Presidental Executive Order Response

President Obama’s effort to have the central government assume more control over the lives of persons living in the Chesapeake Bay watershed began with a May 2009 executive order “to protect and restore the Chesapeake Bay and its watershed.” The executive order established a Federal Leadership Committee chaired by the U.S. Environmental Protection Agency. It called for several federal agencies to submit draft reports by September 9, 2009 to address key challenges in the bay and to recommend actions for addressing them. In early September, those seven reports were released in draft form. The Federal Leadership Committee will consider these recommendations and develop a single, integrated strategy defining actions necessary to improve the Chesapeake Bay. Once this completed document is released on November 9, public comments will be accepted.

Two of the seven draft reports have sections affecting Delmarva’s chicken industry and agriculture in general. While the documents repeatedly say that farming is necessary to the bay’s improvements, the drafts indicate that more government authority, both state and federal, is being sought over chicken farms. In fact, this sentence appears in one document. “EPA believes that a new rulemaking to address pollution from animal feeding operations (AFOs) is an important component of a larger program for restoring the Bay.” It is quite clear that chicken farms and other animal farms are a target of EPA’s increased efforts.

Whatever is done as a result of this executive order will be done in the six states of the Chesapeake Bay watershed and the District of Columbia. Because additional regulation and additional costs likely will result, this Obama government plan will put Delmarva’s chicken industry at a further disadvantage to other American and foreign chicken producing areas.

Shown below is a DPI summary of the more than 100 pages in the draft plans. Once the comment period on the final draft opens on November 9, we will encourage our members to offer comments to EPA and their federal elected officials. After all, EPA is using authority granted to it by the Congress and President under the Clean Water Act to gain more control over the lives of our members.

While the federal Clean Water Act assigns primary water quality actions to the states, this executive order seeks to create more central government authority. Because 25 years of efforts have not resulted in desired improvements to the bay, additional actions are being taken to meet water quality goals by 2025. The U.S. Environmental Protection Agency says the amount of nitrogen going into the bay must be reduced by 44 percent while phosphorus loads need to be reduced by 27 percent, despite an expected human population increase of 30 percent between 2000 and 2030 and an increase of 60% in impervious surfaces in the 64,000 square mile watershed. Much of the load reduction has been assigned to agriculture and the chicken industry.

The president’s executive order directed the EPA to prepare a report on the next generation of tools and actions for improving water quality under existing legislative authorities. There are three principal components:

• Create a new accountability program to guide federal and state efforts to restore the bay.

• New rulemakings/actions under the Clean Water Act, the Clean Air Act, and other authorities.

• An enhanced partnership between the U.S. Department of Agriculture and EPA to implement a “Healthy Bay – Thriving Agriculture” initiative.

Greater Accountability Under the new accountability program, EPA would expect the six watershed states (New York, Pennsylvania, Maryland, Virginia, West Virginia, and Delaware) and the District of Columbia to commit to establish and implement:

• Clean Water Accountability Programs that (1) achieve the pollutant reductions needed from all sources through regulations, permits, or enforceable agreements, and (2) include commitments to dates by which any necessary regulations or other instruments would be established and implemented.

• A series of 2-year milestones detailing near-term actions and loading reduction targets to evaluate progress toward water quality goals.

EPA believes that the watershed jurisdictions need to take strong action to assure the public that nutrient and sediment problems in the bay will be reduced and controlled in the face of continued population growth and development of the watershed. Much of this action will be required of chicken farms and other farmers.

In the event that the jurisdictions do not commit to establish and implement Clean Water Accountability programs or do not achieve their 2-year milestones, EPA would identify a number of potential actions (“consequences”). These may include, but are not limited to:

• Revising the draft or final Waste Load Allocations in the bay Total Maximum Daily Load program to assign more stringent pollutant reduction possibilities to point sources of nutrient and sediment pollution. In other words, if the states do not do what they are expected to do in areas in which the federal government has no control, there could be more regulation of chicken farms, other CAFOs, and other point sources. So a heavier burden of reducing pollution could fall upon chicken growers because other segments of society are not doing their part.

