A new rule for confined animal feeding operations (CAFOs) requires only operations that discharge or “propose to discharge” water from their facilities to apply for National Pollutant Discharge Elimination System (NPDES) permits. However, according to Allison Wiedeman of the U.S. Environmental Protection Agency (EPA), applying for the NPDES permit – which all CAFOs were formerly required to do – remains the least risky way for CAFO operators to make sure they don’t run afoul of clean water regulations.

“We’re understanding more than ever that the advantage of getting a permit is if they’re in compliance with that permit, they have an allowable discharge,” says Wiedeman, who is Branch Chief of the Rural Branch of EPA’s Water Permits Division in Washington, DC. “If they do have a discharge without a permit, they have a high risk of enforcement or citizen lawsuits.”

Two Major Changes

The new rule, released December 2008, updates EPA’s 2003 CAFO rule in response to the Second Circuit Court’s decision in the Waterkeeper Alliance et. al. v EPA lawsuit. Click here for a summary of the decision. In the decision, the court upheld EPA’s authority to regulate discharges from the application of manure, and inspired changes in the NPDES permitting process.

Wiedeman points out that the new CAFO rule contains two major changes:

• Duty to apply – defines who must apply for an NPDES permit and who could instead seek a no-discharge certification
• Nutrient management plans are now considered part of the NPDES permit, and must be submitted during the application process.

Under the 2003 rule, all CAFOs were required to apply for an NPDES permit, and operators were simply required to draft nutrient management plans and keep them on hand in case regulators asked to see them.

The new rule also offers some CAFO operators an opportunity to receive a no-discharge certification.

Propose to Discharge

Unlike the 2003 rule, which categorically required any CAFO with the “potential to discharge” to apply for an NPDES permit, the new rule calls for a case-by-case evaluation by the CAFO owner or operator as to whether the CAFO “discharges or proposes to discharge” from its production area or land application area based on “actual design, construction, operation, and maintenance.”

EPA defines the rule’s preamble that “propose to discharge” is a factor of design, construction, operation and maintenance.

An operator can petition for a no-discharge certification, which requires an evaluation of the CAFO’s storage facility using the Animal Waste Management (AWM) model and the Soil Plant Air Water (SPAW) Field and Pond Hydrology Tool, or equivalent analytic tools. The evaluation must incorporate 100 years of data to show that the facility is designed, built and managed to absolutely prevent discharge in storage, during storms and after land application.

Wiedeman points out that accidents and other occasional discharges are not uncommon in the livestock industry, but they are illegal unless they are covered by an NPDES permit – a no-discharge certification provides only partial legal cover or protection.

Nutrient Management Plans

Preventing discharges of nutrients, fecal coliform and other contents of manure encompasses more than the capacity of lagoons and dikes. It’s about soils, hydrology and management, too. Nutrient management plans address those other factors, which Wiedeman says was not a point lost in the court ruling.

 “The court said the nutrient management plan is integral to operations of the CAFO,” Wiedeman explains. “The nutrient management plan should be part of the permit, and certain parts of the nutrient management plan should be enforceable parts of the permit. Though it adds significantly to the amount of paperwork regulators now need to review, requiring CAFO operators to include their nutrient management plans in their permit applications won’t make much of a practical difference on the producer level, Wiedeman adds. The 2003 rule required CAFO operators to draft plans, so the workload remains the same for producers.

The USDA Natural Resources Conservation Service, scientists from Purdue University and EPA worked closely together to fold EPA’s nutrient management plan template into Manure Management Planner software, which should streamline the process of developing an acceptable nutrient management plan.

Some operators express concern about the clause in the new rule that ensures that the process must “provide the public with an opportunity for meaningful review and comments on these plans.” But Wiedeman says experience in other industries regulated under the NPDES permit process has not indicated that the public has pored through applications or used management plans as a springboard for action against the operation. In fact, not having an NPDES permit and experiencing an accidental discharge lays far greater odds that a CAFO would encounter a citizen lawsuit, she says.

CAFO operators who do not apply for an NPDES permit must still have some type of nutrient management plan available for regulators.

Practices and Limitations

Under the final rule, it may not be enough for new CAFOs to build containment facilities modeled on 100 years’ worth of data – they also may be required to adopt practices classified in the Clean Water Act effluent guidelines, which can come under an array of acronyms.

While writing the new rule, EPA explored best conventional control technology, or BCT, for fecal coliform, but determined that the BPT defined in the 2003 rule was still the most effective, cost-reasonable technology available.

Like BCT, best available technology economically achievable (BAT) takes into account the cost as well as the availability, and effectiveness of the treatments. BCT and BAT for fecal coliform remain the same under the new rule as they were under the 2003 rule.

However, in some areas, water quality-based effluent limitations (WQBELs) may be required in permits. WQBELs may be established without consideration of cost or what technologies are available. The new rule also states that state water quality limitations, if more stringent than federal standards, must take precedence.

“I do not expect this to be a large problem,” says Wiedeman. “It may be locally for some operators. It’s a legal requirement. It’s not something that so far has been cited as a difficulty by the industry.”

The important thing to note about the new CAFO rule, says Wiedeman, is that “it doesn’t change the priorities, it changes the process, and it changes the amount of time the permit writer has to put into the permit review process.”

FOR MORE INFORMATION

EPA’s New CAFO Rule Q&A:  http://www.epa.gov/npdes/pubs/cafo_final_rule2008_qa.pd

Complete Text of the New Rule:  http://www.epa.gov/npdes/regulations/cafo_final_rule_preamble2008.pdf

Waterkeeper Alliance v EPA Summary:   http://www.epa.gov/npdes/pubs/summary_court_decision.pdf