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July 5, 2006Client Alert

EPA Proposes New CAFO NPDES Rules; Wisconsin’s CAFO Rulemaking Moves to Legislative Review

On June 22, 2006, and in response to a recent Second Circuit Court of Appeals decision, the Environmental Protection Agency (EPA) issued a proposal to revamp various concentrated animal feeding operation (CAFO) rules. If adopted, the revisions would significantly change several aspects of EPA's current CAFO discharge regulations. EPA has scheduled public hearings across the country to discuss its proposals and will accept comments on the proposed rule for forty-five days. In the Midwest, EPA will hold a hearing on July 25, 2006 in Ames, Iowa.

Meanwhile, Wisconsin's comprehensive revision to its counterpart regulation concerning CAFOs was unanimously approved by the Natural Resources Board on May 24, 2006 and moves to the Legislature. A joint legislative review hearing will be held on August 3, 2006 on the Wisconsin Department of Natural Resources' (WDNR) proposed comprehensive repeal and recreation of Ch. NR 243 of the Wisconsin Administrative Code.

In February 2003, EPA issued a revised national pollutant discharge elimination system (NPDES) rule focusing on the nation's top 5% of CAFOs based on their risk of impairing water bodies. This rule required all Large and Medium sized CAFOs that discharge manure, litter, or process wastewater into U.S. waters to obtain an NPDES permit. Both environmental and industry groups challenged this rule in Waterkeeper Alliance et al. v. EPA, 399 F.3d 486 (2nd Cir. 2005), and the decision, which was nationally applicable, both upheld and vacated portions of the 2003 rule. EPA has now proposed comprehensive rule revisions in response.

The proposed new rule makes four major revisions. First and foremost, the rule redefines the NPDES applicability provisions: under EPA's new proposal only CAFOs that directly discharge or propose to discharge need to apply for an NPDES permit. CAFOs that only land apply manure, litter, or wastewater do not need an NPDES permit if their only potential discharge is from stormwater runoff. However, if a facility has an actual discharge and failed to obtain a permit, it would be in violation of the NPDES rules and the Clean Water Act. Thus, the rule's preamble provides a list of those Large CAFOs that should consider getting a permit:

  • Where the CAFO is located in close proximity to water of the United States with land classified in USDA Land Use Capability Classes III through VIII;
  • Where the CAFO's production area is not designed and operated for zero discharge, including where the containment structure is not designed or maintained to contain all manure, litter, process wastewater, precipitation, and runoff that may accumulate during periods when the facility is unable to land apply;
  • Where a CAFO that land applies does not have or is not implementing nutrient management planning that is designed to ensure that any land application runoff qualifies for the agricultural stormwater exemption; or
  • Where the CAFO has had a discharge in the past and has not corrected the factors that caused the discharge.

While this first revision loosens the CAFO regulations, the second proposed revision tightens the regulations for those CAFOs that still must obtain a NPDES permit. The rule requires CAFOs to submit a facility-specific nutrient management plan (NMP) with their permit application; permit authorities are then required to review the NMP, allow public comment, and incorporate the NMP's terms into the permit as enforceable elements. A draft NMP template is available on EPA's website.

Third, the rule proposes to clarify that water-quality based effluent limitations (WQBELs) are available in permits with respect to production area discharges (except for swine and poultry sectors) and non-precipitation related land application discharges. WQBELs are not, however, available for Large CAFO precipitation-based discharges related to land application.

Last, but certainly not least, the proposal reaffirms EPA's decision to set the best conventional pollution control technology (BCT) for fecal coliform to be equal to the 2003 CAFO rule's best practicable control technology (BPT) limits.

  • As for Wisconsin's proposed rulemaking, it continues to be more stringent than the federal rule in a number of important aspects including:
  • Requiring all animal feeding operations that confine more than 1,000 animal units to obtain a permit regardless of whether the CAFO actually discharges or is proposing to discharge;
  • Mandating a minimum of 180-days storage capacity for liquid manure rather than simply requiring "adequate" storage as is required in the federal rule;
  • Prohibiting surface application of manure when there is a 70% chance or greater of a 1/2 inch rain on non-frozen or non-snow covered ground or a 50% chance or greater of a 1/4 inch rain during frozen and snow covered conditions, predicted to occur within 24 hours of the end of the application as predicted by the National Weather Service. All the federal rules require is that records be maintained concerning weather conditions 24 hours before, at the time of and 24 hours after the application;
  • The proposed Wisconsin rule calculates animal units by aggregating different species and animal sizes into the calculation whereas the federal rule requires calculation only based on one type or size of animal;
  • The proposed Wisconsin rule incorporates by reference the September 2005 Wisconsin version of NRCS 590 Nutrient Management Code as its performance standard, a new phosphorus-based nutrient management standard. Additionally, the rule includes restrictive nutrient application restrictions far beyond those resource protection restrictions in the 590 Nutrient Management Code. The rule results in a "one size fits all" regulatory approach to nutrient management rather than a performance-based system.

For further information concerning these programs, please contact David A. Crass at 608.283.2267, or dacrass@michaelbest.com.

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