# ![](media/image1.png)City Manager's Office

Post Office Box 2570

Waco, Texas 76702-2570

254 / 750-5640

Fax: 254 / 750-5880

www.waco-texas.com

August 29, 2006

Water Docket

Environmental Protection Agency

Mail Code 4203M

1200 Pennsylvania Ave., NW

Washington, DC 20005

> Re: Docket ID No. EPA-HQ-OW-2005-0037

Comments By the City of Waco, Texas on Proposed Revised National
Pollutant Discharge Elimination System Permit Regulation and Effluent
Limitation Guidelines for Concentrated Animal Feeding Operations in
Response to *Waterkeeper* Decision

To the Environmental Protection Agency:

The City of Waco, Texas (\"Waco\" or \"the City\") appreciates the
opportunity to comment on the Environmental Protection Agency\'s
(\"EPA\'s\") proposed revisions to the NPDES Permit Regulation and
Effluent Limitation Guidelines for Concentrated Animal Feeding
Operations (\"CAFOs\") in response to the Second Circuit Court of
Appeals decision in *Waterkeeper Alliance v. EPA* (\"*Waterkeeper*\").

The City is a Texas home-rule municipality of approximately 110,000
people whose sole source of public drinking water is Lake Waco, which is
also the source of the drinking water that the City supplies to
approximately 30,000 citizens of other small communities in central
Texas. Tens of thousands of citizens of Waco and people throughout the
region fish, swim, water ski, and engage in other water recreation in
Lake Waco every year. Unfortunately, for at least the last two decades,
Lake Waco and the drinking water and water recreation that it provides
have been damaged by the polluted runoff and other discharges from over
50 dairy CAFOs that are located in the watershed of the North Bosque
River. The North Bosque contributes approximately 70% of the flow to
Lake Waco, and with it large amounts of nutrients and other pollutants
coming from the dairy CAFOs\' waste and wastewater.

Since 1996, the North Bosque River has been on the \"303(d) list\" of
impaired water bodies not meeting water quality standards, because of
its high levels of phosphorus and bacteria. This impairment is impacting
Lake Waco, particularly following heavy rainfalls, and forcing the
citizens and industry in our community to spend millions of dollars to
treat the lake water for drinking purposes and to upgrade our treatment
facilities to address taste and odor problems caused by the heavy algae
growth fed by the phosphorus loadings and to meet current and future
federal mandates. Every public and private study of the causes of this
pollution has determined that the largest contribution comes from the
waste application fields associated with the many dairy CAFOs in the
watershed of the lake. Studies also conclude that, without meaningful
changes in the waste management practices at the dairy CAFOs, Lake Waco
cannot improve.

It is critically important to the City to protect its public drinking
water supply, and the City has had no choice but to undertake its own
efforts to deal with the taste and odor problems caused by the CAFO
waste from upstream. The City is spending more than \$54 million for
capital improvements specifically to deal with these taste and odor
problems, resulting in significantly increased water rates for our
citizens.

The City\'s vital concern with the impacts that CAFO waste discharges
are having on our citizens\' health and welfare has forced the City to
become well-versed in the science, law, and practicality of management
and regulation of the hundreds of thousands of tons of waste produced by
the cows confined at CAFOs in our watershed each year. Accordingly, the
City and its teams of scientists, engineers, and attorneys have invested
thousands of hours over the past ten years working with EPA Region 6,
the Texas Commission on Environmental Quality (\"TCEQ\"), and with the
dairies themselves and their representatives to attempt to solve the
critical problems related to CAFO waste management. Thus the City has a
considerable amount of relevant experience on which it draws in offering
these comments.

The City would like to commend EPA for proposing amendments to its
national CAFO rules that are largely in keeping with the Second
Circuit\'s *Waterkeeper* decision and that are, in the main, faithful to
the intent of the Clean Water Act to restore and maintain the integrity
of the nation\'s waters. The City agrees with, supports, and appreciates
the lengths to which EPA has gone in its preamble to the proposed rules
to explain what its proposed amendments are intended to do, and not to
do. In this regard, the City especially commends EPA on its clear
distinction between \"agricultural storm water\" runoff and all of the
other discharges of pollutants from a typical CAFO that remain subject
to NPDES permitting requirements -- especially the discharges from
retention control structures (\"RCSs\") onto saturated fields when acute
and chronic storm conditions cause runoff of pollutants from the CAFO to
exceed the capacity of its RCSs.

The City can only hope that, if these amendments are adopted, the
permitting authorities will continue to rigorously apply the CAFO
permitting requirements and the enforcement tools at their disposal to
any CAFO that might seek to avoid obtaining a discharge permit despite
the inability of its RCSs, berms, and other structures to contain all of
its polluted runoff and other discharges.

