11 Regulations for Protection of Groundwater and Surface Waters in Agricultural Areas

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Health and Sustainable Agriculture

Editor: Christine Jakobsson

Sustainable Agriculture

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In the US there is no single law that specifically addresses pollution in agricultural areas. In the US, regulations are established to carry out legislation (laws) and guidance is written to help in carrying out and/or complying with regulations and sometimes legislation. Protecting and managing water quality in agricultural areas requires an effective management framework. This framework must be based upon various provisions of Federal and State laws and regulations, and local efforts. However, there are a number of federal laws affecting water quality issues in agricultural areas. The five principal laws are the Clean Water Act (CWA), Safe Drinking Water Act (SDWA), Farm Bill (FB), Coastal Zone Management (CZM) and the Federal Insecticide, Fungicide and Rodenticide Act.

Most tools and programs not under direct federal authori- zation are not uniformly available throughout the Great Lakes Basin under state and local authority.

Federal Programs

CWA, as amended, is the primary law in the United States to protect the quality of water resources (originally named the Water Quality Act of 1965). CWA has been around for over 40 years and has expanded and refocused several times. However, the goal of the Act has remained con- stant; ‘to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters and where at-

tainable, to achieve a level of water quality that provides for the protection and propagation of fish and shellfish, wildlife, and recreation in and on the water.’

The United States Environmental Protection Agency (EPA) is responsible for carrying out the Act nationwide, States and Tribes can assume authority to manage within their jurisdictions portions of the Act provided they meet the appropriate legal and program criteria. Water quality standards establish the foundation for most activities carried out under the Act. The Water Quality Act of 1965 relied on violations of water quality standards as a basis for pollution control. This approach was not uniformly successful in limiting water pollution, therefore the 1972 amendments (Federal Water Pollution Control Act) established the first comprehensive national framework for im- proving the quality of the nation’s waters. This framework resulted in a dual system being established that consisted of: 1) a technology-based approach that sets national discharge limits on point sources of pollution, and 2) a water quality-based approach that focuses on achieving and maintaining the specific quality of a water body (defined as water quality standards) that supports its designated uses. The water quality-based approach requires a Total Maximum Daily Load plan for managing both point and non-point source pollution (NPS) of pollution for those water bodies not meeting its water quality standards.

Generally, States adopt water quality standards to protect the following six standard designated uses of surface water bodies: aquatic life support, fish consumption, primary

Regulations for Protection of

Groundwater and Surface Waters in Agricultural Areas

Thomas E. Davenport

US Environmental Protection Agency, Chicago, Illinois, USA

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CASE STUDY USA

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contact recreation, (e.g. swimming and diving), secondary contact recreation, (e.g. boating), drinking water supply, and agricultural use. At a minimum, a water resource’s designated use must include secondary contact and propagation of fish and wildlife (NALMS, 1992).

Clean Water Act

There are two CWA pollution control programs linked to achievement of the management of water quality in agricultural areas. The Federal government established the National Pollutant Discharge Elimination System (NPDES) system to regulate point source discharges.

The backbone of the system are permits to regulate the amount and/or concentration of pollutants that can be legally discharged into a water body. These regulatory limits are set for each permit so as not to violate water quality in the receiving water. Section 502(14) of the Act defines point sources to include pipes, ditches and other discernible, confined and discrete conveyance from which pollutants are or may be discharged. Agricultural storm water discharges are explicitly excluded as point sources, except concentrated animal feeding operations (CAFOs). CAFOs are point sources, as defined by the CWA [Section 502(14)], must first be defined as an Animal Feeding Operation (AFO). AFOs are agricultural operations where animals are kept and raised in confined situations.

AFOs generally congregate animals, feed, manure, dead animals, and production operations on a small land area. Feed is brought to the animals rather than the animals grazing or otherwise seeking feed in pastures.

Animal waste and wastewater can enter water bodies from spills or breaks of waste storage structures (due to accidents or excessive rain), and non-agricultural application of manure to crop land.

An AFO is a lot or facility (other than an aquatic animal production facility) where the following conditions are met:

• Animals have been, are, or will be stabled or confined and fed or maintained for a total of 45 days or more in any 12-month period, and

• Crops, vegetation, forage growth, or post-harvest residues are not sustained in the normal growing season over any portion of the lot or facility.

AFOs that meet the regulatory definition of a CAFO may be regulated under the NPDES permitting program.

