TEXAS

• Texas suffers significant river pollution from dairy factory farm operations.
  
  
• Residents in the Texas Panhandle fear that rapidly expanding swine factory farms will degrade the groundwater and the air in their region.
  
  
• The state has severely restricted citizens' rights to block new factory farms or to prevent huge expansions in their localities.

For more than 30 years, large cattle feedlots have operated in West Texas, but since the 1980s the number of dairy, poultry and swine factory farms have increased substantially.

In 1988 there were 116 dairies in Erath County (the state's largest milk-producing county); by August 1994 there were 250 dairies in the area.¹ At that time, the Texas Water Commission estimated that new dairies were opening at a rate of about one a month, and most of them were large.²

Along the northern and western borders of the Texas Panhandle, the state permitted massive new swine operations in the mid-1990s. The largest of these facilities are still under construction. By 1999 Texas Farms, Inc. will have a quarter million pigs in confinement, while Premium Standard will hold over a million, according to their permit.³

Even in the state's traditionally large cattle sector, fewer, larger feedlots are producing more of the state's beef than ever before. In 1965, there were 178,000 cattle operations in Texas.⁴ By 1996, the number had dropped to 149,000.⁵ But the cattle inventory increased over this same period from 10 million to 14 million -- nearly 4 million more animals in 30,000 fewer operations.⁶ The largest cattle feedlots, primarily located in West Texas and the Panhandle, now confine as many as 80,000-100,000 head.⁷

Pollution Problems

Texas suffers significant water pollution from confined animal feeding operations. Waste from Erath County dairies has significantly degraded the Bosque River and the creeks of the Upper Bosque. 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.⁸ Over several years, TIAER conducted in-depth studies of in-stream water quality during storm events, and found "the dairy industry emerges as the major contributor to nutrient loading."⁹ In particular, TIAER scientists found elevated phosphorus levels specifically associated with fields where animal manure had been applied.¹⁰ Texas regulations restrict application of manure and lagoon effluent to the nitrogen requirements of the crops, which typically leads to substantial over-application of phosphorus.¹¹

The Bosque is the major tributary to Lake Waco, source of the city of Waco's drinking water. The City of Waco regularly tests for Cryptosporidium, a parasite from animal waste harmful to human health, and has regularly found it in test samples.¹²

Swine factory farm operations and cattle feed yards also represent a threat to the state's waters and wildlife. In Randall County, one of the counties with the greatest concentration of beef feedlots in the state, 44 cattle CAFOs are located in a watershed that is also home to Buffalo Lake National Wildlife Refuge. The Tierra Blanca Creek, a waterway in the Panhandle that is dried up during parts of the year, flows into Buffalo Lake National Wildlife Refuge. During the 1960s and 1970s several fish kills occurred at Buffalo Lake, within the Refuge. These kills were attributed to surface water runoff from cattle feedlots upstream. According to the U.S. Fish and Wildlife Service, poor water quality and reduction in flow in Tierra Blanca Creek resulted in the eventual disappearance of the lake. But the former lakebed still receives drainage from surrounding creeks intermittently and is in a 1,700-square mile watershed that supports endangered species, such as the Bald eagle. "If a storm occurs in this watershed that exceeds current wastewater retention system designs, it would be expected that the stream would receive inflow of untreated wastewater from multiple CAFOs. In turn, based on the language of the proposed general permit, the National Wildlife Refuge could possibly receive up to 22,000,000 gallons of raw, untreated wastewater in a given 24-hour period," the U.S. Fish and Wildlife Service has stated.¹³

Cattle feedlots and pig farms are frequently located 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.¹⁴ The land throughout the Panhandle is also perforated with incompletely plugged wells, test holes, oil and gas wells, and other borings. During rainstorms or when playa lakes or lagoons overflow, water will drain directly through these holes into the Ogallala aquifer, carrying any polluted animal waste along with it. Residents throughout the Panhandle believe a significant threat to the aquifer is posed by these man-made holes in combination with seepage from the playa lakes, which can act like giant puddles to receive polluted wastewater from overflowing manure lagoons and feedlots. For years, farmers in the region used playa lakes as retention ponds for wastewater runoff. The state still allows farmers to use the playa lakes for this purpose if they started doing this prior to September 1, 1993.¹⁵ Of particular concern to local residents are the state's design standards for CAFO lagoons allowing clay liners, which can crack after long droughts, and the lack of leak detection and ground water monitoring.¹⁶

