator for EPA Region 10) stated that preliminary review of the

existing Beef Cattle and Dairy MOUs identified concerns stemming from the

limitations the MOUs place upon EPAs statutory inspection and enforcementauthorities large enough to spur EPAs withdrawal from them.18

(cite dairy & beef MOU reports: number of inspections, number of discharges, severity ofconsequences).

The state continues to allow BMPs to be defined by outdated science and industry

standards (and thus, thanks to the safe harbor provisions of the states Beef CattleEnvironmental Control Act and Rules Governing Dairy Waste, implicitly allows further

water contamination) .This is not a coincidence.

Talk about chemical fertilizers: nitrogen vs. phosphorous. Industrial and municipal point

sources are required to treat their waste prior to application. The states CAFOs, though

generating waste that is equally, if not more, hazardous and just as voluminous as thestates various industrial and municipal point sources, are exempt from this requirement.The problem with this is simple: CAFOs are not agricultural operations. They are

industrial. They should be regulated and dealt with just as stringently as other industrial

point sources.

To ensure compliance with state and federal law the Final Permit must provide

heightened oversight and enforcement over Idahos CAFOs. The Proposed Permitsrequirement that Manure, litter, and process wastewater handling, treatment, and

management shall not create an environmental or public health hazard and shall not result

in the contamination of drinking water in exceedence of Idaho Rules for Public Drinking

Water Systems is a laudable expression of this fact (Proposed Permit, III.D.5., p.26).However, the Proposed Permit is unclear as to how this provision might be enforced. To

assist you in making these changes, we offer the following detailed comments.

18 Michelle Pirzadeh to Celia Gould. March 3, 2009, pg. 2.


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II. Recommendations

A. EPA should operate under a presumption that all large CAFOs and all CAFOs

utilizing pressurized irrigation systems to land apply waste discharge and require

NPDES permits.

Historically the states large CAFOs have discharged (again, look at # of inspections vs.

violations); many of these facilities utilize pressurized irrigation systems configured so as

to guarantee discharge (DEQ model). Yet EPA in its Proposed Permit would allow largeCAFOs to self certify that they will not discharge, and thereby avoid the need to obtain a

NPDES General Discharge Permit.

In Waterkeeper Alliance v. EPA, the Court noted that, in defending its decision to require

all large CAFOs to apply for NPDES permits, EPA failed to argue for a presumption that

large CAFOs actually discharge.19In raising the point, the Court signaled that if EPAwere to implement such a presumption it could compel all large CAFOs to either apply

for a NPDES permit or to require that they prove that they meet the zero dischargeeffluent limitation.20

A presumption that large CAFOs actually discharge is not only appropriate, but also

critical to any CAFO permitting scheme that aims to meaningfully protect the quality of

Idahos watersheds.21As tailored to the Idaho permit, all CAFOs that meet the largeCAFO threshold in the Definitions section of the proposed permit or utilize pressurized

irrigation systems (up to within _____ ft. of surface waters) to land apply waste should be

presumed to actually discharge and therefore be required to apply for a CAFO NPDESGeneral Discharge Permit, unless they can satisfactorily demonstrate that they do not and

will not violate the zero discharge standard.22

The Case Law Supports Establishing This Presumption:

Legal Authority for establishing a Presumption that large CAFOs discharge

19See Waterkeeper Alliance v. EPA, 399 F.3d 486, 506 (2d Cir. 2005). We also note that the EPA has notargued that the administrative record supports a regulatory presumption to the effect that Large CAFOs

actually discharge. As such, we do not now consider whether, under the Clean Water Act as it currently

exists, the EPA might properly presume that Large CAFOs or some subset thereof actually discharge.

Throughout the remainder of this section CAFO is used generically to mean a confined (or concentrated)

animal feeding operation, not as it is used in the Proposed Permit, viz., as meaning only those CAFOs that

admit to discharging.20See id.21See 33 U.S.C. 1370 (affirming that States may adopt effluent limitation, effluent standard, prohibition,

pretreatment standard, or standard of performance, provided that it is not less stringent than the federal

rule);see also Homestead Mining Co. v. EPA , 477 F. Supp. 1279, 1283-84 (S.D. 1979) (holding EPA may

not disapprove standards for being too stringent; to do so would violate both the statute itself and the case

law interpreting it).22 For CAFOs utilizing pressurized irrigations systems to land apply waste to be exempt from this

presumption, the operator should have to produce a certification from qualified DEQ staff confirming the

operators assertion that the irrigation configuration actually meets the standard.


