CAFO Permit Background and Analysis

The Washington State Department of Ecology is updating the latest Confined Animal Feeding Operation (CAFO) permit. There are some farms that either need the permit (if they have had discharges to surface waters) or want the permit (for possible protection against third-party lawsuits).

But the permit requirements need to be changed significantly, even for those who want it.

Ecology insists most or all lagoons potentially leak some small amount of “waste” into groundwater. Therefore, Ecology wants to require most farms with more than 200 mature dairy animals to apply for this CAFO permit if those livestock farms have a lagoon lined with clay, or soil or single poly liners (even if built to NRCS standards).

There are two public hearings and a webinar scheduled, and we will be working to set up additional kitchen meetings in early August to hopefully get Ecology staff out to talk with more farms and hear your concerns.

We have tried through innumerable meetings to help Ecology understand the impacts of their presumptions and the consequences of the terms and conditions in this permit. They have listened to some concerns but the current draft permit seriously undermines the ability of many farms to remain in the business. Our concerns are based on:

  1. What is written in the draft.
  2. An initial technical and economic impact review by Federation staff and board, farmers, consultants and various experts (as compared to the incomplete, inaccurate economic analysis supplied by Ecology).
  3. Ecology’s belief that it can require virtually all dairy farms in the state to apply and comply.

We are gravely concerned about the massive compliance costs of this permit and the staggering fiscal impact it will have on most farms across the state.

Several producers have asked for a summary of how this permit can impact your farm and a listing of our suggested alternatives that must be considered by Ecology to eliminate or minimize unacceptable or illogical impacts.

If you own or control more than 200 mature head and own at least one soil-lined lagoon, the permit would require you to apply for permit coverage. Additional concerns include the following:

  1. Permit conditions prohibit applications of “…manure, litter, or process wastewater, and other sources of nutrients…” to buffer zone and setbacks. The current draft says that either a 100 foot no-application zone or a 35-foot vegetative buffer (no touch) with no alternatives outlined in permit (see page 27, S4.N). The lost production capacity of those lands was not accounted for AT ALL in the Economic Impact Analysis (EIA) (see page 8 of EIA). We estimate lost production of at least $1200/acre for corn in Western Washington, for example, and at least $1850/acre for corn/triticale rotation ground in Eastern Washington. The Economic Impact Analysis mistakenly assumes fertilizer application is allowed in buffers (see page 8, Section 2.7 of EIA) while the permit language (page 27) prohibits application of fertilizer (as does organic rules on organic production based farms). For example, the estimated costs to a 300-acre west side farm with 10% loss (corn) due to buffers from any waters of the state* equals $36,000/year. The estimated costs to a 1000 acre eastern Washington farm with 10% land buffer losses (corn/triticale rotation) equals $185,000/year.
  2. Additional cost of much more frequent soil testing and depth of testing is again misrepresented, and actual test cost cited is wrong in the EIA. Furthermore, several experts question if there is any useful value in testing every field, every year in the spring. Estimated additional testing depends on number of fields but add $80-$250/field/year.
  3. Development of a new Manure Pollution Prevention Plan (MPPP), monitoring, recording, recordkeeping, and reporting costs were also dismissed in the EIA. Every farm will be different but there are many new requirements for recording and reporting that are not required in WSDA Dairy Nutrient Management Act inspections (see pages 29-37 of CAFO Draft). The administrative costs to monitor, record, maintain and report those records and reports were discounted in the EIA (see page 10 section 2.10) so no assessment of economic cost analysis was done on the added cost of changes. Our estimated added administrative cost – $5,000-$40,000 per year/farm.
  4. Lagoon assessment costs were estimated in the EIA but Ecology incorrectly assumed all farms have one lagoon. We believe it also may have under reported the per lagoon costs. Minimum best guess lagoon report estimate is $7400/lagoon and we don’t even know if it is possible to have an engineer do the report as dictated in draft permit.
  5. Additional storage requirements – Many producers have told us the changes in “allowable” spreading dates and conditions, as well as requirement to divert silage and potentially roof run-off water to lagoons, will result in many farms needing additional storage. Additional storage was not assessed in EIA due to erroneous and inaccurate assumptions in EIA (page 10 Section 2.9). (Concrete storage tanks have been running $500k/2-3 million gallons.)

