Proposed NPDES Rule for CAFOs

The most recent chapter in the Clean Water Act (CWA) regulations for livestock agriculture is now in the form of a proposed rule.  On October 14, 2011, The Environmental Protection Agency (EPA) proposed a new National Pollutant Discharge Elimination System (NPDES) reporting rule for Concentrated Animal Feeding Operations (CAFOs). 

If you recall in 2008, the EPA revised the NPDES regulations (in response to the Waterkeeper decision) to, among other things, require only those CAFOs that discharge, or propose to discharge, to obtain an NPDES permit.  More recently, on March 15, 2011, the Fifth Circuit Court of Appeals vacated the requirement in the 2008 CAFO rule that CAFOs that propose to discharge obtain an NPDES permit.  The ruling said there must be an actual discharge to trigger a requirement for a permit (an NPDES Permit under the CWA).

On the other hand, the EPA committed in 2010 to propose a rule (pursuant to section 308 of the CWA) that would require CAFOs to provide certain information to the EPA.  The agreement essentially obligated the EPA to require all owners and operators of CAFOs to submit information to the EPA.  The specific requirements in the settlement agreement include the following:

1. Name and address of the owner and operator;

2. If contract operation, name and address of the integrator;

3. Location (longitude and latitude) of the operation;

4. Type of facility;

5. Number and type(s) of animals;

6. Type and capacity of manure storage;

7. Quantity of manure, process wastewater, and litter generated annually by the CAFO;

8. Whether the CAFO land-applies;

9. Available acreage for land application;

10. If the CAFO land-applies, whether it implements a nutrient management plan for land application;

11. If the CAFO land-applies, whether it employs nutrient management practices and keeps records on site consistent with 40 CFR 122.23(e);

12. If the CAFO does not land apply, alternative uses of manure, litter and/or wastewater;

13. Whether the CAFO transfers manure off site, and if so, quantity transferred to recipient(s) of transferred manure; and

14. Whether the CAFO has applied for an NPDES permit.

EPA’s authority to collect information under section 308 from point source discharges is broader than the EPAs authority to enforce a requirement to apply for an NPDES permit.  According to the EPA, this proposed rule is for “…gathering basic information from CAFOs; it does not require them to obtain permits.”

To achieve this objective of gathering information, the EPA proposes two options.

-Under the first option, the EPA is proposing those states with approved NPDES permits submit the information to the EPA.

-Under the second option, the EPA would focus on “watersheds with water quality problems likely attributable to CAFOs…”

Both these options include significant details that should be reviewed carefully by stakeholders. For example, in the second option, one way in which EPA would focus on specific watersheds is to look at CAFOs located in “minority, low-income, and indigenous communities…” This environmental justice aspect can become very complicated and emotionally charged.

This proposed rule has a 60-day comment period and EPA has scheduled two webcasts to discuss this proposed rule (http://cfpub.epa.gov/npdes/outreach.cfm?program_id=0&otype=1).  EPA also has stated they are committed to take final action on the rule by July 13, 2012. You can read the proposed rule here http://www.epa.gov/npdes/regulations/cafo_fr_proposed_reporting_rule.pdf

If you have any questions about NPDES permits, contact Christopher Paré (cpare@dragun.com) or Matthew Schroeder (mschroeder@dragun.com) at 248-932-0228.

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