Duty to Apply

Presumption of Actual Discharge.\
Part III.A.3.

This City believes that EPA should not have assumed that the only
response to the Second Circuit's vacation of the "duty to apply"
provision of the 2003 rule was to require permits only if CAFOs admit in
their applications that they discharge or propose to discharge
pollutants. The Second Circuit went so far as to essentially *invite*
EPA to create a "regulatory presumption" that Large CAFOs "or some
subset thereof" actually discharge. *Waterkeeper Alliance v. EPA*, 399
F.3d 486, 506 at n.22 (2d Cir. 2005). The City questions why EPA did not
consider and accept this invitation.

By this time, hundreds, if not thousands, of CAFO discharge permit
applications are pending at state agencies and EPA regional offices
around the country that demonstrate on their face that the CAFOs *will*
discharge when rainstorms exceeding the 25-year, 24-hour rainfall
containment capacity for which their RCSs are sized cause them to have
to discharge their wastewater onto saturated fields (from which it will
run into waters of the U.S. without serving any agronomic purpose).
Indeed, it is an extremely unusual CAFO that can meet a true "no
discharge" standard.

Even if the RCSs are sized to contain storm events such as 100-year,
24-hour or 25-year, 10-day, the CAFOs will still have to discharge with
some regularity, especially when "chronic" rainfalls exceed the period
of time for which the RCSs were sized. For example, in the North Bosque
River watershed in Texas, where over 50 dairy CAFOs are located that
adversely affect the City of Waco's water supply, RCSs sized to contain
25-year, 24-hour rainfall events, even if properly maintained and
operated, discharge wastewater approximately every four years as a
result of ten-day "chronic" rainfall events.

Therefore, documentation presently exists at permitting agencies across
the country demonstrating that the overwhelming majority of CAFOs in the
country will discharge pollutants into waters of the U.S. Under the
revised rule that EPA has proposed, will any of these CAFOs that want to
take their chances on being caught during a discharge be allowed to
simply withdraw their applications?

It seems to the City that an appropriate solution would be for EPA to
revise 40 CFR §122.23(d) to require an NPDES permit application for any
CAFO located within one-half (1/2) mile upgradient of any water of the
United States which would generate wastewater, including contaminated
stormwater runoff from the animal confinement area, beyond the
containment capacity of its RCSs, as a result of storm events of any
magnitude and duration that, statistically, will occur with frequency
of, say, less than 50 years. Consistent with footnote 22 in the
*Waterkeeper* decision, this could still be structured as a
"presumption" that a CAFO could rebut by demonstrating "no potential to
discharge." Basically, however, CAFOs with RCSs that will necessarily
overflow during the operating life of the facility should be
regulatorily presumed to actually discharge (or, perhaps, propose to
discharge), circumstances under which NPDES permits are required.

Equating NMPs with the Agricultural Stormwater Exemption.\
Part III.A.3.(c)(pp. 26-27 of Preamble).

As part of its proposal to address the Second Circuit's decision on
"duty to apply," EPA says that it is considering explicitly requiring
that large CAFOs that are not permitted because they do not discharge or
propose to discharge comply with the technical standards for land
application established by the Director in order for the runoff from the
fields to be considered exempt agricultural stormwater.

The problem with this proposal is what has come to be accepted as the
"technical standards for land application" \['for nutrient management,'
40 CFR §412.4(c)(2)\] established by the Director that, if followed in
preparation and implementation of an NMP, are deemed to be the
equivalent of "site specific nutrient management practices that ensure
appropriate agricultural utilization of the nutrients," which will allow
any runoff from the field to fall within the agricultural stormwater
exemption.

The problem is that the determination of what is required in order for
an NMP to meet the land application standard has effectively been
delegated to an entity that is heavily influenced by the agriculture
industry, the Natural Resource Conservation Service (NRCS) and that
considers factors other than "the appropriate agricultural utilization
of the nutrients" in promulgating its "Code 590" nutrient application
rates.

This problem is compounded by the fact that the NPDES permitting
authorities, within the City's experience, accept any NMP uncritically
if it complies with the Code 590 promulgated by the NRCS in the state
where the CAFO is located.

As an extreme example, in Texas, the Texas Commission on Environmental
Quality (TCEQ) CAFO permitting rules go so far as to *define* an NMP to
*be*: "The Natural Resources Conservation Service Practice Standard Code
590 plan." 30 TAC § 321.32(33).

