Here are the high points of the Environmental Protection Agency's 68-page final confined animal feeding operation (CAFO) rules.

In October, the U.S. Environmental Protection Agency (EPA) issued rules in what many hope will be the last chapter for the overhaul of federal rules regulating concentrated animal feeding operations (CAFOs). However, as has been the case for over 10 years, there may be more to come if the courts and/or the new administration get involved.

To fully understand this final rule, it is important to take a look at how we got here.

In February 1998, President Bill Clinton released a Clean Water Action Plan, which included a directive that EPA and USDA develop a unified national strategy to minimize the water quality and public health impacts of animal feeding operations. This resulted in a National Unified Strategy in March 1999, a draft rule in December 2001 and a final rule issued in February 2003. That final rule, however, turned out to be not so final.

Both environmental and farm groups filed lawsuits challenging the rule, and in February 2005, a federal court ruled that significant portions of the rule were invalid under the Clean Water Act. The EPA went back to the drawing board and in June 2006, issued a proposed rule to address the court's ruling. In response to concerns about the proposed rule, EPA issued a second proposed rule for public comment in March 2008.

Both EPA proposals have now been finalized, consolidated and published in the Nov. 20, 2008 Federal Register. The final rule and other information from EPA can be found at http://cfpub.epa.gov/npdes/afo/cafofinalrule.cfm.

The final EPA CAFO rule consists of 68 pages with explanations and actual rule provisions. The key provisions include:

  • NPDES Permit Requirements

    A CAFO is, in general, an animal feeding operation that has more than a specified number of livestock. For swine, that number is 2,500 head weighing more than 55 lb. or more than 10,000 swine weighing 55 lb. or less.

    The cornerstone of federal EPA regulation of CAFOs is the National Pollution Discharge Elimination System (NPDES) permit. This is a five-year permit that basically allows the CAFO to operate as designed by a professional engineer. The CAFO must be designed, operated and maintained to not discharge manure to a continuously flowing creek, river, etc. (technically, surface waters that qualify as waters of the United States) from any precipitation event that is less than the equivalent of a 25-year, 24-hour storm event for the area. If a storm greater than that occurs and a CAFO with an NPDES discharges manure as a result of the storm, there is no violation of the permit.

    A CAFO must obtain an NPDES permit if the CAFO “discharges or proposes to discharge.” Most swine operations of CAFO size are confinement systems where the animals are housed totally under roof and the manure is either stored in covered manure storage (under buildings) or in totally contained, outside manure storage such as lagoons or other outside storage structures.

    Accordingly, most swine CAFOs do not discharge from the manure storage structures. The final rule goes a step further and requires a discharge permit (NPDES permit) if a CAFO “proposes to discharge.” The final rule states that a CAFO proposes to discharge “if it is designed, constructed, operated, or maintained such that a discharge will occur.”

    In the introduction to the final rule, the EPA states that a CAFO should conduct an objective assessment to determine whether the CAFO “due to its individual attributes, discharges or proposes to discharge.” Key factors the EPA suggests a CAFO should consider in conducting this assessment are:

    • Proximity to surface waters and whether the CAFO is upslope from those waters;

    • Climactic conditions;

    • Type, capacity and the quality of construction of the manure storage system;

    • Whether there are built-in safeguards and;

    • What standard operating and maintenance procedures are in place.

  • A discharge also includes discharges from land application of manure. However, an NPDES permit is not required for any discharge from land application if the discharge is an “agricultural stormwater discharge.”

    To qualify as an agricultural stormwater discharge, a CAFO must apply manure in compliance with a site-specific nutrient management plan. Because a CAFO using this exemption does not have an NPDES permit, this plan does not need to be submitted to EPA or the state, but must be kept along with records filed on-site or at a nearby office, or be readily available upon request.

    A key point of the federal requirements is that there is no legal requirement to have an NPDES permit unless a CAFO discharges. However, without an NPDES permit, a CAFO cannot have any discharge of manure to surface waters. With an NPDES permit, a CAFO designed, operated and maintained to control any runoff from a 25-year, 24-hour storm is allowed to discharge as a result of storms that exceed that level.

