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comment letter to DEP re Ag Water Quality Initiative for Bay 6.8.2010 on letterhead

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8 pages
Citizens for Pennsylvaniaʹs Future 610 North Third Street Harrisburg, PA 17101‐1113 P 717.214.7920    800.321.7775 F 717.214.7927 info@pennfuture.org www.pennfuture.org  June 8, 2010 Frank X Schneider Water Program Specialist Department of Environmental Protection Rachel Carson State Office Building 400 Market Street Harrisburg, PA 17101 RE: Pennsylvania’s Proposed Chesapeake Bay Agricultural Water Quality Initiative PennFuture is a public interest membership organization dedicated to creating a just future in which the environment, communities and the economy thrive. One focus of PennFuture’s work is to improve and protect water resources and water quality throughout the Commonwealth through public outreach and education, advocacy and litigation. PennFuture has been actively engaged in Pennsylvania’s processes related to the Chesapeake Bay Total Maximum Daily Load (TMDL). Currently, Pennsylvania is preparing its Watershed Implementation Plan (WIP). PennFuture participates on both the Agricultural Workgroup and the Urban/Stormwater Workgroup for the Pennsylvania WIP. As a member of the WIP Agricultural Workgroup, PennFuture was given an opportunity to comment on Pennsylvania’s Proposed Chesapeake Bay Agricultural Water Quality Initiative (Initiative), which contains the framework for Pennsylvania’s agricultural strategy for the WIP. Below are PennFuture’s comments on the Initiative. Objectives PennFuture agrees with the ...
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CitizensforPennsylvaniaʹsFuture610NorthThirdStreetHarrisburg,PA171011113P717.214.7920800.321.7775F717.214.7927info@pennfuture.orgwww.pennfuture.org
June 8, 2010 Frank X Schneider Water Program Specialist Department of Environmental Protection Rachel Carson State Office Building 400 Market Street Harrisburg, PA 17101 RE: Pennsylvania’s Proposed Chesapeake Bay  Agricultural Water Quality Initiative PennFuture is a public interest membership organization dedicated to creating a just future in which the environment, communities and the economy thrive. One focus of PennFuture’s work is to improve and protect water resources and water quality throughout the Commonwealth through public outreach and education, advocacy and litigation. PennFuture has been actively engaged in Pennsylvania’s processes related to the Chesapeake Bay Total Maximum Daily Load (TMDL). Currently, Pennsylvania is preparing its Watershed Implementation Plan (WIP). PennFuture participates on both the Agricultural Workgroup and the Urban/Stormwater Workgroup for the Pennsylvania WIP. As a member of the WIP Agricultural Workgroup, PennFuture was given an opportunity to comment on Pennsylvania’s Proposed Chesapeake Bay Agricultural Water Quality Initiative (Initiative), which contains the framework for Pennsylvania’s agricultural strategy for the WIP. Below are PennFuture’s comments on the Initiative. Objectives PennFuture agrees with the federal Environmental Protection Agency (EPA) that the Pennsylvania Department of Environmental Protection (DEP) should consider adding the protection of groundwater to the objectives of the Initiative. Livestock can effect groundwater where: an animal concentration area is located on coursetextured permeable soils, where the water table is at or near the surface, where bedrock is within a few feet of the surface, and where there is runoff to permeable soils or bedrock. Groundwater in Pennsylvania has been severely impacted by agriculture, leading to high nitrates in water that is often used as a drinking water resource. High nitrates in drinking water can have an adverse effect on young children and young livestock. While these reactions are rare, they are catastrophic. Nitrates in groundwater can also make their way to surface waters, and ultimately to humans and livestock through springs that feed surface waters. Pennsylvania geology is such that groundwater fed surface waters are not uncommon. While working toward the restoration and protection of flora and fauna in the Chesapeake Bay, Pennsylvania should not miss the opportunity to better protect its citizens from the effects of groundwater contamination.