People living near expanding swine- and cattle-feeding operations face significant air pollution as well. Cattle in feedlots stand on piles of manure. In the hot, dry West Texas summer evenings, as the cattle rise and move in their pens, plumes of manure dust lift from under their hooves and travel miles in the wind.¹⁷ Studies have found particulate levels significantly above both state and federal Environmental Protection Agency (EPA) standards around cattle feedlots.¹⁸ A number of people who live near feed yards have reported health problems related to the dust, including excessive allergic reactions and asthma. In at least one case, a family moved from its homestead of more than 100 years after a two-year old developed severe respiratory problems, which led to hospitalization.¹⁹

In addition to feedlot dust, the odors from cattle, poultry and swine operations can sometimes be overwhelming. Animal manure odor is composed, among other things, of ammonia and sulfides (including hydrogen sulfide)²⁰ -- and swine manure odor is a combination of at least 121 different compounds.²¹ Swine odors emanate from barns, anaerobic waste lagoons, and wastewater during field applications.²² It stinks; even those in the industry agree with that.²³ Although high levels of manure dust or organic compounds from manure gasses may affect people's health and well being,²⁴ the Texas Natural Resource Conservation Commission (TNRCC) has no specific regulations related to odor control, except that no CAFO can create a nuisance.²⁵ Nor do TNRCC rules address the concern expressed by many adjacent landowners that the smell and flies significantly devalue their property.

Regulatory Climate

Prior to 1987, CAFOs in Texas did not have to get a permit from the Texas Water Commission or the Air Control Board (now combined into the Texas Natural Resource Conservation Commission). In 1987, due to the developing pollution problems on the Bosque River, the Water Commission drafted CAFO rules that required all CAFOs (above 1,000 head of cattle, 250 dairy cows, or 2,500 pigs) to get a permit.²⁶ Adjacent and downstream landowners were given the opportunity to contest the permit or require additional environmental protections before it was awarded.

Because the state allowed downstream and adjacent neighbors an opportunity for a formal contested case hearing, many new permits in Erath County were denied or significantly modified to protect the environment, according to Stuart Henry, an Austin attorney representing many of the citizens contesting permits. After complaints from CAFO operators and others about the burdensome hearing process, however, the legislature passed a bill to limit access to the contested case process at TNRCC.²⁷ Today, TNRCC staff must determine in advance if a person's petition has "technical merit." In practice, this means citizens must present all the evidence they need to prove they can win their case, including a demonstration of the harm that might result from the permit, just to gain standing as a party for a hearing.²⁸ Although many people filed protests against granting Texas Farms, Inc. a swine permit and against granting Koch Beef a feed lot expansion permit, for example, none of the petitions were deemed to have "technical merit."²⁹ Permits renewals, as opposed to new permits or permits for expanded operations, may be approved without opportunity for public hearing or comment unless there has been a "formal, major enforcement action."³⁰

Currently, both TNRCC and the EPA Region Six have a general permit,³¹ which imposes few significant controls on facilities that do not discharge into surface waters.³² General permits tend to be one-size-fits-all permits no matter what special environmental problems a particular factory farm might pose. For example, the Texas state performance criteria for CAFOs do not address the cumulative environmental impact of new or expanded CAFOs in areas that already contain a large number of confined animal operations.³³ The new state rule requires no water quality monitoring to ensure that polluted water is not entering the aquifer through man-made holes, playa lakes or manure lagoons.³⁴ The rules establish a quarter-mile buffer zone around new facilities of all types and sizes to protect homes and surrounding landowners from odors, but existing CAFOs may substitute an odor control plan.³⁵ While the Region Six general permit has been operating in Texas for many years, EPA has recently delegated authority to Texas to operate its own NPDES program for most CAFOs.³⁶

Local Control

Texans have few legal rights with respect to existing CAFOs. The Texas Right to Farm Act prevents neighbors from filing a nuisance suit against a CAFO once it has been established for one year or more.³⁷ Counties and cities do have the right to enforce air and water standards and the right to sue for violations within their jurisdictions. But they do not have the right to prevent a CAFO from being established within their jurisdiction. TNRCC has exclusive permitting jurisdiction over the whole state.³⁸

Primary interviewees for this chapter:

Stuart Henry
4006 Speedway
Austin, TX 78751
Phone: 512-454-3050
Fax: 512-454-6231
email: henrylaw@io.com

Kathy Mitchell
Consumers Union
1300 Guadaloupe, Suite 100
Austin, TX 78701
Phone: 512-477-4431
Fax: 512-477-8934
e-mail: mitcka@consumer.org

Notes

1. Texas Institute for Applied Environmental Research, Dairy Map of Erath County Area (August 1994).

2. Texas Water Commission, Non-Point Source Water Pollution Management Report for the State of Texas (August 1988), p. 226.

