The changing of the guard in July

Darren Olsen, Editor, Ag Nutrient Management

On July 31st, several of the provisions of the current Clean Water Act – Concentrated Animal Feeding Operation (CAFO) rules will change. Most of these changes came as a result of a lawsuit in 2005 where a federal appeals court struck down several of the provisions of the original law. Many have since been scheduled to be replaced or updated.

Since several of these changes will come into effect soon, this article will take a closer look at those provisions that will be affected and how they might impact your operation. Until then, the current law is still in effect, so compliance is still required. In addition, many regulatory agencies will be using the next several months as a transition period, so questions about overall compliance may still be forthcoming. This is not intended to be a complete rehash of the entire set of rules, so I suggest your operation be in contact with your state regulatory agency to get the details you might need to consider.

What were the problems?
The appeals court found two main areas that were flawed in the 2003 Environmental Protection Agency (EPA) rules. First, the court found the EPA did not have the authority to regulate all CAFOs based on the assumption they needed to apply for a permit “based on the potential to discharge.” The court found the requirement that all CAFOs with a potential to discharge should be vacated.

The second finding has to deal with nutrient management plans (NMP). In its ruling, the court stated the issuance of permits without public review of NMPs was in violation of the law. This included the practices and treatment systems involved with each operation.

What will be changing?
With these findings, the EPA has made the following changes to the rules:

• The requirement that all CAFOs with a potential to discharge has been vacated and replaced with the rule that only those CAFOs that either have a discharge or propose to discharge must obtain a permit. (Keep in mind no CAFO is allowed any discharge at any time unless it is considered agricultural stormwater.)

• The NMP must now be reviewed by the permit authority and the public, and a complete NMP must be included in the NPDES permit.

Although it looks like a win for producers, the new rules require stricter nutrient planning but offer broader protections to operations who follow those plans, especially if they have been approved by the permit authority and undergone public review. NMPs are now becoming the regulatory force that will be used in determining if CAFOs of any size are in violation of the law.

Because NMPs are playing such a crucial role in the new permitting process, it is advised that any new CAFO or operation looking at this process pay particular attention to all feasible contingencies and management changes that may occur while the permit is in effect. In addition, some permitting agencies may require approval to deviate from any provisions in the approved plan.

Even more importantly, the new laws can offer some protection to any operation that is carefully following a NMP for their operation. Any operation working with a NMP that experiences a precipitation runoff event is covered, and this event is considered agricultural stormwater. It is therefore exempt from EPA regulation and will not be considered a discharge from the operation. It can, however, be used against an operation that has a discharge if they did not follow all the provisions of their NMP. For those thinking it will be a lifesaver when the rain hits at the wrong time, they might want to think twice about full compliance.
Provisions of your NMP

Operations that are looking at putting together a NMP should carefully consider all the rules set forth by the EPA. This way, whether you need a permit or not, you will be allowed some of the protections offered to any facility working within the confines of such a process. The provisions include, but are not limited to:

• Providing adequate storage of manure and wastewater

• Having adequate storage for a 25-year, 24-hour rainfall event

• Keeping clean water from flowing into production areas

• Keeping all animals out of U.S. waterways

• Identifying site-specific runoff controls (buffers, control ditches, site placement, slope, etc.)

• Showing test protocols for all soil, manure and wastewater involved in the management plan and keeping a record of all results for at least five years

• Showing proper utilization or remittance of manure and wastewater

• If permitted, submitting an annual report to the regulating authority

Large CAFOs will also be required to:

• Run analysis of all manure and wastewater on a yearly basis

• Analyze all soils for phosphorus content every five years

• Maintain setbacks from surface water, tile intakes and wellheads

• Provide purchasers of manure, wastewater or its byproducts current nutrient analysis

• Keep all NMP compliance records for five years

Please keep in mind that these changes are still to be finalized, but it appears they will be in affect as of July 31, 2007. As I stated earlier, each state regulatory agency will be over the details of compliance and enforcement of any changes that might apply to your operation. If you have any questions, it is suggested you contact your state representatives as soon as possible to avoid any conflicts that might arise to any permits you have or are planning on applying for in the future. ANM