Key Components PennFuture generally agrees with the key components of the Initiative. To date, DEP and its environmental compliance partners, such as conservation districts, have given smaller farming operations the impression that they are “unregulated.” This is categorically untrue and PennFuture commends DEP for finally recognizing the cumulative, adverse impacts that many smaller farming operations concentrated in one area can have on the natural environment. For years, all farming operations have been required to manage erosion and sedimentation from agricultural plowing and tilling. Additionally, all farming operations are required to manage nutrients based on the needs of crops in accordance with the Manure Management Manual or Act 38. However, the Watson Run EPA investigation revealed widespread noncompliance with these state requirements regarding farm conservation and manure management. EPA has indicated that many farmers were unaware of these requirements and had never been asked about the two regulatory requirements. DEP in partnership with conservation districts will have a long and difficult road ahead to bring thousands of smaller farming operations into compliance with the Manure Management Manual and the Chapter 102 regulations related to erosion and sedimentation. The compliance strategy offered by DEP, a targeted watershed approach, will likely be much more efficient than a shotgun enforcement effort. The targeted watershed approach will lead to more timely compliance by the regulated community. The regulated community will see that they, individually, are not being singled out for compliance. Farmers will be more likely to make improvements if their neighbors are being asked the same questions about compliance and being asked to meet the same regulatory standards. By focusing on targeted watersheds, water quality improvements may also be realized more quickly within those geographic pockets. However, PennFuture believes that much more detail needs to be added to the Initiative regarding the actual implementation of the targeted watershed approach, such as how many watersheds are going to worked upon and the timeframe for completion of those assessments and enforcement actions. If the initial wave of watersheds that will be targeted for assessment and enforcement have already been identified, the list should be included in the Initiative. The Initiative also stresses a continued focus on the four Core Conservation Practices: nutrient management plans (NMPs), cover crops, streamside buffers, and notill or low till practices. The focus of NMPs and the other core conservation practices is more efficient utilization of nutrients that are land applied. The most obvious way to efficiently utilize nutrients is to land apply them close in time to when the crop will need the nutrients. However, Pennsylvania’s Nutrient Management Program and Manure Management Manual do not require this. Both programs allow for the land application of nutrients during times of the year when manure nutrients are likely to be lost, i.e. the winter months. When the ground is snowcovered, nutrients that are land applied are likely to wash off the surface during rain events or when the snow melts. Additionally, when the ground is frozen plants are dormant and not pulling any nutrients from the earth. Thus, land application during these months is 1 not necessary for plant growth. Penn State’s Doug Beegle agrees. Winter manure applications are allowed as a convenience to farmers. It is time for DEP to recognize that it is no longer “convenient” to be flushing nutrients into our streams and rivers. EPA has also suggested that the key components 2 of Pennsylvania’s approach in the Initiative should include a ban on winter manure applications. For
1 Penn State University Field Crop News, Vol. 09:01. Winter Manure Application Considerations (2009). Dr. Beegle states, “The best nutrient utilization will come from applying the manure as close to the time of crop uptake as possible, that is not in the winter. Also, because of no crop utilization and frozen/snow covered soils there is high potential for nutrient loss in the winter. So if we could avoid applying manure to frozen, snow covered soils that would be the best approach. . . .”2 Letter from David B. McGuigan, Ph.D., Associate Director of the Office of NPDES Permits and Enforcement at EPA Region 3, to Glen Rider, Bureau of Watershed Management at DEP (date stamped January 29, 2010). 2