3. TNRCC Air and Water Quality Permit-by-rule to Operate Concentrated Animal Feeding Operation, No. 03876, Texas Farms, Inc. (February 12, 1996). Permit for a swine feeding facility to confine a maximum of 249,600 head with 26 lagoon systems. TNRCC Air and Water Quality Permit-by-Rule to Operate Concentrated Animal Feeding Operation, No. 03444, Premium Standard Farms Inc. (July 11, 1997). Permit for a swine facility to confine a maximum of 220,000 head using three above ground metal effluent holding tanks. TNRCC Permit to Dispose of Waste, No. 03755, Premium Standard Farms Inc. (December 12, 1994). Permit for swine operation which will have a maximum of 925,000 total head of sows, boars, baby pigs, nursery, finish and replacement stock using 25 anaerobic digesters and 25 lagoons.

4. Texas Agricultural Statistics Service, "1867-1990 Texas Historic Livestock Statistics," p. 3.

5. Texas Agricultural Statistics Service, "Texas Agricultural Statistics, 1996" (September 1997), p. 29.

6. Texas Agriculture Statistics Service, "Texas Agricultural Statistics, 1996" (September 1997), p. 30; "1867-1990 Texas Historic Livestock Statistics," p. 7.

7. Texas Natural Resource Conservation Commission (TNRCC) Permit to Dispose of Waste No. 01378, Cactus Feeders, Inc. (September 29, 1995), Permit for 88,710 head feedlot; TNRCC Permit to Dispose of Waste No. 01551, Koch Beef Co., June 20, 1997, Permit for 80,000 head feedlot; TNRCC Permit to Dispose of Waste No. 01673, XIT Feeders (June 26, 1991), Permit for 80,000 head feedlot; TNRCC Amendment to Permit to Dispose of Waste No. 01400, Livestock Investors, Inc. (September 29, 1995), Permit expanded from 70,000 to 100,000 head; TNRCC Permit to Dispose of Waste No. 01770, Coronodo Feeders (March 31, 1997), Permit for 80,000 head.

8. Bosque River Advisory Committee, Briefing Papers, Fecal Coliform, Their Presence and Meaning, Stephenville, Texas (January 23, 1996), p. D-3-5.

9. Anne McFarland and Larry Hauck, Livestock and the Environment: Scientific Underpinnings for Policy Analysis, Report No. 1, Texas Institute for Applied Environmental Research, Tarleton State University (September 1995).

10. Anne McFarland and Larry Hauck, Livestock and the Environment: A National Pilot Project, Texas Institute for Applied Environmental Research, Tarleton State University (June 1997), pp. 68-69.

11. Anne McFarland and Larry Hauck, Livestock and the Environment: A National Pilot Project, Texas Institute for Applied Environmental Research, Tarleton State University (June 1997), p. 70.

12. Provided by City of Waco, Texas; produced by Analytical Services, Inc., ICR Girdia and Cryptosporidium Analytical Report for the Reporting Period: August 11, 1997 through October 15, 1998.

13. Letter from Robert Short, U.S. Fish and Wildlife Service to Texas Natural Resource Conservation Commission (April 10, 1998).

14. J.M. Sweeten, "Groundwater Quality Near Two Cattle Feedlots in Texas High Plain: A Case Study," ASAE, Vol. 11, No. 6 (November 1995), p. 845.

15. CAFOs that drained wastewater into playa lakes before September 1, 1993, may continue to discharge their wastewater into the playa lakes under state law. New CAFOs, which were not discharging before September 1, 1993 may not discharge wastewater directly into playa lakes without a special permit. Texas Water Code, Sec. 26.048.

16. David Hale, Mayor, City of Perryton, "Comments Regarding Texas Natural Resource Conservation Commission's (TNRCC) Proposed General Permit, and Comments to The Environmental Regulations Committee" (April 10, 1998); Letter from John J. Vay, representing landowners in Ochiltree and Johnson Counties, to TNRCC, related to CAFO Rules/General Permit (April 13, 1998).

17. Texas Natural Resource Conservation Commission (TNRCC), Complaints filed by residents living 3 miles from Palo Duro Feedyards in Hansford County. Also, TNRCC Permit No. 01551, letters of protest (related to dust as well as flies and odor) to TNRCC against expansion of Koch Beef Company (February and March 1997).