The permit, a new agency and a new set of rules (and after massive investments by dairy farms in farm plans over the past 20 years by farmers and conservation districts) creates immense uncertainty.

(*For example there is no certainty in knowing where buffers start. Ecology’s definition for “waters of the state” is different from the USDA NRCS definition for “waters of the US” (WOTUS). We have been given no assurances that these differences between federal and state law will be resolved, despite repeated requests for clarity to Ecology over the past 15 years. So, the same piece of land, for example a “farmed wetland” designated as “prior converted” and therefore not WOTUS by NRCS, can be interpreted by Ecology under state law as “waters of the state” and therefore would need a buffer and no application of nutrients.)

Why were we told that NRCS lagoons were acceptable (and Ecology was consulted and concurred with NRCS lagoon standards in the 1990’s and early 2000’s), and now those very lagoons are unacceptable and grounds for a discharge permit?

Where is there a problem that can be identified and the solution measured? A recent study in California estimates lagoons may potentially be the source of one tenth of one percent of groundwater nitrate in central California. See page 3 of executive summary of http://groundwaternitrate.ucdavis.edu/files/138956.pdf

Why is Ecology focusing on the one tenth of one percent of nitrate sources?

Ironically, dairy farmers are one of the few groups that are focusing and being regulated already on nitrates. Last week, the Washington State Department of Agriculture reported excellent progress by dairy farms in improved compliance with the Dairy Nutrient Management Act and already very low levels of field specific levels of nitrates on dairy farms were drastically reduced. (See pages 8 and 9 of http://app.leg.wa.gov/ReportsToTheLegislature/Home/GetPDF?fileName=533-DNMPReportToLegJune2016_e9a85fda-7303-4899-a2fb-c30aea1728df.pdf.)

This report alone begs the question as to what problem we are trying to solve by requiring hundreds of dairy farms to get permits, at the costs of tens or hundreds of thousands of dollars per farm or pushing farms out of business for no good reason.

Avoid Fines for Failing to Report Cattle Ownership Change

Washington State Dairy Federation recommends immediate action to avoid fines.

WSDA is moving toward enforcement and penalties for failure to report the change of ownership of cattle.

Fines could total hundreds or thousands of dollars.

When cattle ownership changes, use a reporting option listed below.

Recent changes to state law have impacted the reporting process for the sale, gift, or bartering of cattle from dairy farms. However, lack of use may imperil dairy-requested alternative systems.

Current law requires brand inspections when cattle ownership changes. Two alternative programs are available exclusively to licensed dairies.

  • Brand Inspection – This traditional method can be used for any change in livestock ownership. Because of the costs and time necessary for the inspection, this option may not work for all dairy farms.
  • Electronic Cattle Transaction Reporting – The first alternative to a livestock inspection is the ECTR program. This system allows dairy producers the option of reporting private cattle transactions via the internet. This program is available for all ownership transfers of individually identified dairy cattle except steers.
  • Green Tags – A second alternative to a livestock inspection is the green tag program, which is for unbranded bull calves or freemartins less than 30 days old that are not being shipped out of state or sold at a public market. Producers simply need to purchase green tags from WSDA, apply the tags to the calves, and put the 9-digit green tag number on the Bill of Sale.

Consequences

  • Penalties – If you don’t use one of these three options, you will face penalties imposed by the Washington State Department of Agriculture. The fines and court fees range from $205 to $513. WSDA has the discretion to assess the fees on a per head or per transaction basis. Not using brand inspections or either of the alternatives will result in large fines.
  • Need for Accurate Traceability – If we do not have an adequate animal ID system, diseases cannot be traced and markets will be closed to our products. The one case of BSE in 2003 shut down exports for 10 years. An effective traceability system costs money, but a disease outbreak without traceability will cost producers exponentially more. 10,000,000 sheep and cattle were destroyed as a result of the 2001 foot-and-mouth disease outbreak in the United Kingdom. A strong traceability system protects our dairies from similar threats.
  • Options May Go Away – ECTR and green tags were created as options for dairy producers, who said in surveys that they would use a less costly system as opposed to brand inspections. If ECTR and green tags are not used immediately, those programs may go away, leaving us with only brand inspections and costly penalties.

For more information, see the resources below:

What’s Upstream Ad Campaign — What We Know So Far

What’s Upstream ad campaign: What we know so farWhats Up Stream billboard

by Don Jenkins and Alan Kenaga/Capital Press Source: Capital Press research

Dec. 28, 2010 – EPA awards six-year, $18 million grant to the Northwest Indian Fisheries Commission for projects in the Puget Sound region. The Swinomish Indian tribe receives a portion of the money.