• Objecting to state-issued Clean Water Act National Pollutant Discharge Elimination System permits. This means that new chicken farms could be delayed or stopped because the EPA has intervened.

• Acting to limit or prohibit new or expanded discharges of nutrients and sediments.

• Withholding, conditioning, or reallocating federal grant funds.

• Taking other actions as appropriate.

New Regulations In the section on new rulemakings/actions under existing federal laws, the Obama government is suggesting that several new regulations would be created unless the states strengthen their pollution control programs to achieve similar or greater reductions than EPA would achieve through the new regulations. They include:

• Requiring more chicken farms and other animal farms to be covered under the federal CAFO rule and setting new minimum performance standards for permits, including regulation of the land application of manure.

• Ensuring that any new or expanding sources of nutrients and/or sediments are offset by reductions from other sources at levels that account for scientific uncertainty and are in addition to existing commitments necessary to achieve bay water quality goals. This means that expansions of sewage treatment plants, industrial point sources of pollution, and new developments that require stormwater management plans could only take place if there are pollution reductions elsewhere. EPA claims farmers might be helped by this financially since they can “sell” credits they earn by doing more to reduce pollution. However, there is concern that if there are not enough credits made available, then pressure will be put upon EPA to allow the expanded pollution operations to go ahead and expand anyway with more regulation being imposed upon chicken farms and other CAFOs since agriculture does not have the votes and political clout as do municipalities and developers.

• EPA would develop a model state program for reducing discharges from onsite (septic) systems and set clear expectations that the jurisdictions commit to achieve bay Total Maximum Daily Load onsite system load allocations through enforceable or similarly effective programs.

Healthy Bay – Thriving Agriculture The draft reports claim that agriculture needs to continue in the bay watershed, yet EPA manipulates its data to point the finger at agriculture as the “number one source of nutrient and sediment pollution to the Bay.” While one of the seven reports says “losing farms and forests is not in the best interest of the Chesapeake Bay ecosystem. Maintaining a healthy, sustainable agriculture is an essential component to protecting and restoring the Chesapeake Bay,” one can wonder about the sincerity of that comment.

In the draft document, farmers are put on the defensive when the pie charts showing nutrient responsibility are manipulated to show agriculture as the leading polluter. For instance, for nitrogen, these data are shown in one chart:

Agriculture – Chemical Fertilizer -15%

Agriculture – Manure - 17%

Municipal and Industrial Wastewater – 20%

Urban/Suburban Runoff – 10%

Septic – 4%

Atmospheric Deposition to Watershed – Mobile, Utilities, Industries – 20%

Atmospheric Deposition to Watershed – Agricultural Sources – 6%

One could argue that non-agricultural contributions of 50% (20% municipal and industrial wastewater + 10% urban/suburban runoff + atmospheric deposition of 20%) exceeds agriculture’s total of 38% (15% for chemical fertilizer + 17% for manure + and atmospheric deposition of 6%). However, agriculture, being a small percentage of the persons living and voting in the watershed, is often referred to as the number one source of nutrient pollution in the bay.

In the Health Bay – Thriving Agriculture section, there are several areas that the authors claim could result in significant improvements for the bay and farming communities.

• Development and implementation of an intensive and strategic effort to expand the use of key conservation practices in high priority watersheds.

• Coordination with other federal and state partners on next generation nutrient management planning tools.

• Using USDA and EPA funds to support development of critically needed tools and technologies that can create new market and revenue streams that support the adoption of conservation measures.

Expected State Actions Because the bay Total Maximum Daily Load program will allocate pollutant reductions requirements to both point and nonpoint sources, EPA expects the six watershed states and the District of Columbia to provide EPA with “reasonable assurance” that nonpoint source loading reductions will be achieved. EPA’s expectations include:

• Identification of the reductions in the proposed Total Maximum Daily Load scheme

• Identification of the current state and local capacity to achieve the needed reductions

• Identification of the gaps in current programs to achieve the needed controls

• A commitment from each state and the District of Columbia to work to fill the identified gaps

• A commitment to continue efforts to expand monitoring, tracking, and reporting

• An agreement that if jurisdictions do not meet these commitments, additional measures will be necessary

Ultimately, according to EPA, because EPA or state-issued permits under the Clean Water Act must include effluent limitations necessary to achieve the water quality standards if nonpoint sources do not accomplish the loading reductions, then more stringent effluent limits in government permits for point sources may be necessary. In other words, more requirements on chicken farms may be called for if the states don’t do their job.