18. John M. Sweeten, et al., "Dust Emissions in Cattle Feedlots," Veterinary Clinics of North America: Food Animal Practice (November 1998), Vol. 4, No. 3, p. 577; J.W. Algeo, et al., "Feedlot Air, Water and Soil Analysis. Bulletin D: How to Control Feedlot Pollution," California Feeders Association, Bakersville, California (July 1972).

19. Letter from Simon and Elizabeth Jimenez to Texas Natural Resource Conservation Commission related to Koch Beef (March 10, 1997); Correspondence to Rick Costa, Air Program Manager, TNRCC, from S. Shawn Stephens on behalf of Mr. David Bergin (May 11, 1995).

20. J.M. Sweeten, "Odor Control from Poultry Manure Composting Plant using a Soil Filter," American Society of Agricultural Engineers (July 1991), Vol. 7(4) , p. 439.

21. John M. Sweeten, "Odor Abatement: Progress and Concerns," Paper for the National Poultry Waste Management Symposium, Harrisburg, PA (1996).

22. Ronald Miner, "A Review of the Literature on the Nature and Control of Odors from Pork Production Facilities," for the Odor Subcommitee of the Environmental Committee of the National Pork Producers Council (September 1, 1995).

23. Kay Ledbetter, "Swine Raisers Employ Numerous Odor Eaters, With Varying Degrees of Success," Amarillo Globe News (May 28, 1998).

24. Ronald Miner, "A Review of the Literature on the Nature and Control of Odors from Pork Production Facilities," for the Odor Subcommitee of the Environmental Committee of the National Pork Producers Council (September 1, 1995), p. 11; S.S. Schiffman, et al., "The Effect of Environmental Odors Emanating from Commercial Swine Operations on the Mood of Nearby Residents (Review)," Brain Research Bulletin (1995), vol. 37(4), pp. 369-375.

25. 30 Texas Administrative Code (TAC), Sub K, section 321.181(c); 30 TAC, Sub B, section 321.33(e).

26. 30 Texas Administrative Code, Sub B, section 321.

27. SB 1546, 74th Texas Legislature, effective September 1, 1995.

28. Consumers Union, Right to Know/Right to Act: An Analysis of TNRCC Rules and Practice, Austin, Texas (February 1997), p. 10.

29. Texas Natural Resource Conservation Commission (TNRCC) Air and Water Quality Permit by Rule No. 03876, Executive Technical Summary (February 12, 1996); TNRCC Permit No. 01551, TNRCC letter to protestants (June 20, 1997).

30. Texas Natural Resource Conservation Commission, Chapter 321, Control of Certain Activities by Rule, Rule Log No. 97152-321-WT, Analysis of Testimony and Comments, Sec. 321.35.

31. Texas Natural Resource Conservation Commission (TNRCC), Chapter 321, Control of Certain Activities by Rule, Rule Log No. 97152-321-WT. "The commission believes its resources would be better spent conducting full individual permitting procedures mostly for those facilities that regularly discharge waste into surface waters, and thereby have a greater potential for pollution, while regulating by uniform rule or general permit most facilities that are not allowed to discharge into a stream or water body unless there is a rainfall greater than a 25-year, 24-hour event." TNRCC issues permits "by rule," which are substantially similar to a general permit.

32. CAFOs that drained wastewater into playa lakes before September 1, 1993, may continue to discharge their wastewater into the playa lakes under state law. New CAFOs, which were not discharging before September 1, 1993 may not discharge wastewater directly into playa lakes without a special permit. Texas Water Code, Sec. 26.048.

33. Texas Natural Resource Conservation Commission, Chapter 321, Control of Certain Activities by Rule, Rule Log No. 97152-321-WT, Analysis of Testimony and Comments, Sec. 321.31, Response to U.S. Fish and Wildlife Service. The Commission notes that the Dairy Outreach Program was created to respond to the cumulative effects of dairies in the Bosque and Lake Fork watersheds, even though the regulation does not address cumulative effects.

34. Texas Natural Resource Conservation Commission, Chapter 321, Control of Certain Activities by Rule, Rule Log No. 97152-321-WT, Analysis of Testimony and Comments, Sec. 321.35.

35. Texas Natural Resource Conservation Commission, Chapter 321, Control of Certain Activities by Rule, Rule Log No. 97152-321-WT, Analysis of Testimony and Comments, Sec. 321.46.

36. EPA will retain authority for those CAFOs that discharge into Playa Lakes and were not grandfathered out of the program by state law. Texas Water Code, Sec. 26.048.

37. Texas Agriculture Code, Title 8, Chapter 251, Effect of Nuisance Actions and Governmental Requirements on Preexisting Agricultural Operations.

38. Texas Water Code, sec. 26.121.