Comment submitted by Ross Wlison, Vice President, Texas Cattle Feeders Association (TCFA)

Mr. Stephen L. Johnson Administrator U.S. Environmental Protection Agency 1200 Pennsylvania Avenue, NW Washington, DC 20460 Attn: Docket ID No. OW-2005-1136 Dear Administrator Johnson: Texas Cattle Feeders Association (TCFA) believes that the proposed extension of deadlines for CAFO NPDES permits and Nutrient Management Plans (NMPs) are inadequate and create a significant hardship on producers. The proposal is contained in Docket ID No. EPA-HQ-OW-2005-0036 as published in the December 21, 2005 Federal Register, pages 75771-75779. We strongly support the comments submitted by the National Cattlemen?s Beef Association (see attached) and urge the agency to extend the compliance deadlines for the reasons outlined in the NCBA comments. Thank you for considering this request. Sincerely, Ross Wilson Vice President January 20, 2006 Mr. Stephen L. Johnson Administrator U.S. Environmental Protection Agency 1200 Pennsylvania Avenue, NW Washington, DC 20460 Attn: Docket ID No. OW-2005-1136 Dear Administrator Johnson: The National Cattlemen?s Beef Association (?NCBA?) submits these comments on behalf of its members in response to the request for comments on proposed revised compliance dates for National Pollutant Discharge Elimination System (?NPDES?) permit regulation and Effluent Limitation Guidelines for Concentrated Animal Feeding Operations published in the Federal Register on December 21, 2005. We believe the proposed deadline extension to March 30, 2007 is unreasonable for CAFO compliance with a rule that has not yet been promulgated. We urge the EPA to consider a more reasonable deadline of no sooner than one year after EPA approval of an individual CAFO?s NPDES permit, including an EPA-approved nutrient management plan (?NMP?). Such an approval is unlikely to occur prior to May 2009 or May 2010, depending on state ability to craft appropriate legislation and regulations addressing the many issues that must be addressed in rulemaking as the result of the Second Circuit Court of Appeals decision in the Water Keeper Alliance et al. v. EPA case. Some of these issues and the practical realities of possible compliance dates are explained below. NCBA is the national trade association representing U.S. cattle producers, with more than 25,000 individual members and sixty-four state affiliate, breed and industry organization members. Together NCBA represents more than 230,000 cattle breeders, producers and feeders, and is the marketing organization for the largest segment of the nation?s food and fiber industry. NCBA members are responsible environmental stewards who love and respect the land, air and water that are fundamental to sustaining our way of life. We recognize an environmental stewardship code and have adopted policy that states that the Association ?shall not be compelled to defend anyone in the beef cattle industry who has clearly acted to abuse grazing, water or air resources.? ?2005 Policy,? National Cattlemen?s Beef Association, Property Rights and Environmental Policy 1.1. Cattle producers will continue to work every day to protect and improve the environment so that they and future generations will be able to continue to live off the land. Our members have worked diligently to comply with the Clean Water Act CAFO rule that was promulgated by the EPA in 2003. When the Second Circuit Court of Appeals issued its ruling in the Water Keeper Alliance et al. v. EPA case, however, it was clear that substantial modifications of the rule were required. The decision created confusion and uncertainty about producer responsibilities under the Act. Producers are owed the benefit of a final rule addressing the issues of the Second Circuit decision, and final state government action incorporating any required changes, before being asked to make substantial financial investments to meet permit requirements that may or may not apply to them. Some of the fundamental issues that must be addressed by the EPA for a reasonable amount of time prior to requiring CAFO compliance are below. Duty to Apply The original 2003 CAFO rule required that all large CAFOs must apply for a NPDES permit or prove that they have no potential to discharge by February 13, 2006. The Second Circuit held that CAFOs that do not discharge do not have a duty to apply for a NPDES permit; nor do they have to demonstrate that they do not have the potential to discharge. The Court held that the Clean Water Act gives the EPA jurisdiction to regulate and control only actual discharges ? not potential discharges, or point sources (i.e. CAFOs) themselves. The Court stated that unless there is an actual discharge of a pollutant to navigable waters, there is no point source discharge, no violation of the Clean Water Act, no requirement to comply with EPA regulations for point source discharges, and no duty to seek or obtain a NPDES permit. We are very concerned that EPA headquarters has not communicated this part of the decision effectively to EPA Regions, states or producers and is, in fact, perpetuating the belief that producers are required to get a NPDES permit regardless of whether they actually discharge. Even the NPRM for the deadline extension perpetuates this belief. For example, the NPRM states that the deadline is a date by which ?all? newly defined CAFOs and new sources ?must seek NPDES permit coverage.? This is clearly contrary to the Second Circuit decision. The Court clearly stated that only CAFOs that actually discharge must seek permit coverage. Fostering this wrong impression is not acceptable EPA policy and needs to be clarified for the EPA Regions, states and producers immediately. In addition, the decision leaves many unanswered questions that the EPA must address in a final rule before producers can know if the rule actually affects them, and if it does, how to comply. For example, the EPA must define ?discharge?. The EPA cannot expect producers to know if they have a discharge unless the term is defined. In addition, states must know the answer to this question before they can promulgate appropriate regulations. Another issue that the EPA must clarify in the final rule is the fact that if a CAFO discharges, but the problem that caused the discharge is remedied so that no discharge will occur in the future, the CAFO is not required to obtain a NPDES permit. In this situation, the producer is not excused from penalties or liability for the initial discharge, but he is, nevertheless, not required to get a permit as long as he fixes the problem. The EPA must also address