Executive Summary

Report

Feedlot Dust
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Koch
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Pilgrims Pride
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Smith Farms
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Sustainable Livestock
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Antibiotic Resistance
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Vertical Integration
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Natural Meat
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Organic Meat
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Recommendations

Water

Animal operations produce waste in industrial proportions, and seepage, spills, and 'accidental' pollution into waterways from barns, lagoons, feedlots and meat processing facilities is not uncommon.

Feedlots, dairies, swine and poultry growing operations also pollute indirectly as a result of their regular farm management practices. They spray or apply manure and wastewater onto fields to be absorbed as fertilizer by crops. But because CAFOs often have more manure to distribute than crops can readily absorb, the excess nutrients can seep from fields into the state's waterways.

According to the EPA, agricultural practices contribute to the degradation of 60 percent of the nation's surveyed rivers and streams, 50 percent of the nation's surveyed lakes, ponds and reservoirs, and 34 percent of the nation's surveyed estuaries. (55) Feedlots adversely effect 16 percent of the rivers and streams impaired by agricultural practices overall. (56)

In Texas the Gulf of Mexico already suffers from excessive nutrient levels. Nutrients from farm run-off, including animal waste, are linked to the formation of a seven thousand square mile "dead zone" of hypoxia (low oxygen) that cannot support most aquatic life. (57) As Table 2 shows, by 1998 animal confinement activities had caused significant

pollution damage to at least 388 miles of Texas streams and rivers and over 23,700 acres of lakes, (58) largely in east and north-central Texas where dairies and poultry operations dominate.

A study conducted by TNRCC for the Texas legislature in 1999 found that certain creeks running through areas with many poultry houses show higher fecal coliform and nutrient concentrations than reference creeks. "That the differences among the study streams are real, and do have some relation to poultry production activities, is suggested by several lines of evidence," the report states. "…The more intensively utilized sub-watersheds consistently exhibit elevated, but not always statistically significant, nutrient and oxygen demanding parameters." (59) While the study fell short of confirming a direct link between the application of poultry litter and the degradation of Big Cypress Creek or Lake O' the Pines, the authors note that "the downstream portions of the basin (Big Cypress Creek, Lake O' the Pines, Caddo Lake) would continue to experience increasing nutrient loads if additional development [poultry production activities] employs today's management practices." (60)

Erath and surrounding counties support a large dairy industry. Waste from Erath County dairies has significantly degraded the Upper Bosque River and the creeks of the Upper Bosque, which show increased microbe levels and increased phosphorus. The Texas Institute for Applied Environmental Research (TIAER) at Tarleton State University began to test sites in the North Bosque River watershed above Hico, Texas for fecal coliform in 1995. TIAER found that substantially elevated fecal coliform levels were correlated with the application of dairy manure to the fields. (61) This may pose a threat to drinking water supplies in cities such as Waco, which receives water from the Bosque at Lake Waco.

Over several years, TIAER conducted in-depth studies of instream water quality during storm events on the Upper North Bosque river watershed and also found that "the dairy industry emerges as the major contributor to nutrient loading." (62) In particular, TIAER scientists found elevated phosphorus levels specifically associated with fields where animal waste had been applied. (63)

Texas regulations limit application of manure and lagoon effluent to land based primarily on the nitrogen requirements of the crop. (64) But application that meets crop nitrogen needs results in over-application of phosphorus. "When manure is applied at the nitrogen rate for plant uptake, phosphorus is typically over-applied by a factor of 2 1/2 to 3 times crop requirements, if not more," TIAER reported. (65) CAFOs must conduct an annual soil sampling analysis to determine, among other things, whether phosphorus levels are within an acceptable range (less than 200 parts per million). (66) However Texas regulations do not necessarily prohibit the land application of manure in cases where the phosphorus benchmark has been exceeded. If that occurs, a CAFO may continue to apply manure as long as it submits a nutrient utilization plan "to assure that the beneficial use of manure is conducted in a manner that prevents phosphorus impacts to water quality…" (67) In other words, the current regulatory mechanism for controlling nitrogen and phosphorus runoff from CAFOs into Texas waterways is sufficiently weak as to permit ongoing phosphorus contamination even in areas that already exceed the state's phosphorus benchmark.