the above stated reasons, Pennsylvania’s Initiative for the Chesapeake Bay should include a ban on winter manure spreading. While PennFuture agrees that the Initiative needs to focus on better utilization of nutrients that are land applied by farming operations or land deposited by farm animals, the four Core Conservation Practices only deal with a small fraction of the nutrients that a farming operation actually generates. NMPs and associated BMPs only deal with approximately 20% of the nutrients in manure. What happens to this other 80% of the nutrients in manure is the pink elephant in the room about which no one is talking. Quite obviously, the remaining 80% of nutrients in manure are lost to the environment in some manner. While only a portion of these lost nutrients are making their way to water resources, either groundwater or surface water, the cumulative loss of nutrients across many farming operations is mind boggling. DEP should not lose sight of the potential nutrients that could be saved through the use of technologies that capture and contain nutrients or allow for increased utilization of nutrients by plants. DEP, along with its agricultural partners, should better encourage the more widespread use of technologies that prevent these “pink elephant” nutrient losses. Pennsylvania must become a leader in nutrient capturing technologies and practices if the Commonwealth wants to deal with the totality of our nutrient problems in Pennsylvania’s waters and the Bay at large. PennFuture supports the Initiative’s proposal for incentives for technology developments, but does not believe that regional digesters are the panacea that DEP believes them to be. Continue Existing Regulatory ProgramPennFuture agrees that a strong inspection program of concentrated animal feeding operations (CAFOs), concentrated animal operations (CAOs), and smaller farming operations should be integral to the Initiative’s strategy and ultimate success. While the Initiative indicates that DEP will inspect CAFOs annually, DEP has backed away from this commitment when it has been pushed by PennFuture about inspection frequency. DEP insists that it is only required by its delegation authority under the National Pollutant Discharge Elimination System (NPDES) program to inspect CAFOs once every five years. While Pennsylvania’s regulation of CAFOs comes partially from its authority delegated by EPA under the NPDES program, DEP also has authority over CAFOs under the Pennsylvania Clean Streams Law and regulations promulgated under the Law. Thus, the federal NPDES program sets a floor on the regularity of inspections at CAFOs. There is nothing in the program thatprohibitsthe state from inspecting CAFOs on a more regular basis, and in fact DEP appears to be committed to a more regular inspection schedule. However, PennFuture believes that if DEP will be using annual CAFO inspections as a means of meeting Bay, and ultimately TMDL, requirements, the CAFO regulations should be amended to include anannual inspection requirement. In its letter to DEP regarding a draft of the Initiative, EPA states that DEP should “add a discussion on activities that DEP will engage in to ensure that animal feeding operations that are required to have a 3 permit are under an NPDES permit.” EPA’s concern about facilitiesoperating without a properly issued permit is not misplaced. By PennFuture’s count, there are approximately 67 facilities that have either applied for a new NPDES CAFO permit or renewal of an existing permit that have not been acted upon or issued by DEP. Many of these permit applications and renewals have been pending for four years, almost the life cycle of a NPDES permit. This is completely unacceptable. Clearly the regulated community has been utilizing a permit application or renewal application as a placeholder for compliance. DEP is not without mud on its face for having failed to deny permits of those unwilling to
3 Letter from David B. McGuigan, Ph.D., Associate Director of the Office of NPDES Permits and Enforcement at EPA Region 3, to Glen Rider, Bureau of Watershed Management at DEP (date stamped January 29, 2010). 3
4 meet minimum preconditions for issuance of permits in a timely manner. Few of these facilities with pending permit applications have been inspected by DEP. Additionally, it has not been the practice of DEP to place NPDES CAFO permit applicants on a schedule for meeting permit preconditions. PennFuture believes that the Initiative should include a strategy to get the vast number of pending permit applicants and renewals inspected by DEP staff and placed under a stringent timeframe for meeting permit preconditions. It should be the policy of DEP to deny permit applications for those unwilling to meet permit preconditions in a timely manner. Obviously, DEP must also be fully staffed to properly review and evaluate all permit applications and renewals in a timely manner. The Initiative also states that DEP will continue to respond to complaints, with an emphasis on complaints that identify actual pollution. PennFuture believes that complaint response is a critical component of DEP’s duties. However, over the past two years PennFuture has been less than impressed with DEP’s response to complaints about agricultural operations. PennFuture has been told by DEP staff that they will not respond to a complaint unless proof of the complaint is akin to that required for PennFuture to send a 60day notice letter to the farm operator. Unfortunately, this is not the inspection standard established in the Clean Streams Law. The Clean Streams Law states that DEP shall immediately inspect a facility “[w]henever any person presents information to [DEP] which gives [DEP]reason to believethat any person is in violation of any requirement of this act or any condition of any permit issued hereunder