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That agencies may establish evidentiary presumptions is a long settled principle of

administrative law.23 To determine the validity of given presumption, courts evaluate its

consistency with the Act and [] rationality.24 More specifically, there must be asound and rational connection between the proved and inferred facts.25 Importantly,

regulatory presumptions are entitled to substantial deference.26

There is a clear connection between the proved fact that a facility is a large CAFO and

the inferred fact that it actually discharges. Nationwide, large CAFOs often do not have

enough land to absorb the manure that they produce, which is one of the leading causesof excess nutrient build-up.27(In Idaho specifically, according to the Idaho State

Department of Agricultures own documents, cow numbers in both the Treasure Valley

and the Magic Valley already far exceeded the available agricultural land base 10 years

ago.28(total irrigatable acreage in the Magic Valley from NASSconvert pounds ofphosphorous, f possible)) A 1997 USDS study revealed that large CAFOs contribute the

lions share of excess nutrients that the industry generates.29Poultry operations are

particularly problematic because of the unusually high volume of nutrients in poultry

litter.

30

According to the EPA, while poultry operations contribute approximately 50% oftotal recoverable nitrogen, they are able to absorb less than 10% of that amount through

on-farm use.31 Not surprisingly, EPA has concluded that the unparalleled increase inexcess nutrient levels in the mid-Atlantic and Southeast between 1982 and 1997 was

mostly the result of the number and concentration of large poultry and hog operations in

those regions.32 Similar findings have been issued in CAFO-overrun areas of the

Midwest and West.33

23See e.g., NLRB v. Baptist Hospital, 442 U.S. 773, 787 (1979); See also Republic Aviation Corp. v. NLRB, 324 U.S. 793, 804-80 5 (1945).24NLRB v. Baptist Hospital, 442 U.S. 773, 787 (1979) (citing Beth Israel Hospital v. NLRB, 437 U.S. 483, 501 (1978)).25 Id., at 787

26 See Id., at 796 (Justice Brennan Concurring);NLRB v. Los Angeles New Hospital, 640 F.2d 1017, 1020(9th Cir. 1981).27SeeNational Pollutant Discharge Elimination System Permit Regulation and Effluent Limitation

Guidelines and Standards for Concentrated Animal Feeding Operations, 68 Fed. Reg. 7176, 7180 (Feb. 12,

2003) [hereinafter2003 Federal Rule Preamble]28 Beddoes, J.C., and Mitchell, M.C. Idaho Dairy Nutrient Management. ASAE Annual International

Meeting. Toronto, Ontario, Canada. 19-21 July 1999. Pg. 2.292003 Federal Rule Preamble30 Though at present Idaho has no significant poultry CAFO presence, a glance at the newly minted Cassia

County poultry ordinance (which allows up to 4.2 million birds under a single roof), and a Magic Valley

chicken-processing plant in the finishing stages of the permitting process that proposes to process more

than 12,000 birds an hour indicate that EPAs NPDES Permit for Idaho CAFOs must be prepared so as to

deal effectively with the unique pollution challenges posed by poultry CAFOs.31

See 2003 Federal Rule Preamble;supra note 30, at 7180.32Id.33 See: Caylor, Bob. Livestock Tied to Water Quality. The News Sentinel. Fort Wayne: Indiana. January16, 2009. Available at: http://www.news-sentinel.com/apps/pbcs.dll/article?

AID=/20090116/BUSINESS/901160315. Keefer, Janelle. Water Survey Finds High Bacteria Level Near

Farms. Daily Telegram, August 1, 2002. Available at:

http ://www.lenconnect.com/display/inn_news/news05.txt. US Dept. of Agriculture Soil Conservation

Service, Upper North Bosque River Watershed Plan and Environmental Assessment, August 1992, p. 10.