The Ogallala Aquifer

Feedlots and hog operations frequently locate near the numerous "playa" lakes that dot the High Plains. Playa lakes are large, circular natural depressions where water collects and seeps slowly down into the Ogallala Aquifer, the major source of both drinking and irrigation waters for the region. (68) Until 1993, operators could use the playa lakes as retention ponds for wastewater, and those who started operations before September 1, 1993 may still do so. (69) The land throughout the Panhandle is also perforated with incompletely plugged wells, test holes, oil and gas wells, and other borings. These act as man-made recharge features for the Ogallala.

There have been few studies of groundwater in the High Plains. One study conducted for the feedlot industry found nitrate-nitrogen concentrations beneath feedlots that ranged from 0.25 to 9.1 milligrams per liter, all below state and federal standards for public drinking water (10 mg/L). While the study found the well water to be generally good, it noted "potential elevated nitrate from possible seepage from a playa used for runoff collection" into water supply wells between 100 and 200 feet of the aquifer surface. (70) In a follow-up study, J.M. Sweeten found no statistically significant evidence of contamination beneath two cattle feedlots located 270-320 feet above the water table. (71)

In general, industry studies emphasize that the quality of water in the Ogallala remains high, but residents throughout the Panhandle believe man made holes, soil cracking, and seepage from the playa lakes represent a significant threat to the aquifer. "The playa lake system up here recharges the Ogallala," said Jeanne Gramstorff of ACCORD. Gramstorff worries about seepage into the aquifer from cracking in the playa reservoirs. "When that soil cracks there is no bottom. When the clay cracks, it cracks all the way," potentially allowing waste to seep down into the Ogallala.

In addition, members of ACCORD have reported waste runoff from hog barns flowing into a local drainage ditch. "[Dean Paul] had a pipe dumping into a ditch running alongside the road," said Pat Peckenpaugh, another ACCORD member. "We tested it and it was full of feces. When he applied to expand [his facilities], we protested. Mr. Vasquez [one of the Commissioners] stood up for this violation, and he took the pipe out. But there's an erosion there now and water still runs down from the barns." (72)

The lagoons themselves are typically lined with compacted local clay, which may also be subject to cracking. "A clay lined lagoon is nothing but packed dirt they pulled out of the hole," said Barbara Philipps. (73) Members of ACCORD have asked that CAFOs build lagoons to a much higher standard, with synthetic (rather than in situ clay) liners, leak detection and ground water monitoring. (74)

Regulatory Environment

The most important environmental controls that apply to industrial meat producers arise out of the 1972 Federal Clean Water Act, which requires a National Pollution Discharge Elimination System (NPDES) permit for all "point source" polluters. Confined animal feeding operations, including beef feedlots are regulated by the Environmental Protection Agency as "point source" polluters under the Clean Water Act. (75) Traditionally, federal and state regulators have implemented this Act by requiring permits for the on-site waste containment system of CAFOs above a certain size, but not for small operations or off-site land application of waste even if that application may result in increased nutrient load or other contamination of local waterways. Yet many community and environmental groups say that these layers of regulation fail to protect either the environment or human health because enforcement is lax, water quality monitoring is rare, and states have little staff to devote to feedlot programs. (76)

Technically speaking, Texas environmental laws prohibit the direct discharge of any animal waste into Texas waterways except during a chronic or catastrophic rain event. If these regulations were adequate in scope and strictly monitored, Texans should expect to see little CAFO-related contamination in the state's water sources.