or of the acts enumerated in subsection 315(h) or any condition or any 5 permit issued thereunder.” (emphasis added) In addition to having an obligation to inspect facilities upon receipt of information that gives DEP reason to believe there is a violation, DEP also has an affirmative duty to regulate an activity where 6 there is a “danger of pollution of the waters of the Commonwealth.” DEP, under the Clean Streams Law, has a duty to protect waters of the Commonwealth even when there is only apotentialfor pollution. I think everyone would agree that it would be beneficial to the environment to nip a problem in the bud before it has a chance to cause water quality issues. The Clean Streams Law requires DEP to deal with all situations in which there is a potential for pollution, not just investigation and enforcement of catastrophictype events. PennFuture believes that DEP should take citizen complaints very seriously. Citizens who call in complaints do not generally have sufficient access to farm property in order to make a determination about the severity of a perceived problem. DEP should not be encouraging a martial lawtype mentality. If DEP sets the bar too high for a complaint to trigger inspection, it is likely that citizens will begin to take illegal actions (such as trespass) in order to gain the type of proof needed to verify a suspected complaint. Obviously, these types of actions would only increase the tensions between farmers and their neighbors. It should also be pointed out that DEP may have to rely more and more on citizen complaints given its limited resources. In sum, PennFuture believes that inspections are a critical component of DEP’s duties. Inspections help DEP verify that permitted facilities are meeting the requirements of their permit. Additionally, inspections that result from complaints give DEP the opportunity to meet with smaller farming operations and determine compliance with the Manure Management Manual and Chapter 102 requirements, which are the focus of the Initiative. For all of these reasons, DEP should be allotted sufficient budgetary resources to properly inspect all farming operations and follow up on all complaints. 4 PennFuture does recognize and support DEP’s policy of issuing NPDES CAFO permits for limited timeframes for facilities that have been slow in getting permit application or renewal preconditions satisfied. 5 Clean Streams Law, 35 Pa. Cons. Stat. Ann § 691.601(d). 6 Clean Streams Law, 35 Pa. Cons. Stat. Ann § 691.402. 4
Evaluate and Modify Regulatory and Administrative ToolsPennFuture agrees that the Manure Management Manual and Chapter 102 regulations need updating and more universal implementation. PennFuture understands that the Manure Management Manual will be updated to require something similar to Nutrient Balance Sheets (NBS) under the Nutrient Management Program. PennFuture agrees with this approach, but believes that a ban on winter manure spreading should be included in a revision to the Manure Management Manual, Nutrient Management Program regulations and CAFO regulations. This point was previously discussed. PennFuture also agrees that changes to Chapter 102 regulations should include a requirement to address animal concentration areas or animal heavy use areas and near stream activities. A lot of time and effort will be flushed down the drain if farmers are not encouraged to implement their new planning tools andkeep accurate records of their compliance with Manure Management Plans and Agricultural Erosion and Sedimentation Plans (Ag E&S Plans). PennFuture believes that updates to Pennsylvania’s regulatory programs should include a focus on farmer recordkeeping, particularly during farmer outreach opportunities. Merely having plans does not mean that a farmer is in compliance with them. Actual water quality improvements will only be realized if plans are fully implemented by the farming community. DEP also has a number of compliance tools at its disposal to evaluate whether farming operations are implementing their plans and complying with their permits. It is PennFuture’s impression that these compliance tools are being underutilized by DEP and conservation districts. Annual CAFO reports submitted to DEP by permittees should be crossreferenced with NMPs, quarterly selfinspection reports, manure transfer sheets and any other pertinent documents. Quarterly selfinspection reports should be compared to NMPs to determine compliance with application timing and rates. Quarterly selfinspection reports can also help DEP confirm the quantity of manure being exported and to whom that manure is being exported if those documents are crossreferenced with NMPs, manure transfer sheets and manure agreements. Manure transfer sheets should be compared with NMPs or NBSs of importing or exporting farming operations. These reports cannot replace onfoot inspections, but they can serve as an additional opportunity for DEP staff to evaluate farm compliance. Pennsylvania’s existing CAFO program should also be updated to include any revisions that EPA deems necessary. One element of the federal program that is missing from Pennsylvania’s current CAFO