Hauck, Larry, "Fecal Coliforms: Their Presence & Meaning," in: Bosque River Advisory Committee,

Briefing Papers (Stephenville, Texas, January 23, 1996), pp. D-3, D-4.
http://www.news-sentinel.com/apps/pbcs.dll/article?AID=/20090116/BUSINESS/901160315http://www.news-sentinel.com/apps/pbcs.dll/article?AID=/20090116/BUSINESS/901160315http://www.lenconnect.com/display/inn_news/news05.txthttp://www.lenconnect.com/display/inn_news/news05.txthttp://www.news-sentinel.com/apps/pbcs.dll/article?AID=/20090116/BUSINESS/901160315http://www.news-sentinel.com/apps/pbcs.dll/article?AID=/20090116/BUSINESS/901160315http://www.lenconnect.com/display/inn_news/news05.txthttp://www.lenconnect.com/display/inn_news/news05.txt


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Taken as a whole, this line of evidence led the WaterkeeperCourt to declare, In our

view, the EPA has marshaled evidence suggesting that such a prophylactic measure

[requiring all Large CAFOs to apply] may be necessary to effectively regulate waterpollution from large CAFOs.34 At the very least, this data establishes a rational

connection between large CAFOs and pollution discharges.

Establishing a Presumption That Large CAFO Operations and CAFOs utilizing

pressurized irrigation systems to land-apply waste discharge is consistent with the Clean

Water Act.

The presumption that large CAFOs actually discharge is clearly consistent with the goalsof the Clean Water Act. As previously mentioned, the Acts stated objective is not merely

to reduce, but to eliminate point source discharges to navigable waters.35 Yet, under the

terms of the Proposed Permit, large CAFOs are only brought under the permit ifoperators voluntarily admit that their facilities propose to discharge orafterEPA

detects a direct surface water discharge.36

Experience demonstrates that CAFO operators will not voluntarily subject themselves to

regulations, and will therefore not apply for NPDES permits if they are not required to do

so. For example, in the preamble to the 2001 proposed rule, the EPA noted that only

about 2,500 of the 12,000 CAFOs that should have applied for permits had actually doneso.37 Based on the continued CAFO-related impairment of neighboring watersheds, EPA

concluded that many of these large facilities were actually discharging and should have

applied for a permit.38 Similarly, few if any of the beef, dairy, and soon-to-be poultryfacilities in Idaho that discharge into the states waters will apply for the Proposed

Permit, claiming that their facilities do not propose to discharge. An enforcement

scheme that necessarily requires pollutants to be discharged before adequate regulationstake effect directly contravenes the Clean Water Acts goal of eliminating discharges.39

Perhaps even more troubling, EPA will have great difficulty detecting illegal discharges.EPA has reported in the past that the sporadic nature of CAFO discharges makes it

extremely difficultand time consumingto document discharges from individual

facilities.40Especially considering the resource constraints that EPA officials report, with

a shortage of inspectors to enforce environmental lawsa fact most recently commentedon by EPA at the third public hearing for the Proposed Permit.41 It seems highly unlikely

that EPA will have the time and resources necessary to directly observe discharges from

34Waterkeeper Alliance v. EPA, 399 F.3d 486, 506 (2d Cir. 2005).35 See 33 U.S.C. 1251(a) (1).36

See Proposed Permit Part I.B.37 National Pollutant Discharge Elimination System Permit Regulation and Effluent Limitation Guidelines

and Standards for Concentrated Animal Feeding Operations, 66 Fed. Reg. 2960, 2963 (Jan. 12, 2001)[hereinafter2001 Federal Rule Preamble].38See 2003 Federal Rule Preamble;supra note 30, at 7180.39See 33 U.S.C. 1251(a) (1).40 Brief of Respondents at 72, Waterkeeper Alliance Inc. v. EPA, 399 F.3d 486 (2d. Cir. 2005) (No. 03-

4470(L)).41 EPA, Proposed Permit Public Hearing. Idaho Department of Fish & Game Nampa Office. December 10,

2009.


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any significant number of the states 765 (minimum) beef and dairy CAFOsto say

nothing of its sheep CAFOs and incoming poultry CAFOsthat meet EPAs definition

of a Large CAFO.

In sum, a presumption of discharge that requires large operations to apply for NPDES

permits is not only consistentwith the broad purposes of the CWA but necessary tocomply with the WaterkeeperCourts mandate for regulation in fact, not just in

principle.42 Beyond this, in light of the evidence detailed above, we believe that a

decision notto establish a presumption that Large CAFOs or CAFOs utilizing pressurizedirrigation systems to land apply waste actually discharge would be arbitrary and

capricious.

Industry representatives may complain that such a requirement would be financiallyinconvenient, or that the paperwork required by the Proposed Permit as written is a

disincentive to apply. However, the CWA does not afford compromise in order to relieve

industry of minor inconveniences. In the words of one observer, the CWA seeks to to

identify classes and categories of polluting or environmentally destructive activities thatthreatened human health and the environment, and then to imposestringentstandards on

their performance.43 In other words, the Clean Water Actand, by extension, thoseprograms issued under its authorityis concerned with reducing and eliminating

pollution, not appeasing industry. EPA must design and implement its Idaho permitting

program with this goal in mind.