The regulations do not, however, ensure that CAFOs will discharge only during chronic or catastrophic rainfall events. Standard manure management practices can lead to discharges and subsequent water contamination under normal operating circumstances. The TNRCC implicitly acknowledged this fact when it estimated that its 1999 enforcement actions reduced water contamination from illegally discharged manure waste by at least 1,056,151 pounds. (77)

This does not take into account other illegally discharging CAFO facilities for which TNRCC has not taken enforcement action. And in one case of an illegally operating poultry CAFO in Central East Texas, TNRCC's failure to act swiftly and severely-despite its knowledge of the facility's violations-allowed the CAFO to pollute nearby property for almost a decade without penalty (see sidebar, page 15).

Elimination of Common Law Nuisance Actions

Because CAFO operating guidelines are inadequate in Texas, CAFOs often adversely affect their neighbors by causing severe odors, manure dust plumes, and surface water contamination. Traditionally, these neighbors could have brought a common law nuisance action to try to recover money damages or to get a court order requiring the CAFO to stop causing the nuisance. As a further hindrance to environmental protection, however, the state legislature passed a "Right to Farm" bill in 1981, which virtually eliminates the nuisance liability of agricultural operations, including CAFOs, for nuisances after the facilities have been permitted for a year. It also requires the complainant to pay all attorney fees and other legal costs incurred by the CAFO owner for his defense against the lawsuit-even if the owner loses. (78)

In 1997 the Texas Legislature passed an amendment to the law which shielded CAFOs from nuisance suits even if they expand their facilities. It defined certain expansions (addition of pens, barns, etc.) as "agricultural improvements" and declared that "[s]uch an improvement does not constitute a nuisance."79 Because the Right to Farm Act eliminates neighbors' ability to bring a nuisance action to protect their rights to use and enjoy their own property, neighbors must rely upon the TNRCC to protect their rights. The TNRCC's failure to require CAFOs to operate in compliance with the law and with respect for their neighbors is therefore even more egregious.

Threats to Public Participation in Decision-making

Until 1995, Texas required each new CAFO above a certain size to obtain separate individual water and air pollution permits from the state. As part of this permit process, people affected by the new facility (usually neighbors) could formally contest the permit and ask for a quasi-judicial hearing before an impartial judge. During such a hearing, members of the public could directly question applicants and negotiate changes to the permit to reduce odors or ensure the safety of local drinking water sources.

But in 1995, Texas "streamlined" the state permit process. The TNRCC passed new CAFO regulations (the Subchapter K rules) that consolidated air and water permits and created a "more efficient and objective public notice and comment procedure based on consideration of only qualified issues that have 'technical merit.'" (80) This change effectively eliminated the ability of local communities to contest permits for new hog, chicken and feedlot operations springing up around them by requiring members of the public to demonstrate the "technical merit" of their case before they could even begin to pursue such a case. It also instituted a "permit-by-rule" system rather than individual permits. "Permit-by-rule" generally allows a facility to get a permit if it meets the requirements set out in the rule. There is no consideration of site-specific issues or local protests for individual facilities.

Shortly after enactment of Subchapter K, Texas Farm Inc., a subsidiary of Nippon Meat Packers Inc. of Osaka, Japan, sought authorization of a new 249,600 head hog operation in Ochiltree County. Active Citizens Concerned Over Resource Development (ACCORD) attempted to contest the permit under the new rule.

ACCORD members, many of them farmers, and other residents of the county sent dozens of letters to TNRCC protesting the permit based on concerns about the noxious smells, increased flies and airborne diseases, depletion of the Ogallala Aquifer and contamination of Kiowa, Gilhula and Wolf Creeks, problems with the proposed lagoon system (including concerns that the lagoons were too small), inadequacy of the proposed buffer zone, and decreased land values adjoining the facility. Many people also felt that this facility would only compound the problems associated with existing hog facilities in the area. (81)

TNRCC responded that all the complaints in the letters lacked "technical merit" under Subchapter K, and authorized the hog facility. ACCORD appealed the TNRCC's grant of the permit in district court. A judge ruled for ACCORD and declared this permit "invalid." The District Judge found that the commission lacked "reasoned justification" to adopt Subchapter K. (82) Specifically, the Judge expressed concern about the new rules' elimination of contested case hearings. The six specific permits-by-rule mentioned in the lawsuit were invalidated by the judgment. The status of the approximately 60 other Subchapter K permits-by-rule that were issued prior to the Judge's ruling is unclear.