    A critical question for pork producers with confinement operations is whether an NPDES permit is needed if there has been an accidental discharge, particularly from manure handling or land application.

    The EPA indicates that if the cause of an accidental discharge in the past has been changed or corrected, the CAFO would not be considered to discharge or propose to discharge and an NPDES permit would not be required due to the accidental discharge.

  • No Discharge Certification Option to an NPDES Permit

    The final rule provides a voluntary option to CAFOs that do not believe they need an NPDES permit but want some protection from a penalty for failure to have an NPDES permit if a discharge occurs.

    A CAFO without an NPDES permit may certify that it does not discharge or propose to discharge if it shows through a technical evaluation that it meets design, construction, operation and maintenance requirements for the production and manure storage areas. The rule sets out separate requirements for open manure storage structures and other parts of the operation's production area. EPA plans to work with states to develop a recordkeeping checklist for this certification.

    A CAFO owner/operator using this voluntary certification must have a nutrient management plan and must submit a signed certification statement to the state. A CAFO using the no- discharge certification option that later has a discharge will be subject to penalties for the discharge, but will not be subject to penalties for the failure to have an NPDES permit.

    While this protection may be worthwhile to some CAFOs, the portion of the CAFO rule that establishes a separate penalty for not having an NPDES permit if a discharge occurs is being challenged in court. The court challenge is based on the argument that if there is a discharge without an NPDES permit, there can be a penalty for the discharge but there cannot be a separate penalty for not having an NPDES permit.

    The final rule also provides that a CAFO that has a discharge without an NPDES permit, and that has not used the voluntary certification option, has the burden of proof “to establish that it did not propose to discharge prior to the discharge.”

    At first glance, this provision may not seem too important. However, this can be critical in a state or EPA enforcement action for penalties for a discharge. Normally, the state or EPA has the burden of proof. Again, while this protection offered by voluntary certification may be worthwhile to some, this portion of the rule switching the burden of proof may also be challenged.

    Finally, the determination of whether a discharge has occurred or will occur is a key issue. EPA has taken the position that past discharges from a CAFO may be proven using computer modeling. This approach was challenged by a livestock producer in a federal administrative appeal, but the EPA dismissed the claim following a hearing. In that case, EPA continues to allege the producer is subject to penalty for failing to have an NPDES permit. A decision in this appeal is expected in early 2009.

  • Nutrient Management Plans

    A CAFO with an NPDES permit must have a nutrient management plan (NMP). The final rule mandates that the NMP address rates of manure application using one of two approaches — the linear or the narrative approach.

  • In short, the linear approach expresses field-specific maximum rates of application in terms of the amount of nitrogen and phosphorus from manure allowed to be applied. The narrative rate approach allows application rates to be determined based on the total amount of nutrients combined with a specific, quantitative method for calculating the amount of manure allowed to be land applied.

    Without going into more specifics, the narrative approach allows the most flexibility and appears to most closely resemble many state manure nutrient management plan regulations.

    If there is a substantial change to an NMP, the NPDES permit must be modified and the EPA or state must notify the public and make the proposed changes available for public comment. Substantial changes include, but are not limited to, the addition of new land for manure application and the addition of any new crop.

    CAFOs with general permits (in essence, an NPDES permit adopted by a state that has general terms that apply to many CAFOs with similar manure management systems) must include an NMP for review and public comment when the CAFO elects to be covered by the general permit.

  • CAFOs with Existing NPDES Permits

    CAFOs in some states, such as Iowa, were required to have NPDES permits in place before this final rule. These operations will not be required to comply with the new requirements in the final CAFO rule until their existing NPDES permits expire.

Consult Your Advisor

In summary, the requirements of the final CAFO rule are lengthy, detailed and will vary from state to state. This article is intended as a general overview only, and producers must work with their advisors to determine whether an NPDES permit is required for their operation or whether they should participate in the voluntary no-discharge certification option.