B. EPA should strengthen the Proposed Permits various (groundwater, soil, and

waste) testing, monitoring, and reporting requirements.

Under the NPDES system, certain point sources are required to implement pollutant

monitoring and reporting programs, while othersnotably CAFOshave historicallybeen exempt from these requirements. As written, the Proposed Permit goes a long waytoward rectifying this situation. Yet, though welcome, the Proposed Permits testing,

monitoring, and reporting requirements are still not stringent enough to meet CWA goals.

Because there is a significant data gap (especially with regard to Idaho CAFOs

groundwater and wastewater) it could be the case that some of the surface water problems

associated with CAFOs are not due to mismanagement of waste on the CAFOsthemselvesit is possible that these problems are a result of the misapplication of third-

party waste. But if that were the case, we would think industry would welcome the

opportunity to utilize the Proposed Permits testing requirements to clear its reputation.

Certainly the cost of the testing in such a case would be outweighed by the substantialeconomic benefit to the industry of being able to back up its claims of environmental

stewardship with hard data and put public misgivings to rest.

42Waterkeeper Alliance Inc v. EPA, 399 F.3d 486, 498 (2d Cir. 2005).43 Richard Lazarus, The Greening of America and the Graying of United States Environmental Law:

Reflections on Environmental Laws First Three Decades in the United States, 20 VA. ENVTL. L.J. 75, 78

(2001).


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Further, having the testing to show that third-party application is indeed a problem would

be invaluable to state regulators and lawmakers in dealing with it.

Groundwater

The need to protect groundwater in any final permit is essential. Over half of Idahospopulation resides side-by-side with the Magic and Treasure Valleys CAFOsin areas

with quick-draining sandy soils, basalt aquifers and typically high water tablesand (as

already discussed) their drinking water is especially vulnerable to CAFO pollution.44

In the past, industry might have attempted to duck this requirement by pointing out that

both DEQ and ISDA conduct water monitoring, and argued that asking industry toreproduce work already being conducted by state agencies is an inefficient and

unnecessary use of funds. However, now that the state legislature has cut all funding for

surface and groundwater monitoring, this argument no longer holds up.45Both surfaceand ground water quality are imperiled by the states elimination of funding. At least for

the foreseeable future, the only means of ensuring that Idahos CAFOs meet the ProposedPermits zero discharge and 401 certification requirements is for CAFO operators toaccept responsibility for monitoring of pollutants of concern at and near their facilities

and land application areas.

For these reasons and more, ICARE urges EPA to include ground and surface watermonitoring for these common animal waste pollutants in the final permit: total nitrogen,

nitrate, phosphorous, ammonia, and e-coli. ICARE recommends that these tests be

performed on a monthly basis (quarterly or annually for smaller facilities). ICARE alsoasks EPA to require the following more specialized tests (these may be run less

frequently than the previously listed contaminants, but should be performed annually at a

minimummore frequently if tests for other pollutants show increasing trends):antibiotics, hormones, bacterial DNA and nitrogen isotopes.

ICARE is certain that industry interests will point out that NPDES is neither designed nor

intended to regulate groundwater. Aside from the evidence presented in the introductorysection of this document illustrating that, for pollutants of concern associated with or

stemming from animal waste sources, Idahos surface and groundwater issues are

inseparable, there is the obvious flipside of industrys argument: Congress obviously didnot intend for the CWA or the programs administered under its authority to execute a

simple Kansas City shuffle and transfer the burden of the nations water pollution

problems from surface to groundwater. Yet EPAs past decision to exempt IdahosCAFOs from groundwater monitoring and reporting has led to several well-known and

highly-publicized instances of large CAFO operators attempting to do exactly that.46

44 Additionally, ground water supplies 95% of the water used in Idaho households and provides drinking

water to more than 200 Idaho cities and towns, Source: DEQ Website. Available at:

http://www.deq.state.id.us/WATER/prog_issues/ground_water/nitrate.cfm45 Funding from Idaho Power does ensure that some limited monitoring will continue along Upper Snake