Previous EPA regulations based the definition of CAFOs on the number of ‘animal units’ confined. EPA no longer uses the term ‘animal unit,’ but instead refers to the actual number of animals at the operation to define a CAFO.

See the summary in Table 11.1.

A Large CAFO confines at least the number of animals described in the table below. A Medium CAFO falls within the size range in the table below and either:

• has a manmade ditch or pipe that carries manure or wastewater to surface water; or

• the animals come into contact with surface water that passes through the area where they are confined.

If an operation is found to be a significant contributor of pollutants, the permitting authority may designate a medium-sized facility as a CAFO.

A Small CAFO confines fewer than the number of animals listed in Table 11.1 and has been designated as a CAFO by the permitting authority as a significant contributor of pollutants.

Considerable progress has been made in remediating and preventing point source discharges. However, after three decades of increasingly stringent controls on point source discharges, much of the remaining pollution im- pacting water quality comes from NPSs.

The 1987 amendments to the Act established the first comprehensive national NPS pollution program. NPSs are defined as water pollution sources not meeting the definition of a point source. NPSs are generally episodic in nature, originating from diffuse sources at divergent locations making them inherently difficult to measure and manage. NPSs are not regulated at the Federal level nor are they traditionally regulated at the State and local level. The 1987 amendment (Section 319) required States to develop a NPS Assessment Report that documents the type of NPSs and locations that were threatening, or caus- ing, water quality problems, or impairing uses. Based upon the Assessment Report findings, States were to develop a comprehensive management program to address the problems identified and prevent future problems.

When the EPA approves both the assessment report and the management program (or portions of) the State is eli-

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Table 11.1. Regulatory definitions of Large, Medium and Small CAFOs.

gible for financial assistance to implement the approved portions of the management program. Specifically, State management programs were required to include, as a minimum, six components to be approved by EPA.

Two components are extremely important for managing water quality in agricultural area lake management.

These are:

1) Identification of best management practices and measures that will be undertaken to reduce NPS loadings (taking into impacts on ground water).

2) Identification of programs (including, as appropriate, non-regulatory or regulatory programs for enforcement, technical assistance, financial assistance, education, training, technology transfer, and demonstra- tion projects) to achieve implementation of the best management practices (Section 319(b)).

Section 319 did not establish a permit program or numeri- cal discharge requirements applicable to NPSs. The basic mechanism for controlling NPS pollution is a voluntary incentive-driven process to implement best management practices jurisdiction-wide, or on a watershed basis.

If management efforts are not sufficient to achieve and maintain water quality standards in a particular wa-

ter body, the Act provides for the States to impose more stringent requirements on the discharger, based on the approved Total Maximum Daily Load (TMDL) for that water body. The TMDL for a particular pollutant is the sum of the point source loadings, NPS loadings, background loadings and a margin of safety that allows for the water quality standards in a water body to be met. As appropriate, the implementation of the TMDL is to include both point sources and NPS measures and actions. Depending upon the pollutant, one of the most efficient ways to implement a TMDL is through what is known as the Watershed Approach. In short, the Watershed Approach is designed to effectively implement control and restoration actions that mitigate or eliminate specific problems not otherwise addressed by the Clean Water Act. Because watersheds are the hydrological units through which our surface waters flow, there are several linkages among water quality/ habitat conditions, problems, and solutions.

The Watershed Approach (Terrene, 1996) is flexible and geographically customized; consequently there is no single definition that encompasses all the programs and activities that it can include. Since it is an approach or a general strategy, it is best defined by describing the com- mon steps for successful watershed management that it contains. For the watershed approach to be successful, there needs to be active local involvement; opportunities

Animal Sector Size Thresholds (number of animals)

Small CAFOs² Medium CAFOs¹ Large CAFOs

Cattle or cow/calf pairs less than 300 300-999 1,000 or more

Nature dairy cattle less than 200 200-699 700 or more

Veal calves less than 300 300-999 1,000 or more

Swine (weighing over 55 pounds) less than 750 750-2,499 2,500 or more

Swine (weighing less than 55 pounds) less than 3,000 3,000-9,999 10,000 or more

Horses less than 150 150-499 500 or more

Sheep or lambs less than 3,000 3,000-9,999 10,000 or more

Turkeys less than 16,500 16,500-54,999 55,000 or more

Laying hens or broilers (liquid manure handling systems) less than 9,000 9,000-29,999 30,000 or more Chickens other than laying hens (other than liquid manure handling systems) less than 37,500 37,500-124,999 125,000 or more Laying hens (other than liquid manure handling systems) less than 25,000 25,000-81,999 82,000 or more Ducks (other than liquid manure handling systems) less than 10,000 10,000-29,999 30,000 or more