The TCEQ's rules even define the term "agronomic rate" in a wholly
circular way to make any rate of land application of manure or
wastewater an "agronomic rate" if it is "in accordance with a plan for
nutrient management designed to enhance soil productivity and provide
the crop or forage growth with needed nutrients for optimum health and
growth." 30 TAC § 321.32(1). The TCEQ unabashedly construes this
language simply to mean "in accordance with an NMP."

The result effectively amounts to unchecked delegation of the power to
set the most critical standards for protecting the nation's waters from
CAFOs' polluted field runoff to an entity that traditionally has been
more concerned with agricultural economics than with water quality. When
the NRCS has been given such a large part of the responsibility for
safeguarding water quality from runoff from CAFO waste application
fields, we have ended up with Code 590s that set standards for NMPs that
go far beyond the limited purpose of the agricultural stormwater
exemption, *to allow outright waste disposal without any agronomic
purpose whatsoever*.

Consider the rates at which the current Texas NRCS Code 590 allows
Phosphorus to be applied to fields in the state that already have
Phosphorus concentrations far beyond the agronomic need of the crops.

For example, Texas NRCS Code 590 allows Phosphorus to be applied to
fields with a "medium" ("M") Phosphorus runoff potential, and that
already have soil test Phosphorus concentrations of 199 ppm, at annual
application rates of *six times* ("6x") the true agronomic rate for such
fields -- that is, six times the rate at which the crop will remove
Phosphorus from the soil (i.e., *use it*). The "6x" Phosphorus
application rate is allowed by the NRCS Code 590 in Texas even when a
field growing four cuts per year of coastal Bermuda has been so
overloaded with Phosphorus by past manure and/or wastewater applications
that it already has *nearly five times the 40 ppm Phosphorus
concentration in the soil that the crop needs*. (On fields that have a
"high" Phosphorus runoff potential, four times ("4x") the crop removal
rate is allowed when four cuttings of coastal bermuda per year are being
grown.)

This is not a standard which, by any stretch of the imagination,
"ensure\[s\] appropriate agricultural utilization of nutrients in the
manure." It is blatantly (and admittedly) encouragement of waste
disposal of manure from CAFOs, regardless of the impact of the runoff on
receiving streams.

The problem is that, under the existing federal CAFO rules, there is no
effective check on this abuse, and the amendments that EPA is now
proposing do nothing to correct this serious problem.

The national effluent limitation guidelines for CAFOs state that the
land application rates for manure and wastewater that are contained in
an NMP must comply with "technical standards for nutrient management
established by the Director" (that is, by the permitting authority). 40
CFR § 412.4(c)(2). On the face of it, this would seem to require the
permitting agency in the state with NPDES delegation to assess and adopt
such NMP technical standards by using rulemaking procedures. But this
has not been the way that this rule has thus far been interpreted.

What is actually needed is for the federal CAFO rules to be amended to
make unequivocally clear that setting of the "technical standards"
governing land application of nutrients in waste and wastewater for NMPs
must be performed by the permitting authority itself, be it a state
agency or the EPA region. It should be made clear that this duty cannot
be delegated to NRCS or any other entity. It should also be explicit
that notice and comment rulemaking procedures are required to set the
standards.

However, until something is done to ensure that the "technical standards
for nutrient management" are actually established by the permitting
agency and that they actually meet or exceed the requirement for
"agricultural utilization of the nutrients" under the agricultural
stormwater exemption, a CAFO's merely having an NMP and demonstrating
compliance with it should not be enough *per se* for a CAFO discharging
polluted runoff from a field without a permit to escape being penalized.

As long an NMPs do not actually conform to what is necessary for the
agricultural stormwater exemption to apply, they should not be treated
as "get out of jail free cards" for Large CAFO's that have them. If they
are, then rather then such an NMP requirement for eligibility for the
agricultural stormwater exemption being protective of the environment,
it might well turn out to have the opposite effect.

Nutrient Management Plans

Procedures for Public Participation in Permitting.\
Part III.B.3.(c).

The City strongly supports the rule amendments that EPA has proposed to
ensure that nutrient management plans (NMPs) be submitted with permit
applications, considered by the permitting agency, facilitate effective
public participation, and be incorporated into the CAFO permits. The
City particularly supports the procedures that EPA has proposed to
ensure that NMPs are subject to the same review and same public
participation procedures when a CAFO is seeking to qualify under a
*general permit*.

The City's only comment in this area is in response to EPA's request, on
page 38 of the Preamble, for comment on whether a fixed minimum time
should be specified in the rule for public review of NMPs submitted with
NOIs to qualify under a CAFO general permit. In short, the City's answer
is that 30-days should be specified in the rule as the *minimum* time
required, with more time to be allowed for review of individual NOIs
depending on the kinds of factors mentioned by EPA -- for example, the
number of NOIs be publicly noticed at any one time, the complexity of
the material, the relative availability of NOIs to the public, and the
opportunity for extension of the comment period.

