BioCycle December 2011, Vol. 52, No. 12, p. 53
Biomass Energy Outlook
Mark Jenner

Seventeen years ago, I began my career as a newly minted, PhD manure economist. I was hired by a political agricultural organization as technical support for what was feared would be a heated legal battle for livestock producers’ right to produce and use manure. My tenure in political agriculture was bookended by manure – related revisions to the Clean Water Act’s effluent limitation guideline regulations in 1995 and release of the U.S. Environmental Protection Agency’s final Concentrated Animal Feeding Operation (CAFO) rule in 2003.
For reference, a CAFO has been defined by EPA as a livestock farm that is about the size of 1,000 adult cows. There are similar numbers for other species. The number of animals in a CAFO goes up as the animals get smaller. A chicken CAFO can have as many as 100,000 chickens.
The ink was barely dry on the 2003 regulations before multiple environmental groups and multiple farm groups began filing lawsuits against EPA. In a move that had to be a bit awkward, the multiple lawsuits entered in multiple federal court districts were consolidated into a single lawsuit with all those filing suits against EPA – the farm groups and the environmental groups – consolidated into one case.
In 2005 a court decision on The Waterkeeper Alliance et al vs. EPA was rendered, another final CAFO rule was issued, and another joint industry/environmental group lawsuit was filed against EPA, and settled. And now after 8 to 10 years of painfully, passionate national and state legal discussions about manure with millions of dollars invested by all parties, and the consumption of an ocean of antacids, almost nothing had changed. The court has determined that EPA did not have the legal authority to expect every CAFO to get a National Pollutant Discharge Elimination System (NPDES) permit as the agency had intended. It also determined that any CAFO found to be discharging would have even greater penalties levied against it than before the regulation revision process began in 1998.
In October 2011, the EPA published a new proposed CAFO rule. It is now proposing to compile data on manure production sites. EPA is asking for guidance on whether they should use existing Clean Water Act authority to mandate information collection on every CAFO, or whether it should just collect information on CAFOs that are operating in sensitive watersheds. The comment period ends December 20, 2011. Collecting data to better understand the industry in its regulatory sights seems like a reasonable place to start.

BENEFITS WITHOUT NEW RULES
CAFOs were defined in the enabling regulations of the 1973 Clean Water Act, so the current manure regulation has effectively existed for nearly 40 years. Ten years ago, EPA’s motivation to revise the CAFO regulations was based in part on the reality that only an estimated 30 percent of facilities that should have had federal NPDES permits had them. It did not matter that some 8,000 large livestock facilities had state-issued permits. While not federal NPDES permits, EPA delegated legal water quality oversight to the states and they responded. This always seemed like an issue of incomplete communication of expectations rather than a breach of good faith by states to respond.
Some current work is pulling me back into this manure management and oversight arena once again. So it is a great time to reflect on the amazing progress that has happened even without new regulations. Some would have happened naturally, but there is no doubt that the fear of complying with the 2003 regulations had a significant influence on the process. Here are a few of those”‘indirect” regulatory benefits.
Manure producers continue to breed animals and manage feed such that the same or fewer inputs are converted into greater quantities of meat and other animal products, and less of the unused inputs are discharged in manure.
Until about 1995, the agronomic (crop and soil science) world “knew” that all phosphorus (P) was bound rather completely in the soil. As recently as 15 years ago, water soluble P was unrecognized. Through the CAFO rule revision process, the world learned that P is actually not always bound in the soil and is transported in soluble forms.
We all learned together that when all the available and unavailable forms of P in livestock feed are not considered, P is overfed. Excreted manure has levels of P that are much higher than the corresponding levels of available manure nitrogen (N). Manure like this applied at agronomically correct N levels means that wildly high P levels were applied to crop fields. This has changed.
We learned that it is easier to reduce the unnecessary P in livestock feeds than to try to manage excessive P excreted in the manure.
All fertilizer prices have increased significantly making manure nutrients too valuable not to manage efficiently.
Consumers have expressed a willingness to pay more for organically and locally produced food and farmers have been happy to rise to those new demands and price premiums.
Anaerobic digesting and composting service industries are developing so that adding value through these biological processes is less risky than it has been in the past.
Manure producers and consumers are more fully utilizing all the inputs and available outputs with reduced emissions and discharges. The EPA continues to target the largest livestock production facilities, but these high profile operations are generally the ones exploring commercial scale composting and digestion technologies. Many indirect benefits from the unenforced “new” (circa 2003) CAFO regulations have emerged. In short, good manure management rules with or without new regulations.

Mark Jenner, PhD, and Biomass Rules, LLC, has joined the California Biomass Collaborative. Burning Bio News and other biomass information is available at www.biomassrules.com.