Rock.46 Examples include, but are not limited to: the installation and operation of injection wells at Double C

feedlot in Burley, the contamination of 22 private domestic wells at (the now defunct) Sunnyside Feedlot in
http://www.deq.state.id.us/WATER/prog_issues/ground_water/nitrate.cfmhttp://www.deq.state.id.us/WATER/prog_issues/ground_water/nitrate.cfm


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Legally, there are strong grounds for compelling CAFO operators to monitor

groundwater. Direct groundwater monitoring is a uniquely accurate means of detectinggroundwater contamination.47

Furthermore, numerous Circuit Courts have held that groundwater discharges should beregulated under the NPDES program because of the potential for groundwater discharges

to contaminate hydrologically connected navigable waters.48 At the very least, this line of

cases dictates that CAFOs located above water that is hydrologically connected tonavigable waters must undertake thorough groundwater monitoring.49 A failure to require

these facilities to monitor groundwater discharges, which can contaminate surface waters,

would plainly undermine the Acts goal of eliminating point-source discharges.50

The failure to monitor groundwater would also create the potential to undermine Idahos

Water Quality Standards and therefore, violate the CWAs proscription that NPDES

permits may only be issued where such permits ensure that every discharge of pollutants

will comply with all applicable effluent limitations and standards.

51

Baseline and continued groundwater monitoring is a reasonable step towards ensuringthat the NPDES Permit for Idahos CAFOs adheres to the true spirit and purpose of the

CWA.

Waste

Weiser, ever-increasing nitrate contamination (and evidence of bacterial and pharmaceutical

contamination) near several large industrial dairies in Marsing (an October 2009 sample showed nitrate at

170 mg/l), and widespread groundwater contamination issues in the CAFO-burdened ESRP.47 Whereas monitoring soil surface conditions only detects superficial contamination and provides little

meaningful feedback, groundwater monitoring can detect infiltration of animal waste into groundwater,

where it may also contaminate hydrologically connected drinking water wells as well as surface waters and

wetlands. Neal Wilson, Soil Water and Groundwater Sampling, 5-8, CRC Press (1995).48See Washington Wilderness Coalition v. Hecla Min. Co., 870 F.Supp. 983, 990-991 (E.D. Wash. 1994)

(holding that allegations were sufficient to support a claim under the CWA because they alleged a

hydrological connection between seepage into groundwater and the nearby surface waters of a creek andlake); Sierra Club v. Colorado Refining Co., 838 F.Supp. 1428, 1434 (D. Colo. 1993) (holding that

allegations that a defendant has and continues to discharge pollutants into the soils and groundwater

beneath its property which then make their way to a navigable water through the groundwater state a cause

of action under the CWA; Williams v. Pipe Line Co. v. Bayer Corp., 964 F.Supp. 1300, 1320 (holding that

discharge of petroleum into groundwater that is hydrologic ally connected to surface waters is a violation of

the CWA);Idaho Rural Council v. Bosma, 143 F.Supp.2d 1169, 1180 (D. Idaho 2001) (holding that theCWA extends federal jurisdiction over groundwater that was allegedly polluted by a dairy that is

hydrologically connected to surface waters that are waters of the United States).49 The states own modeling of the ESRP considers several portions of the aquifer to be interconnected with

the Snake River. The United States Geological Survey (USGS) has even more advanced modeling that

EPA could utilize to determine which sections of the aquifer are hydrologically connected.50See 33 U.S.C. 1251(a) (1).51Waterkeeper Alliance v. EPA, 399 F.3d, 486, 498 (2d Cir. 2005) (emphasis added);see also 33 U.S.C.

1342(b) (requiring that state permitting programs apply and insure compliance with, any applicable

[effluent limitations and standards].).


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ICARE applauds the Proposed Permits waste analysis and record keeping requirements.

We are certain that knowledge of the nutrient content and ratio of each facilitys

wastewaters will reduce the potential for surface water pollution andassist operators inmore efficiently managing their waste and feed crops.

ICARE does feel that the Proposed Permit could substantially benefit from some minortweaks and additional testing requirements. As with the Proposed Permits other testing

requirements, ICARE believes that these requirements could be more effectively

managed by implementing a sliding scale that is sensitive to site-specific conditionsthisscale might require different testing frequencies for different-sized facilities or increase

or decrease (up to a point) testing frequencies for good or bad behavior (based on number

of complaints, number of non-compliance notifications, etc.). Devising a model flexible

and robust enough to make this idea work may take some time, but would be worth theeffort in the long run. ICARE also feels thatparticularly given the increasing threat of a

flu pandemic and/or spread of antimicrobial resistant pathogensEPA must require some

kind of pathogen analysis for every facilitys waste at least once a year.