what it intends to do about the fact that a number of states have a substantial backlog of permit applications and they do not have the resources available to process them in a timely manner. This backlog is expected to grow significantly given the fact the NMPs must be incorporated in the permit and be made available for public review and comment. How does the EPA propose to address this problem? What happens to a producer who applies for a permit in a timely manner, but will not receive an approval until after the ?deadline?? Unpermitted discharges during this time should not be subject to enforcement under an ?application shield? concept, similar to the concept employed under Title V of the Clean Air Act and under numerous state provisions. Agricultural Stormwater Permit Requirements The Court upheld the EPA?s stormwater discharge exemption from NPDES permitting requirements as long as a CAFO follows a site-specific NMP that controls runoff and ensures appropriate agricultural utilization of applied nutrients for the land areas under the control of the CAFO. Incredibly, some states and EPA Regions have argued that the NMPs must be incorporated into a NPDES permit in order for the exemption to apply. The Court made no such requirement. It is nonsensical to argue that a CAFO must get a NPDES permit to qualify for an exemption from having to get a NPDES permit. In fact, the Clean Water Act is very clear about the fact the agricultural stormwater discharges shall not be regulated: The Act defines the term ?point source? as follows: ?[P]oint source? means any discernible, confined, and discrete conveyance, including but not limited to any pipe, ditch, channel, tunnel, conduit, well, discrete fissure, container, rolling stock, concentrated animal feeding operation, or vessel or other floating craft, from which pollutants are or may be discharged. This term does not include agricultural stormwater discharges and return flows from irrigated agriculture. 33 U.S.C. ?1362(14) (emphasis added). The Second Circuit Court considered environmental arguments to the contrary and rejected them. The EPA must clarify for producers, states and Regions that stormwater discharges shall not be subject to permitting under the Act. Public Participation in the NMP Process The 2003 CAFO rule required that each CAFO with a NPDES permit must develop a NMP to control runoff and limit nutrient application rates. The rule did not require, however, that the NMP must be incorporated into the permit itself and thus be subject to agency review and public scrutiny before the permit is issued. The Court rejected this approach and held that NMPs are ?effluent limitations? that must be specifically included in the NPDES permits and be subject to public review. This is a substantial shift from the original plan. Development and implementation of NMPs has been delayed in many cases until the EPA answers many questions in its forthcoming rulemaking. Some of those questions include: What constitutes a NMP? What part of a NMP must be made available for public review? What will be included in the NMP template and how can it be used? How will the EPA address confidential business information concerns? What will be the scope of EPA review and oversight on NMP development? How will the EPA incorporate flexibility into NMPs so that producers will not be required to seek agency review and public input for minor adjustments to the NMP? What will be considered a major modification? How will the EPA minimize administrative burdens imposed by the Second Circuit decision? How will the EPA address the reality of inadequate technical resources available to assist producers in NMP development? Has the EPA surveyed the NRCS and other resources to determine the number of NMPs that must be written and the available qualified technical assistance to accomplish the task? This is a fundamental question that must be answered prior to imposing deadlines. Unless qualified technical assistance is available to accomplish the requirements of the rule, the reality of an unreasonable deadline is the illogical and unfair imposition of unfunded mandates on CAFOs. These are just a few of the many questions that need answers prior to imposing compliance deadlines on producers. Conclusion Producers cannot be expected to apply for permits or develop NMPs by guessing about the answers to the above and other fundamental questions. They need concrete answers to them before they can reasonably be asked to expend funds on permit and NMP development that may or may not comply with final EPA requirements. To require otherwise is unfair, and makes no practical, legal, or economic sense. NCBA recommends a reasonable compliance deadline of no sooner than one year after EPA approval of an individual CAFO?s NPDES permit, including an EPA- approved nutrient management plan (?NMP?). Such an approval is unlikely to occur prior to May 2009 or May 2010, depending on state ability to craft appropriate legislation and regulations addressing the many issues that must be addressed in rulemaking as the result of the Second Circuit Water Keeper Alliance et al. v. EPA decision. This proposed deadline makes sense given the realities of the time it takes to go through the formal rulemaking process and incorporate required changes: ? Estimated date of submission of the proposed rule to OMB for review is February 1, 2006. ? OMB is expected to review the document for a period of three months. ? Estimated date NPRM will be published in the Federal Register is May 1, 2006. ? Expected 60-90 day comment period: comments due on August 1, 2006. ? EPA expected to take nine months to read comments and issue final rule. ? Final rule to be published in the Federal Register on May 1, 2007 (which is after the proposed deadline of March 30, 2007). ? States will need one to two years to legislate on the requirements and draft appropriate regulations. Some legislatures will have completed their work for the year prior to the final rule?s promulgation in the Federal Register. These states will need at least two years after the final rule?s promulgation to complete their work. ? Producers should be given one year after states have completed their work to begin the process of applying for a NPDES permit with an approved NMP. Because NMPs will be subject to public review and comment, producers should not be required to comply with the rule until one year after the EPA approves the NMP and issues the permit. Thank you for your consideration of our comments. Sincerely, Tamara Thies Director, Environmental Issues National Cattlemen?s Beef Association