Concentrated Animal Feeding Operation CAFO Regulations Update

1
Concentrated Animal Feeding Operation (CAFO)
Regulations - Update

• Meg Collins
• Colorado Livestock Association
• Landon Gates
• Colorado Farm Bureau
• Water Quality Forum
• November 20, 2006

2
Review of CAFO History

• 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, 24-hour storm event
  required by the CWA were not required to seek a
  permit. The program was described as
  self-implementing and complaint driven
• Due to lawsuits, EPA was compelled to update and
  enforce its CAFO regulations. The final
  regulations were issued in February 2003
• Colorado completed its CAFO rulemaking on April
  13, 2004, and the regulations became effective
  June 30, 2004.

3
Current Colorado CAFO Regulations

• Key Provisions
• 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

4
2nd Circuit Court Waterkeeper Decision

• Key Decisions That Required EPAs Response
• 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

5
2nd Circuit Court Waterkeeper Decision (Cont.)

• Key Decisions (Cont.)
• 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 CAFOs 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

6
EPAs Response to 2nd Circuit Waterkeeper
Decision

• 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 Courts 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

7
Industry Response to EPA Proposed CAFO Rule

• Duty to Apply
• 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.

8
Industry Response to EPAs Proposed CAFO Rule
(Cont.)

• Agricultural Stormwater Discharge Exemption
• The proposed rule affirms the Courts 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.

9
Industry Response to EPAs Proposed CAFO Rule

• Nutrient Management Plans
• Industry submitted comments that the EPA proposed
  NMP template needs to be simplified
• 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.

10
Impact of Waterkeeper EPAs Proposed Rule on
Colorado Producers

• 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.