program is the authority to designate a facility as a CAFO. Over the past few years, a few outlier farms have continued to thumb their nose at DEP’s regulatory authority. Additionally, DEP was not very effective at getting those farming operations into compliance on a voluntary basis, as is their strategy under the CAFO program. DEP would have been well served in these situations to have had the authority to designate these rogue operations that refused to comply with conservation district and DEP mandates as CAFOs. Greater regulatory authority over these farms would have been helpful to the program staff and greater accountability of these farms to DEP would have been good for public perception. While PennFuture agrees that DEP should not be in the business of designating facilities as CAFOs, it would be helpful authority to have when dealing with the occasional outlier. As part of its efforts to modify regulatory tools that will lead to water quality improvements, Pennsylvania should move to implementEPA expected “all States andnumeric water quality criteria. Tribes to adopt and implement numerical nutrient criteria into their water quality standards by 7 December 31, 2003” but has identified Pennsylvania as a state that is still collecting data for all
7 Notice of National Strategy for the Development of Regional Nutrient Criteria, 63 Fed. Reg. 34,649 (June 25, 1998). 5
parameters or waters for the entire class of rivers and streams and that is still collecting data for all 8 parameters or waters for the entire class of lakes and impoundments. According to a recent EPA report on the progress of states in adopting numeric nutrient water quality standards, Pennsylvania projected that it would adopt criteria for rivers and streams by September 2007 and criteria for lakes 9 and reservoirs by March 2009 but has not met either of these projected adoption dates. Pennsylvania 10 has no numeric nutrients water quality standards at this time. The implementation of numeric water quality standards could help DEP establish quantitative targets to support its trading program, write more protective NPDES permits, increase effectiveness in evaluating success of nutrient runoff minimization programs, and measure environmental progress. PennFuture agrees with the Initiative’s strategy to utilize conservation district and Natural Resources Conservation Service (NRCS) staffs to enhance the agricultural assessment and compliance initiative. Conservation district staff is very familiar with farming operations in their geographic area and often have established relationships with farm operators. However, as EPA cautions, conservation districts have not traditionally been known to take an active role in compliance assurance. Thus, DEP must make sure district staff is well educated in the programmatic updates and revisions so that a consistent and strong message can be carried to the farming communities. Additionally, conservation districts must implement a consistent timeframe for compliance through the process of evaluating compliance within a watershed. The Initiative should include more detail about how the assessment process with work and the timeframe that farmers will have to submit documentation. The Initiative should also include a clear description about timeframes for working with farmers toward compliance and when farmers will move to an enforcement program. PennFuture believes that the Initiative should include more detailed information about the role that the conservation district and NRCS staffs will play in the agricultural assessment and compliance initiative. Targeted Watershed Approach to Assess and Achieve Agricultural CompliancePennFuture is supportive of the Initiative’s targeted watershed approach. As stated earlier, this approach will likely lead to more timely compliance by the regulated community and water quality improvements may be more quickly realized within these targeted watersheds. One concern that PennFuture has with the targeted watershed approach is that DEP will be heavily relying upon groups that do not have legal or contractual obligations to the Department to meet its obligations under the TMDL. It is critically important that any onfarm assessments be performed by DEP staff as they are the agency charged with enforcing obligations under the Manure Management Manual, Chapter 102 and the TMDL. DEP must be the lead agency, and substantially involved in the onfarm work, in order for the process to have credibility. The Initiative states that DEP is the lead agency for onfarm assessments, but the Initiative should be modified to more fully describe the functions of partner organizations during the targeted watershed assessment process. While completing onfarm assessments, DEP would be remiss to ignore drinking water quality. As previously discussed, groundwater contamination is prevalent in Pennsylvania. If DEP is going to go through the critical process of onfarm assessments, they should evaluate farm wells for pollutants such as nitrates and fecal coliform. Well water is the water source that is most likely to have an impact 8 Memorandum from Benjamin H. Grumbles to Directors, State Water Quality Programs, Directors, Great Water Body Programs, Directors, Authorized Tribal Water Quality Standards Programs, and State and Interstate Water Pollution Control Administrators (May 25, 2007), Attachment 1 (Current Status of States & Territories: Numeric Nutrient Criteria for Class of Waters) 9 SeeUnited States Environmental Protection Agency, State Adoption of Numeric Nutrient Standards (19982008), EPA 821F08007 (Dec. 2008), pp.8, A44. 10 United States Environmental Protection Agency, State Adoption of Numeric Nutrient Standards (19982008), EPA821 F08007 (Dec. 2008), p. B6. 6