Currently, several segments of the Snake River downstream of CAFOs have consistently

high pathogen counts.52 DEQ has been unable to locate the source of these pathogens andcorrect the problem in large part because of a significant data gap: Idahos CAFOs have

not been compelled to screen their wastewater for pathogens or perform DNA

fingerprinting on wastewater or solid waste bacteria that could definitively tie particular

facilities to particular waterborne pathogens.53DEQ has the data to show that, for themost part, Southern Idahos fish hatcheries are in compliance and are not significant

contributors of pollutants of concern to the Mid Snake.54 Industrial point sources

discharging into the Mid Snake are required to treat and test their wastes prior todischarging. Though the only possible remaining culprits are the regions numerous

CAFOs, without the necessary data DEQ and EPA are powerless to fix the problem. 55

Thus, to bring the many 303(d) listed segments of the Snake River into compliance with

established TMDLs, DEQ and EPA need to have data from all point sources showing

what, if any, pollutants of concern they are contributing. If those point sources are notcontributing, then EPA, DEQ and Idaho lawmakers will know to start looking more

closely at non-point sources.

Soil

The permits soil testing requirements must either be stricter across the board or moreefficiently implemented through a sliding scale. Given that as early as 2005, 31% of all

facilities with well nitrate levels greater than 10mg/L were above phosphorous

52 See: Appendix A.53 Conversation with DEQ Twin Falls Regional Office staff, January 12, 2010.54 Id. DEQ asserts that when test results reveal that a hatchery is out of compliance, the operator is assessed

a steep fine.55 To ICAREs knowledge this is the same data gap that hamstrung EPAs case against Burleys Double C

Feedlot: when the single test that had been performed was called into question by the court, EPA had no

other testing history to fall back on.


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thresholds, and that ISDAciting philosophical differences with the more conservative

2007 NRCS 590 standardhas obstinately continued utilizing a 10-year-old nutrient

standard that doubtlessly contributed to the formation of the problem in the first place,there is no reason to believe that soil quality has since improved. Indeed, there is every

reason to believe that soil quality (and, therefore, potential for surface-water run-off) at

CAFO facilities has gotten much worse. To ensure that CWA goals are met, EPA mustapproach the Proposed Permits soil testing requirements assuming the worst rather than

the best.

ICARE urges EPA to seriously consider requiring CAFOs to conduct biannual (spring

and fall) soil testing. At the very least, EPA should require more frequent soil testing at

facilities whose wells exhibit nitrate levels greater than 10mg/L: ISDAs previous work

has established that there is a significant correlation between facility groundwaterproblems and phosphorous threshold exceedance in facility soils.

Cost

Undoubtedly, these testing and reporting requirements will cost Idahos beef and dairyproducers some money. However, as the Supreme Court explained, Congress devised the

CWA with such economic consequences in mind:

Prior to the passage of the [Clean Water] Act, Congress had before it areport jointly prepared by EPA, the Commerce Department, and the

Council on Environmental Quality on the impact of the pollution control

measures on industry. That report estimated that there would be 200 to300 plant closings caused by the first set of pollution limitations.

Comments in the Senate debate were explicit: There is no doubt that we

will suffer some disruption in our economy because of these efforts; manymarginal plants may be forced to close.

(EPA v. National Crushed Stone, 449 U.S. 64, 80 (1980)).

Economic inconveniences or difficulties are clearly not sufficient to justify weakeningCWA programs. To allow industrys bottom line to dictate the form of the final permits

requirements would be an outright betrayal of the public interest and the CWAs purpose:

there is no possible justification sufficient to shift the burden of industrys pollution ontothe people of Idaho (whose state government cannot at present afford to continue

monitoring the groundwater to determine whether industry is in compliance or not).

Industrys waste is industrys responsibility. Industry cannot be allowed to continuefeeding at the public trough at the expense of the public and environmental health.56

However, there are several measures EPA could implement to offset the cost of theserequirements. It could more equitably distribute the financial burden by implementing a

56 Industry arguments that Idahos CAFOs are vital to the health of the states economy are circumstantial

at best and deeply flawed and deliberately misleading at worst. There is plenty of evidence suggesting that

CAFOs ultimately cost rural communities more than they contribute, and that smaller-scale sustainable

animal husbandry practices are both more profitable for operators and a greater economic and social good

for rural communities.