Ducks (liquid manure handling systems) less than 1,500 1,500-4,999 5,000 or more

1 Must also meet one or two “method of discharge” criteria to be defined as a CAFO or may be designated.

2 Never a CAFO by regulatory definition, but may be designated as a CAFO on a case-by case basis.

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for participation by all ‘stakeholders’ who may be inter- ested in, or affected by, decisions about the water resources; an active effort to engage the public to participate at all stages, throughout the watershed management process; and an effective project manager. The typical steps in watershed management are:

• Collecting and evaluating information to characterize the existing condition of the water resources in the watershed.

• Identifying key issues and problems associated with the area’s water resource.

• Setting goals for the watershed’s aquatic resources.

• Identifying alternative ways to meet watershed goals;

assessing the advantages and disadvantages of each;

selecting the optimal alternatives; and developing an action-oriented implementation plan

• Putting the plan in place; monitoring its implementation; and making adjustments as lessons are learned.

With a targeted geographic focus, watershed management enables an efficient concentration of scare resources that then builds upon the foundation of protection provided by the regulatory point source programs and undertakes additional actions (controls & restoration) to address specific problems in each watershed.

The four principles that provided the foundation for the Clean Lakes Program (U.S. EPA, 1993) have been embedded in many new initiatives (e.g.: Watershed Approach, community based environmental protection) and programs (e.g. NPS Program, National Estuary Program).

Safe Drinking Water Act

Many water bodies in the US are designated as public drinking water supplies. The Safe Drinking Water Act (SWDA) delegates the EPA authority to establish and enforce standards for protection of drinking water supplies.

Regulations addressing nitrates and turbidity have been promulgated by EPA under this authority. SDWA regulations are geared toward ensuring that the public receives safe drinking water. With this focus, SDWA regulations have concentrated on what remains in the water after it has undergone treatment and is ready for distribution to the general public, rather than on what pollutants and

in what quantity may be present prior to treatment. The 1996 SDWA amendments introduced provisions addressing source protection. Source Water Protection is a community-based approach to protecting sources of drinking water contamination. The approach is based on three principles’ commonly known as the ‘Three R’s’:

• ‘Restore the public’s right and responsibility to protect their drinking water and their health through community-based pollution prevention efforts and by that:

• Raise public confidence in their drinking water supply; and

• Reduce the costs of providing safe drinking water – essential to a community’s sustainable development’ (U.S. EPA, 1995).

Source water protection needs to be viewed as the SDWA counterpart to watershed management to achieve Clean Water Act objectives. EPA and the States are just begin- ning to put in place the guidance and programs to carry out the source water provisions of the 1996 amendments.

In Ohio they are developing joint watershed management plans and source water protection plans so the management of pollution and source water protection is a comprehensive approach for managing drinking water on a watershed basis.

Federal Insecticide, Fungicide and Rodenticide Act In October 1991, EPA published the Pesticides and Ground Water Strategy. This strategy provides a basis for Pesticides and Ground Water Management Plans (PMP).

Because of the diverse, localized nature of water quality, states are in a better position to manage pesticides to maintain groundwater quality than a national pesticide label program.

The state lead agency for pesticides has been designated by the EPA to coordinate the development and implementation of PMPs. PMPs are for the entire state and require input from and cooperation with other state, federal, and local agencies, and private organizations. There are two types of PMPs: generic and pesticide-specific.

Generic PMPs are voluntary. They are considered a blue- print for developing pesticide-specific PMPs. Generic PMPs have no regulatory authority. Pesticide-specific

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PMPs can only be required by developing and publish- ing federal regulations in the Federal Register. Pesticide- specific PMPs affect how a pesticide is used. If the EPA determines a pesticide requires more management, states are required to develop a pesticide-specific PMP or lose use of the pesticide in their state.

Both the generic and specific PMPs contain twelve components. They are:

1. The state’s philosophy and goals.

2. Roles and responsibilities of state agencies.

3. Legal authority.

4. Resources.

5. Basis for assessment and planning.

6. Monitoring.

7. Preventative actions.

8. Response to detections.

9. Enforcement mechanisms.

10. Public awareness and participation.

11. Information dissemination.

12. Records and reporting.

In June 1996, EPA published the proposed PMP rule in the Federal Register. The proposed rule lists atrazine, alachlor, metolachlor, simazine and cyanazine as the first five pesticides that will require PMPs. Due to the agree- ment to withdraw the cyanazine registration, cyanazine was dropped from the final rule. The final rule was issued in 2000.