NMPs are complicated documents that require time to analyze, even for an
expert. Persons potentially affected by runoff from CAFOs' waste
application fields need time, after notice, to obtain the NMPs and other
significant documents accompanying the NOIs, review them, hire experts
to analyze them, prepare written comments, and file them with the
agency. Thirty days is the minimum time necessary to do this, even with
the utmost efficiency. If more than one NOI is noticed in a watershed
within the same 30-day period, then correspondingly more time should be
afforded.

Incorporation of NMP Terms in NPDES Permits.\
Part III.B.3.(d).

In general, the City supports EPA's proposal for incorporation of the
terms of NMPs into NPDES permits. In response to the Agency's specific
request for comment on pp. 46-47, the City understands how having to
respond to significant comments on each individual CAFO's NOI will
increase the permitting agency's workload beyond what it has been when,
prior to the *Waterkeeper* decision, there was effectively no
opportunity for public participation when CAFOs qualified to operate by
simply filing NOIs under a general permit. Nevertheless, as held by the
Second Circuit, this is what is required by the Clean Water Act when
effluent limitations are being determined.

In this vein, the rule should make clearer what EPA seems to intend --
that all features of a CAFO and its operations that control or otherwise
affect the runoff and other discharges of pollutants from a CAFO
constitute *effluent limitations* for which the public participation and
permit incorporation requirements of *Waterkeeper* apply.

This means that the public has the right to review and comment on such
aspects of the CAFOs as RCS sizing, berming of animal confinement areas,
manure storage, and measures for complying with water quality standards
and TMDLs -- which should also be included with the NOIs, in addition to
the NMPs.

Changes to NMPs.\
Part III.B.3.(e).

The City agrees with the need to make sure that, after a CAFO permit has
been issued, significant changes to an NMP be subject to the same kind
of review procedures as an initial NMP. However, the City does not agree
that a "substantial" change in an NMP should be allowed after only the
"minor" modification procedures in 40 CFR §122.63 are followed.

If the NMP changes are "substantial," as EPA has described what that
term encompasses in section 122.42(e)(5)(iv) of the proposed rule, then
the resulting modification to the CAFO's permit is not "minor" in any
meaningful sense of the word. If a CAFO is proposing changes that would
result in an increase in runoff of manure or wastewater from the
facility, then the same review procedures should apply as for any
"major" permit modification, as specified in 40 CFR §§122.62 and 124.5.
Such substantial changes bear no principled resemblance to what have
heretofore been treated as minor modifications under section 122.63:
correction of typographical errors, requirement of more frequent
monitoring or reporting, changes of interim compliance dates, changes in
ownership or operational control of a facility, changes of construction
schedule, and deletion of a point source outfall.

For over twenty years, ever since section 122.63 has been included in
EPA's NPDES permitting rules, minor modification procedures have never
been allowed for any changes in *effluent limitations*, which, according
to the Second Circuit decision, any component of an NMP that limits the
discharge from a CAFO has to be.

BCT Effluent Limitations for Removal of Pathogens.

Adoption of AWWA Comments.\
Part III.E.3.

The City agrees with the American Water Works Association (\"AWWA\")
that the BCT-based effluent limitation guidelines adopted in the 2003
CAFO rule do *not* represent the best conventional pollutant control
technology for removal of the pathogens that threaten the municipal
drinking water in Waco and nationwide. Like AWWA, the City believes that
EPA should develop technology-based standards for CAFOs that will result
in much greater pathogen reduction in order to protect drinking water
sources and reduce the burden on drinking water treatment facilities to
remove pathogens contributed by CAFO wastes. Accordingly, by this
reference, the City adopts the comments on this proposed rule submitted
by the AWWA in this docket, and urges EPA to place greater emphasis on
protecting drinking water sources from CAFO wastes without placing
excessive financial and technological burdens of additional water
treatment on those supplying and consuming drinking water.

In Conclusion . . .

The City of Waco supports ongoing revisions to the CAFO rules that would
require CAFOs to adopt waste management practices that will protect
downstream sources of public drinking water and important water
recreational activities. CAFOs must be required to control their
pollution just like any other industry and not pass the costs of
alleviating the degradation that they cause onto the public.

Again, the City of Waco appreciates the opportunity to participate in
this vital rule revision process and looks forward to a final product
that is in keeping with the mission of the Agency of restoring and
maintaining the integrity of the nation\'s waters.

Sincerely,

![](media/image2.png){width="2.53125in" height="0.6527777777777778in"}

Larry D. Groth

City Manager

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