on a farm family if it is polluted. PennFuture echoes the sentiments of EPA and encourages DEP to sample drinking water supplies and educate farmers about precautionary steps to prevent drinking water contamination or actions to avoid human and animal health risks if the drinking water source is contaminated. The importance of conservation districts and NRCS staff to the assessment process was previously discussed. PennFuture foresees that the targeted watershed approach will put a disproportionate strain on conservation district and NRCS staffs in the Southcentral part of the Commonwealth. It is anticipated that many of the watersheds that will be the focus of the first phase of the targeted approach lie in the Southcentral part of the Commonwealth. In order to meet the goals and objectives of the Initiative, DEP should assure that conservation districts in these regions are appropriately staffed and allotted sufficient resources to perform the additional functions associated with the targeted watershed assessment approach. Additionally, the agricultural planning resources of conservations districts should not be squandered on facilities that have refused to work toward compliance with state requirements after having an onfarm assessment. The Initiative states that DEP will develop a tiered compliance/enforcement process that willstartWhile the Initiative sometimes suggests thatwith conservation district technical assistance. conservation district resources will only be utilized for voluntary compliance efforts, the role envisioned for conservation district staff is not completely clear. The Initiative is unclear about whether conservation district technical assistance is the starting point of the entire process or one of the steps in the enforcement process. PennFuture suggests that conservation district technical assistance should be reserved for those operations voluntarily working toward compliance with state regulatory programs in a finite time frame. It is inappropriate to reward farming operations with free or reduced fee services when they have refused to work toward compliance voluntarily. The Initiative states that compliance is the goal, but insists that collecting fines and penalties is not going to be the norm. While it may be true that collecting fines and penalties may not be the norm during the initial phases of the targeted watershed assessment process, the collection of fines may be more appropriate as DEP moves along in the process and it becomes clear that the regulated community understands what is expected of them. Ag E&S plans have been required for plowing and tilling operations for 38 years and the Manure Management Manual requirements have been in place for over 10 years. These requirements are hardly new, and they should not be treated as such. It is completely appropriate for DEP to collect fines and penalties from farm operators that refuse to cooperate in a timely manner. Thus, DEP should not limit itself with a statement that fines and penalties are not a goal. Any statement in the negative about collecting fines and penalties could set expectations in the farming community that fines and penalties willneverbe taken during the targeted watershed assessments. EPA, in their comments to DEP on the Initiative, also believes that it is proper to strike the language referencing fines. Based on the above, DEP should remove the language in the Initiative about fines and penalties so that it does not limit their ability to collect fines in selected situations. PennFuture believes that once a watershed has been targeted for an assessment, it is critically important to follow up compliance efforts with a water quality assessment. A water quality assessment of the watershed will provide DEP information about how well BMPs are working and how well the stream is responding to the installation of those BMPs. A water quality assessment will also allow the community to see the positive outcome of all of their hard work and efforts. In short, we should not forget the importance of celebrating successes.
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PennFuture appreciates having been given the opportunity to comment on the Initiative. If you have any questions or would like to discuss any portion of this letter in more detail, please feel free to contact me at (717) 2147920 orsnellzarcone@pennfuture.org.  Respectfully submitted,  Kimberly L. SnellZarcone, Esquire  Agricultural and Water Policy cc: David McGuigan  Bob Koroncai
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