Coastal Zone Management Act

The Coastal Nonpoint Pollution Control Program falls under Section 6217 of the Coastal Zone Act Reauthorization Amendments (CZARA). The Program is unique in that it establishes a set of management measures for states to use in controlling polluted runoff and is jointly administered by EPA and NOAA. The measures are designed to control runoff from six main sources including agriculture. These measures are backed by enforceable state policies and actions – state authorities that will ensure implementation of the program. All Great Lakes States (except Illinois) participating in the Coastal Zone Management Program are required to develop coastal nonpoint pollution control programs. The Coastal Nonpoint Program focuses on

pollution prevention, minimizing the creation of polluted runoff rather than cleaning up already contaminated water – a very difficult and expensive process. The program encourages pollution prevention efforts at a local level, particularly improvements to land use planning and zoning practices to protect coastal water quality.

Farm Bill

The United States Department of Agriculture (USDA) is the other leading federal agency with water clean-up programs in agricultural areas. USDA’s Natural Resources Conservation Service (NRCS) allocates technical and financial assistance to private landowners and farmers to implement conservation practices that can protect and/or improve water quality through five programs. The Environmental Quality Incentive Program (EQIP) pro- motes over 200 conservation practices with cost-sharing and incentive payments. The Conservation Stewardship Program (CSP) provides financial rewards to farmers and landowners for the environmental benefits their conservation efforts provide. The Wetland Reserve Program (WRP) provides technical and financial assistance to farmers and landowners to restore non-tidal wetlands.

WRP also provides funding to farmers to restore and/or enhance wetlands on agricultural lands for the length of 5-15 years or as a permanent easement. NRCS through the Wildlife Habitat Incentives Program (WHIP) provides technical and financial assistance to farmers to convert land or improve land to develop high-quality wildlife habitats on their property. The Farmland Protection Program (FPP) helps farmers and ranchers keep their land in agriculture through the purchase of other interests.

The remaining two USDA Programs are the Conservation Reserve Program (CRP) and the Conservation Reserve Enhancement Program (CREP) under the Farm Services Agency (FSA), which encourage farmers to convert en- vironmentally sensitive farmland to vegetative cover through annual rental payments.

With the exception of CREP and CSP, these USDA programs provide farmers and landowners with piecemeal assistance rather than integrated environmental management plans for their agricultural operations. Additionally, USDA is institutionally constrained by law, regulation and guidance to implement its programs from the perspective of individual producer on a discrete piece of land – so it

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means funds are not targeted and made available on a first come, first served basis for those farmers and landowners that meet the eligibility requirements. The majority funding is contained within the EQIP, WRP, CRP and CREP.

State and Local Efforts

As noted earlier, the key to effective water quality management, protection and restoration is the establishment of a management framework that combines State and local authorities and programs in a comprehensive approach. The management framework must include natural resource management programs besides the water quality programs mentioned earlier. The greatest strength and simultaneously the greatest weakness are local ordinances and zoning. Local support and involvement are some of the keys to effective water quality management.

Land use decisions are primarily made at the local level by a combination of elected, appointed, and volunteer of- ficials serving on land use commissions such as planning and zoning. The strength of the approach is locals solving their own problems for the good of the community, its weakness is one vote and it can all be undone. In agricultural areas, zoning is the principal tool locals use to manage the location of production facilities and animal feeding operations. The Terrene Institute (1995) provides excellent examples of what needs to be in an ordinance to make it work. Public education provides the foundation for local support and leadership in using zoning tools. In addition to zoning, some States and locals have:

• Nutrient management laws (including banning use of phosphorus).

• Abatement and corrective action orders for farming operations.

• Erosion and sediment controls (based soil loss toler- ance limits).

• More stringent pollutant discharge controls for per- mitted facilities (siting laws for animal operations).

• Nuisance and misdemeanour laws (location to schools, etc.).

Conclusions

The EPA and USDA Programs provide limited funding and direction to States and locals to manage, restore and protect water quality in agricultural areas. These largely voluntary programs do not go far enough in themselves to solve and prevent agricultural water quality problems.

Local leadership and programs are needed to ensure the resources are there to manage agricultural production while ensuring water quality.

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