Transcript Concentrated Animal Feeding Operation (CAFO) Regulations

Concentrated Animal Feeding Operation (CAFO)
Regulations - Update
Meg Collins
Colorado Livestock Association
&
Landon Gates
Colorado Farm Bureau
Water Quality Forum
November 20, 2006
Review of CAFO History
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The 1972 Clean Water Act designated CAFOs as point sources and EPA
promulgated regulations in 1976 designed to minimize the impacts of
CAFO activities on surface waters;
In Colorado, CAFOs with sufficient storage to contain the “25-year, 24hour storm event” required by the CWA were not required to seek a
permit. The program was described as “self-implementing” and
“complaint driven”;
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Due to lawsuits, EPA was compelled to update and enforce its CAFO
regulations. The final regulations were issued in February 2003;
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Colorado completed its CAFO rulemaking on April 13, 2004, and the
regulations became effective June 30, 2004.
Current
Colorado CAFO Regulations
Key Provisions:
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Operators are required to have adequate storage to contain a 25-year,
24-hour storm or chronic storm event (10 day/10year), whichever is
greater;
Producers were to have available on-site, Nutrient Management Plans
that describe appropriate process wastewater and manure
management practices for the production area and land application
sites, mortality management, transfer of manure to third parties and
recordkeeping;
Colorado producers must also comply with strict groundwater
protection requirements contained in Regulation 81 which applies to
CAFO impoundments. These impoundments must be designed and
constructed to meet a “no seepage” seepage rate of 10-6 or 1/32” per
day;
2nd Circuit Court Waterkeeper Decision
Key Decisions That Required EPA’s Response:
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The 2nd Circuit Court decision, issued in February 2005, had a “little
something for everyone” who had challenged the final federal CAFO
regs;
The Court struck the “duty to apply” permit requirement in the federal
rule on the basis that the CWA applied to “actual” discharges not a
“potential to discharge”;
The Court agreed that Nutrient Management Plans (NMP) are Effluent
Limitation Guidelines (ELG) and are required to be part of the permit,
required to be reviewed by the permitting authority and available for
public review;
2nd Circuit Court “Waterkeeper” Decision (Cont.)
Key Decisions (Cont.)
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The Court rejected arguments that discharges from land application
areas under the control of a CAFO are non-point source discharges and
ruled that any discharge from land application areas under a CAFO’s
control are point source discharges , except for agriculture stormwater
discharges;
The Court upheld the validity of the “ agricultural stormwater
exemption” as long as an operator used a site-specific nutrient
management plan for land application areas under the control of the
CAFO. Any discharge from a land application area as a result of a
precipitation event does not need a CAFO permit, if there is an NMP;
EPA’s Response to 2nd Circuit “Waterkeeper” Decision
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As deadlines under the prior federal CAFO rule were looming, in
February 2006, EPA published a “mini rule” that changed the 2006
permit application and NMP deadlines to July 31, 2007;
On June 30, 2006, EPA published the Proposed CAFO rule reflecting the
changes made by the 2nd Circuit Court’s Waterkeeper decision;
August 29, 2006, was the deadline for public comment on the
proposed Rule;
The CLA & the Colorado Farm Bureau individually and through their
national organizations focused their comments on the following areas
of concern in the Proposed Rule:
Industry Response to EPA Proposed CAFO Rule
Duty to Apply:
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The Court decision made clear that “potential to discharge” is not
consistent with the CWA and not a valid basis for requiring a CAFO
permit.
The Proposed Rule requires that CAFOs that “discharge or propose to
discharge” must seek permit coverage.
Industry has commented that the “propose to discharge” language is
“potential to discharge” in a different disguise and contradicts the
Waterkeeper decision.
Industry does recognize that a permit protects CAFOs from federal
liability in the event of an unforeseen discharge.
Industry Response to EPA’s Proposed CAFO Rule (Cont.)
Agricultural Stormwater Discharge Exemption:
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The proposed rule affirms the Court’s decision that as long as the CAFO
uses a site-specific NMP for a land application area under its control,
any discharge due to a precipitation event is not subject to permitting
requirements;
Industry comments support this interpretation and recommend that
CAFOs that choose not to apply for a permit need to document their
protocols for soil and manure testing and for land application at proper
agronomic rates, in order to qualify for the exemption.
Industry Response to EPA’s Proposed CAFO Rule
Nutrient Management Plans:
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Industry submitted comments that the EPA proposed NMP template
needs to be simplified;
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the NMP must be flexible in order to accommodate changes in cropping
or other decisions;
the NMP should not duplicate engineering requirements that are
contained in the permit; and
a firm deadline for review of the permit and NMP by the permitting
authority and public review is necessary for the success of the
program.
Impact of “Waterkeeper” & EPA’s Proposed Rule on
Colorado Producers
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Created further delays for the 40+ operators who have submitted
CAFO permit applications since Colorado adopted its regulations in
2004;
Compelled CDPHE to conduct a rulemaking completed in October 2006
to adopt the July 31, 2007, deadline in the EPA “mini-rule” for permit
application and NMPs, in order for the state to move forward on
pending CAFO permit applications;
EPA is expected to publish the final CAFO rule in June of 2007 and the
current Colorado regulations will need to be conformed to the final
rule.