Shortly after the ruling, the TNRCC enacted new revisions to the existing CAFO regulations, known as Subchapter B rules, which essentially sidestepped the court ruling by offering "authorization by individual permit or by registration under a permit-by-rule" [emphasis added]. (83) The revisions allow CAFOs to "register" with TNRCC as long as they meet the requirements of the Subchapter B rules. In general, individual permits are not required unless a CAFO cannot meet the provisions of the permit-by-rule registration. (84) TNRCC made this revision, as well as others, despite much public opposition to the new rules.

The Greenbelt Municipal and Industrial Water Authority (Greenbelt) submitted lengthy comments to TNRCC regarding the proposed rule changes. Greenbelt is located at Greenbelt Lake in the Panhandle, near the convergence of several creeks which provide the sole source of potable water to five member cities. (85) Large manure lagoons at CAFOs upstream of these drinking water sources and wildlife areas threaten public health and the environment if the lagoons leak or spill. Expressing fears that the current regulations were too weak, Greenbelt asked the TNRCC to modify its proposed rules to create water quality buffer zones to protect surface water used for a municipal water supply.

"The provision that the required retention system be designed to contain the runoff from a twenty-five year, twenty-four hour rainfall event virtually assures that there will be rainfall events that exceed the capacity of the retention system. For us, this would result in pollution of Kelly Creek and Greenbelt Lake…Pollution could also occur as a result of the catastrophic failure of the lagoon, particularly during dry weather seasons when a highly concentrated stream of pollutants would then enter the surface water body resulting in pollution of the drinking water supply." (86) Despite the Authority's concerns, the TNRCC's adopted final rules did not include provisions for surface water quality buffer zones. The commission determined that to consider such a request, it would have to substantially change the proposed rules. Rather than do that, it elected to have the executive director "study" the issue and "provide a recommendation to the commission" after the adoption of the rules. (87) Later, TNRCC suggested that its implementation of Texas House Bill 801 (1999)-requiring individual permits for CAFOs located near sole source drinking water supplies-would address Greenbelt's concerns. (88)

NOTES:

55 U.S. Environmental Protection Agency, Office of Water, "National Water Quality Inventory: 1994 Report to Congress." (Washington, D.C.: 1995), pp. ES-15, ES18, ES-25.

56 U.S. Environmental Protection Agency, "National Water Quality Inventory: 1994 Report to Congress" (Washington, D.C., 1995), p. 35.

57 Minority Staff of the U.S. Senate Committee on Agriculture, Nutrition and Forestry, "Animal Waste Pollution in America: An Emerging National Problem" (December 1997), p. 2.

58 TNRCC, Texas Non-Point Source Pollution Assessment Report and Management Program, (October 1999, SFR-68/99), Appendix F, pp. 2-4, 9-10.

59 TNRCC, Poultry Operations Study (January 1999), Appendix C, p. 48 and Appendix A, pp. 12-14.

60 TNRCC, Poultry Operations Study (January 1999), Appendix C, p. 51.

61 Hauck, Larry, "Fecal Coliforms: Their Presence & Meaning," in: Bosque River Advisory Committee, Briefing Papers (Stephenville, Texas, January 23, 1996), pp. D-3, D-4.

62 McFarland, Ann and Larry Hauck, Livestock and the Environment: Scientific Underpinnings for Policy Analysis (Texas Institute for Applied Environmental Research: Tarleton State University, September 1995), p. iii.

63 McFarland, Ann and Larry Hauck, Livestock and the Environment: A National Pilot Project, Report on Stream Water Quality in the Upper North Bosque River Watershed (Texas Institute for Applied Environmental Research: Tarleton State University, June 1997), pp.69-70.

64 30 T.A.C. §321.39(f)(19)(B).

65 McFarland and Hauck (1997), p. 70.

66 30 T.A.C. §321.39(f)(28).

