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.

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.

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.