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sliding scale requiring different testing frequencies for facilities of different sizes: as it is

a matter of common sense to presume that large CAFOs and CAFOs utilizing pressurized

irrigation systems discharge, so it is a matter of common sense that large CAFOs pose agreater potential threat to surface water quality and should be required to test more

frequently than small or medium-sized CAFOsthe more waste a facility generates, the

greater its potential to inflict serious damage on the surrounding environment. It alsomakes sense to presume that Large CAFOs can more easily absorb the additional costs

that more frequent testing would entail.

C. Keep the Proposed Permits manure transfer record-keeping requirements, and

add a requirement to report the amount of acreage third-party receivers will apply

waste to.

ICARE realizes that this issue has already been reviewed by the courts, but we feel the

need to address it regardless: the loophole in which, once transferred to a third-party

recipient, CAFO waste is somehow magically transformed into a product on a par with

commercial fertilizer is completely ludicrous. This loophole violates the purpose of theCWAs designation of CAFOs as point-sources: A CAFO is a point source because of

the sheer volume and concentration of waste it produces; the purpose of designatingCAFOs as point sources was to ensure that the hazardous wastes generated by the CAFO

model of production would be phased out as sources of pollutants of concern to US

waters. Yet the loophole has the effect of ensuring quite the opposite: as it becomes moredifficult for CAFOs (of any size) that accept responsibility for all of their waste and apply

only on facility lands to meet the Permits requirements, the perverse incentive to avoid

responsibility for waste by haphazardly disposing of it to third-parties becomes evergreater. As CAFOs become increasingly more concentrated and lose more irrigable land

to development and sprawl, this perverse incentive will pose a huge risk to surface water

quality.

Apart from the source of the fertilizer, there are very real and tangible differences

between commercial fertilizer and third-party land-applied CAFO-waste. (list

differences). It is painfully obvious that this was an equivalence concocted out of politicalexpediency by persons who know absolutely nothing about farming: it is an equivalency

based in pure fantasy, and having nothing whatsoever to do with facts.

Obviously, fixing this problem will require a rewrite of the law or another court battle. It

is our opinion that both of these options should remain on the table. In the meantime,

however, EPA would be doing a great service to Idahos citizens, lawmakers, and

regulators by keeping the Proposed Permits manure-transfer reporting requirementsintact as written, and by adding a requirement to report the amount of acreage third-party

receivers will apply waste to. (Idaho pollution abatement from nonpoint sources)

(319, non-point source money).

What about stockpilers? Use Michelles language here. Here, the waste isnt being used

as a commercial fertilizer.


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D. Synthetic liners

States peculiar reading of the ASAE standard for lagoon engineering. Initial seepagevs. continual seepageThe standard does not take into account special geologic

circumstances At the very least, this should be a requirement in areas vulnerable to

groundwater contamination or with a direct hydrologic connection to surface water (ontop of basaltic aquifers (or portions thereof)such as in the ESRP, or above Marsing).

E. Waste treatment

F. Require individual permits for CAFOs located within impaired watersheds

Can grant temporary coverage under the general permit to avoid a backlog of unpermitted

point sources.

G. Revamp 24-hour 25-year storm water discharge calculations and assumptions to

conform to up-to-date climate science

2006 MOU Annual Report: increase in discharges due to heavy winter rains. As Idahos

climate heats up, the snow pack decreases, winter precipitation will have a greater impact

on Idahos CAFOs. Historically, winter snows have guaranteed that lagoons will be okayuntil the start of the growing season. Increasingly, however, because of decreased snow

pack, that is no longer the case.

H. Require more robust certification & training for Nutrient Management Planners.

EPA should not accept NMPs calculated using Idaho One Plan modeling. 2007 letter

showing use of extremely outdated standards. (See about talking with NRCS aboutwhether this has changed, and the difference between the ASAE standard Sheffield

mentions and the 590 standard)

J. Keep the Proposed Permits public notice and open records provisions

Keep the Proposed Permits up-to-date NRCS standards. Do not give in to industry

pressure to give a green light to continued pollution.

K. Add a provision that allows for automatic incorporation of significant updates of

NRCS and ASAE standards that occur within the 5-year coverage period and/or

during any administrative extension.


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Appendix A

DEQ Upper Snake Rock Surface Water Monitoring Data

idaho draft npdes comments2

Documents