67 30 T.A.C. §321.39(f)(28)(G).

68 Sweeten, J.M., T.H. Marek and D. McReynolds, "Groundwater Quality Near Two Cattle Feedlots in Texas High Plains: A Case Study," American Society of Agricultural Engineers, Vol. 11, No. 6 (November 1995), p. 845.

69 Sweeten, John M., "Cattle Feedlot Manure and Wastewater Management Practices," in: Animal Waste Utilization: Effective Use of Manure as a Soil Resource, ed. J.L. Hatfield and B.A. Stewart (Ann Arbor Press: Ann Arbor, 1998), p. 129-130.

70 Sweeten, John M., et al., "Well Water Analysis from 26 Cattle Feedyards in Castro, Deaf Smith, Parmer, and Randall Counties, Texas, January-February, 1990" (October 15, 1990), p. 5

71 Sweeten, Marek and McReynolds (1995), p. 846.

72 Interviews with Jeannie Gramstorff and Pat Peckenpaugh, Perryton, Texas, August 18, 1998.

73 Interview with Barbara Philipps, Perryton, Texas, August 18, 1998.

74 Letter to TNRCC from John J. Vay (representing landowners in Ochiltree and Johnson Counties), re: CAFO Rules/General Permit, April 13, 1998; Letter to TNRCC from David Hale, Mayor, City of Perryton, re: Comments Regarding TNRCC's Proposed General Permit and Amendments to Chapter 321, Subchapter B 30 T.A.C., March 26, 1998; Hale, David, "Comments to Warren Chisum & the Environmental Regulations Committee: CAFO Concerns," April 10, 1998.

75 40 C.F.R. §122.23(a).

76 Clean Water Network and Natural Resources Defense Council, America's Animal Factories: How States Fail to Prevent Pollution from Livestock Waste (December 1998), pp. ix-xi.

77 TNRCC, "TNRCC Final Annual Enforcement Report - Fiscal Year 1999," p. 10.

78 8 T.A.C. §251.004.

79 Texas House Bill 2945 (1997), codified at 8 T.A.C. §251.006.

80 TNRCC, "Common Questions and Answers Concerning Subchapter K," April 28, 1997. Internet source: http://www.tnrcc.state.tx.us/water/quality/agri/kqqqs.html, (printed 6/1/99).

81 Letter to Donnie Dendy from Darrell Williams, TNRCC, RE: Texas Farm, Inc., Application for Permit-by-Rule No. 03876, Ochiltree County, December 28, 1995 (incl. attachment: "Summary of Comments and Responses for Texas Farm, Inc., Subchapter K Application No. 03876").

82 Krishna, Hari and Clifton Wise, "Update on State Rules for Animal Waste Management," Texas Animal Manure Management Conference (Austin, Texas, September 9-11, 1999), pp. 3-4. Internet source: http://www.agen.tamu.edu/projects/tammi/Krishna2.htm.

83 Ibid. (Krishna and Wise, 1999), p. 4.

84 A measure passed by the 1999 Texas Legislature (HB 801) did make changes to the Texas Water Code which requires TNRCC to issue individual permits to CAFOs which are located near a sole source drinking water supply. In February 2000, TNRCC issued a draft of proposed new rules to implement this legislative mandate. (Letter to Interested Persons Mailing List from TNRCC, Office of Legal Services, February 11, 2000.)

85 Letter to TNRCC from William Allensworth (representing Greenbelt Municipal and Industrial Water Authority), re: "Greenbelt Municipal and Industrial Water Authority's Comments on Proposed Revisions to 30 T.A.C. Chapter 321, Subchapter B," April 13, 1998, p. 1.

86 Ibid., Letter to TNRCC from William Allensworth (representing Greenbelt Municipal and Industrial Water Authority), April 13, 1998, p. 3.

87 Texas Register, Volume 23, No. 37 (September 11, 1998), p. 9366.

88 Texas Register, Volume 24, Number 30, July 23, 1999, p. 5731.