Chicken House Construction Permits Under the federal Clean Water Act, EPA has the authority to address stormwater discharges of pollutants. In Phase 1, EPA established permit requirements for industrial activity, including construction activity disturbing five acres or more, and discharges from municipal stormwater systems. In Phase 2, there are regulations requiring government permits for stormwater discharges associated with construction activity disturbing one to five acres. If new chicken houses on Delmarva already are not required to have such stormwater permits, that may be coming.

Expected Changes for Animal Agriculture EPA strongly hints in the draft reports that more regulation will be coming to animal farms, including:

• Designating more AFOs as CAFOs to better impose permit requirements on operations that are contributing to water quality impairments

• Revising existing CAFO regulations so more animal operations, generally smaller farms, qualify as CAFOs

• Establishing a requirement that certain CAFOs must apply for a permit based on a record that supports presumption that they discharge. This could be a huge change because rather than needing a permit if a farm discharges or proposes to discharge, a farm might need an industrial strength permit if somebody thinks it discharges.

• Issuing stronger CAFO permits that contain terms and conditions that further reduce the discharge of nutrients to the bay

• Requiring permitted CAFOs to implement “next generation” nutrient management plans.

• Off-site transfer of manure reporting and record-keeping. This may or may not be an issue in Virginia as the Commonwealth is considering state regulations on such reporting.

EPA says such a rulemaking containing these elements could impose “moderate” costs on operations seeking permit coverage for the first time while there could be increased costs for all CAFOs to implement the additional nutrient management requirements.

Increased EPA Enforcement Given available environmental enforcement power, EPA believes it can only achieve modest nutrient and sediment pollution reductions to the bay acting alone. It is proposing more enforcement efforts.

According to EPA, at least 49% of total nitrogen, 35% of total phosphorus, and 4 percent of total sediment is subject to central government regulation. Since the models estimate that nitrogen pollution to the bay must be reduced by 44% and phosphorus pollution must be reduced by 27%, achieving these levels will require significant and sustained reductions by all sources, including agriculture. “Yet, even full compliance with existing regulations will not result in the necessary pollution reductions to restore the health of the Bay.”

EPA will increase its visibility by targeting enforcement actions and remedies at animal farms in geographic hot spots impaired for nutrients and sediments. Since these draft reports identify the Delmarva Peninsula, Lancaster County Pennsylvania, and the Shenandoah Valley of Virginia and West Virginia as CAFO areas needing more attention, we probably can expect more EPA inspections and enforcement on our chicken farms. While EPA can only address a small portion of nutrients from animal agriculture pursuant to existing legal authority, it can focus on those farms over which it has authority and it likely will.

To achieve its enforcement goal, EPA will 1) work with states to target implementation of the CAFO program to minimize CAFO nutrient impacts on the bay, specifically to investigate or inspect facilities that post the most risk to the bay and take enforcement actions to compel compliance; 2) work with the states to expand the number of permitted farms; and 3) seek to address CAFO air emissions and develop appropriate remedies to reduce these emissions and their impact on water quality.

So, what happens next? In the U.S. Department of Agriculture draft report, it is written that “Among the consequences of losing these agricultural and forested areas are declines in access to local fresh foods; reduction in the capture of carbon in soils and plants; and increased runoff from roads, roofs, and parking lots. Consider that a one-acre parking lot produces about 16 times the volume of runoff that comes from a one-acre meadow.” The document claims that agriculture and forestry are preferred land uses in the watershed. Nevertheless, EPA is proposing quite a few very significant changes on how food is produced in the Chesapeake Bay watershed; changes not being proposed in other parts of America.

DPI will send its members a summary of the final November 9 Federal Leadership Committee report and encourage members to submit comments to EPA and their federal elected officials.

The seven draft reports and summaries of each can be found at executiveorder.chesapeakebay.net


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