Concentrated Animal Feeding Operation (CAFO) Regulations - Update

1. Concentrated Animal Feeding Operation (CAFO) Regulations - Update Meg Collins Colorado Livestock Association & Landon Gates Colorado Farm Bureau Water Quality Forum November 20, 2006

2. Review of CAFO History • The 1972 Clean Water Act designated CAFOs as point sources and EPA promulgated regulations in 1976 designed to minimize the impacts of CAFO activities on surface waters; • In Colorado, CAFOs with sufficient storage to contain the “25-year, 24-hour storm event” required by the CWA were not required to seek a permit. The program was described as “self-implementing” and “complaint driven”; • Due to lawsuits, EPA was compelled to update and enforce its CAFO regulations. The final regulations were issued in February 2003; • Colorado completed its CAFO rulemaking on April 13, 2004, and the regulations became effective June 30, 2004.

3. Current Colorado CAFO Regulations Key Provisions: • Operators are required to have adequate storage to contain a 25-year, 24-hour storm or chronic storm event (10 day/10year), whichever is greater; • Producers were to have available on-site, Nutrient Management Plans that describe appropriate process wastewater and manure management practices for the production area and land application sites, mortality management, transfer of manure to third parties and recordkeeping; • Colorado producers must also comply with strict groundwater protection requirements contained in Regulation 81 which applies to CAFO impoundments. These impoundments must be designed and constructed to meet a “no seepage” seepage rate of 10-6 or 1/32” per day;

4. 2nd Circuit Court Waterkeeper Decision Key Decisions That Required EPA’s Response: • The 2nd Circuit Court decision, issued in February 2005, had a “little something for everyone” who had challenged the final federal CAFO regs; • The Court struck the “duty to apply” permit requirement in the federal rule on the basis that the CWA applied to “actual” discharges not a “potential to discharge”; • The Court agreed that Nutrient Management Plans (NMP) are Effluent Limitation Guidelines (ELG) and are required to be part of the permit, required to be reviewed by the permitting authority and available for public review;

5. 2nd Circuit Court “Waterkeeper” Decision (Cont.) Key Decisions (Cont.) • The Court rejected arguments that discharges from land application areas under the control of a CAFO are non-point source discharges and ruled that any discharge from land application areas under a CAFO’s control are point source discharges , except for agriculture stormwater discharges; • The Court upheld the validity of the “ agricultural stormwater exemption” as long as an operator used a site-specific nutrient management plan for land application areas under the control of the CAFO. Any discharge from a land application area as a result of a precipitation event does not need a CAFO permit, if there is an NMP;

6. EPA’s Response to 2nd Circuit “Waterkeeper” Decision • As deadlines under the prior federal CAFO rule were looming, in February 2006, EPA published a “mini rule” that changed the 2006 permit application and NMP deadlines to July 31, 2007; • On June 30, 2006, EPA published the Proposed CAFO rule reflecting the changes made by the 2nd Circuit Court’s Waterkeeper decision; • August 29, 2006, was the deadline for public comment on the proposed Rule; • The CLA & the Colorado Farm Bureau individually and through their national organizations focused their comments on the following areas of concern in the Proposed Rule:

7. Industry Response to EPA Proposed CAFO Rule Duty to Apply: • The Court decision made clear that “potential to discharge” is not consistent with the CWA and not a valid basis for requiring a CAFO permit. • The Proposed Rule requires that CAFOs that “discharge or propose to discharge” must seek permit coverage. • Industry has commented that the “propose to discharge” language is “potential to discharge” in a different disguise and contradicts the Waterkeeper decision. • Industry does recognize that a permit protects CAFOs from federal liability in the event of an unforeseen discharge.

8. Industry Response to EPA’s Proposed CAFO Rule (Cont.) Agricultural Stormwater Discharge Exemption: • The proposed rule affirms the Court’s decision that as long as the CAFO uses a site-specific NMP for a land application area under its control, any discharge due to a precipitation event is not subject to permitting requirements; • Industry comments support this interpretation and recommend that CAFOs that choose not to apply for a permit need to document their protocols for soil and manure testing and for land application at proper agronomic rates, in order to qualify for the exemption.

9. Industry Response to EPA’s Proposed CAFO Rule Nutrient Management Plans: • Industry submitted comments that the EPA proposed NMP template needs to be simplified; • the NMP must be flexible in order to accommodate changes in cropping or other decisions; • the NMP should not duplicate engineering requirements that are contained in the permit; and • a firm deadline for review of the permit and NMP by the permitting authority and public review is necessary for the success of the program.

10. Impact of “Waterkeeper” & EPA’s Proposed Rule on Colorado Producers • Created further delays for the 40+ operators who have submitted CAFO permit applications since Colorado adopted its regulations in 2004; • Compelled CDPHE to conduct a rulemaking completed in October 2006 to adopt the July 31, 2007, deadline in the EPA “mini-rule” for permit application and NMPs, in order for the state to move forward on pending CAFO permit applications; • EPA is expected to publish the final CAFO rule in June of 2007 and the current Colorado regulations will need to be conformed to the final rule.