April 24, 2012 – Swinomish tribe environmental policy director Larry Wasserman reports to the EPA Puget Sound intergovernmental coordinator that a consultant (Seattle PR firm Strategies 360) had been hired.

July 8-11, 2012 – Strategies 360 survey finds voters satisfied with water quality; environmental issues are the least of their concerns. However, a Strategies 360 memo to Wasserman describes voter opinions as “malleable.”

Oct. 25, 2012 – EPA assigns new “sub-tasks” to tribe which include another statewide survey, newspaper ads, social media, so-called earned media and “creative” advertisements.

April 30, 2013 – Wasserman foreshadows focus of What’s Upstream. “Regionally targeted messaging to raise awareness of non-point source pollution problems and potential solutions will be delayed until December …”

Oct. 24, 2013 – What’s Upstream, an online ad program to drive web traffic, is launched.

March 20-23, 2014 – Another Strategies 360 survey finds farmers and ranchers are popular, but most voters also say they support mandatory 100-foot buffers between farm fields and waterways.

July 15, 2014 – Inspector General for the EPA releases an audit of Puget Sound grants which states EPA “… should improve oversight of subaward monitoring policies and activities.” The EPA’s Northwest office disputes the critical audit.

Oct. 24, 2014 – Strategies 360 submits a “What’s Upstream marketing report,” outlining ways the website is being promoted, “… to insert the campaign’s messaging and themes into coverage of water-quality and other environmental issues.”

April 16, 2015 – On a visit to Washington state, EPA Administrator Gina McCarthy meets with Swinomish tribal leaders. She then tours the Skagit River with a group that includes the tribe’s chairman, Brian Cladoosby, and Wasserman. The meeting and tour are closed to the press.

April 30, 2015 – After consulting with Strategies 360, Wasserman files a report with the fisheries commission which states, “An increased expenditure of funds will begin in mid-May with a focus on north Puget Sound.”

Sept. 30, 2015 – In another report to fisheries commission, Wasserman states, “Project has been delayed as a result of extensive reviews and engagement by EPA.”

Oct. 30, 2015 – Wasserman reports to fisheries commission: “As a result of extensive review and engagement by EPA, we have been revising the website, and have to (restart) media outreach.”

Dec. 14, 2015 – Government Accountability Office finds EPA misspent federal funds on a “stealth” campaign to promote new Waters of the United States rule via social media platform Thunderclap and select websites. EPA has yet to report to Congress on the matter.

Courtesy of EPA

March 2016 – What’s Upstream ads appear on public buses in Whatcom County in northwestern Washington. Transit officials quickly remove the advertisements.

March 25, 2016 – EPA says it’s neutral on the content of the What’s Upstream website, which includes a “Take Action” link that allows people to send a form letter to state lawmakers urging mandatory 100-foot farm buffers.

March 31, 2016 – Responding to a Capital Press inquiry, EPA acknowledges that What’s Upstream billboards in Olympia and Bellingham should have disclosed EPA’s involvement in campaign.

April 4, 2016 – Senate Agriculture Committee Chairman Pat Roberts, R-Kan., calls billboards “disturbing” and “malicious.” He and Senate Environment Committee Chairman Jim Inhofe, R-Okla., write the inspector general for the EPA, Arthur Elkins, asking for an investigation.

April 5, 2016 – EPA reverses course and says its grants should not have been used for What’s Upstream.

April 12, 2016 – House Agriculture Committee Chairman Mike Conaway, R-Texas, writes EPA Administrator McCarthy requesting records related to its involvement with What’s Upstream.

April 18, 2016 – EPA inspector general Elkins states in a letter to Roberts and Inhofe that his office will investigate three grants awarded to the fisheries commission totaling $20.5 million.

April 19, 2016 – McCarthy tells the Senate Environment Committee that her agency has stopped funding What’s Upstream. Sen. Deb Fischer, R-Neb., asks McCarthy when her agency became aware of the campaign. Answers McCarthy: “I can’t give you an exact date, but I can assure you that EPA also was distressed about the use of the money and the tone of that campaign.”

Don Jenkins and Alan Kenaga/Capital Press Source: Capital Press research