On June 22, the U.S. Environmental Protection Agency (EPA) announced that it was seeking public comments on a proposed rule that would revise several parts of EPA’s National Pollutant Discharge Elimination System (NPDES) and Effluent Limitation Guidelines (ELGs) for concentrated animal feeding operations (CAFOs). The proposed rulemaking is in response to the February 2005 order issued by the 2nd U.S. Circuit Court of Appeals in Waterkeeper Alliance et al. v. EPA.

During the 45-day comment period, which ends mid-August, EPA is seeking comment on these proposed revisions. Nebraska Cattlemen has aggressively participated in the process by providing our own comments to EPA, plus signing on to multi-party comments submitted with other NCBA affiliates. Some of the proposed revisions appear not to affect cattle producers in Nebraska because they are already part of state statues or regulation (Title 130). In other cases, depending on the final EPA rule, revisions may be necessary to Nebraska’s Livestock Waste Management Act yet again. Because of the timetable involved at the federal level, any changes to Nebraska statutes would likely not be debated until the 2008 Legislature.

EPA initially issued national effluent limitations guidelines for feedlots on Feb. 14, 1974, and NPDES CAFO regulations on March 18, 1976. In February 2003, EPA issued a revised rule that expanded the number of operations covered by CAFO regulations and included requirements to address the land application of manure from CAFOs. It required all “large CAFOs” (which EPA defined as more than 1,000 cattle), and all medium CAFOs (between 300 and 999 cattle) that discharge manure, litter, or process wastewater to “waters of the United States” to apply for an NPDES permit.

What will change?

After EPA issued regulations in February 2003, petitions for judicial review were filed by CAFO industry organizations and by environmental groups. The petitions for review, which were originally filed in several different appeals courts, were consolidated into one proceeding before the Second Circuit in New York. The Second Circuit’s decision, which applies nationally, both upheld and vacated or remanded provisions of the 2003 CAFO regulations.

The court’s actions sent EPA back to the drawing board for revisions, which were announced June 22. EPA’s proposal would revise several aspects of current regulations governing discharges from CAFOs. First, EPA proposes to require only CAFOs that discharge or propose to discharge to the waters of the U.S. to apply for a permit. However, CAFOs that land-apply manure, litter or processed wastewater would not need NPDES permits if the only discharge from those facilities is agricultural stormwater.

Second, EPA proposes greater public participation in the issuance of an NPDES permit by requiring CAFOs seeking coverage under a permit to submit a facility-specific nutrient management plan (NMP) along with their permit application or notice of intent. Permitting authorities would be required to review the plan and allow the public meaningful review and comment. Permitting authorities would also be required to incorporate terms of the NMP into the permits as enforceable elements. In Nebraska, the NMP has been a part of the “application” for many years, so this is not a significant change. Likewise, in Nebraska the public already has the opportunity to review and comment on all aspects of permit applications.

Finally, EPA is proposing to remove the 100-year, 24-hour storm-containment structure standard for new large hog, poultry and veal facilities, due to the lack of records supporting this technology, and replace it with a zero discharge requirement.

‘No potential to discharge’ is history

The 2003 rule included a process for CAFOs to seek a “no potential to discharge” determination and therefore avoid the permitting process altogether. The 2nd Circuit Court of Appeals vacated the provision that required all CAFO owners or operators to apply for an NPDES permit. The court held that the federal Clean Water Act (CWA) authorizes EPA to require permits for the actual discharge of pollutants, but not for mere potential discharges.

Who needs a permit?

The result of the proposed revision is that only owners and operators of those CAFOs who discharge or propose to discharge would be required to seek coverage under an NPDES permit. This revised duty to apply would be required of all owners and operators who discharge or propose to discharge, regardless of the volume or duration of the discharge, except for discharges of agricultural stormwater. Any CAFO that discharged or proposed to discharge and failed to obtain an NPDES permit would be in violation of the requirement to seek coverage under an NPDES permit.

Any discharge from a CAFO, even one that is unplanned or accidental, is illegal unless it is authorized by the terms of a permit. Many CAFOs have conditions that may result in a discharge. For example, manure structures that are improperly designed or, for other reasons, have insufficient capacity (because of facility expansion) have the potential to discharge. In addition, discharges can occur from a properly designed containment structure that is improperly operated and maintained, or as a result of precipitation that exceeds the operating capacity of the structure. In the absence of an actual discharge or proposed discharge, CAFOs with such conditions are not required under the terms of today’s proposed rule to obtain an NPDES permit. However, the owner or operator of a CAFO who fails to obtain an NPDES permit and has a discharge is subject to state or federal enforcement, as well as liability from citizen suits under CWA Section 505(a).

Because discharges are prohibited from unpermitted CAFOs, NPDES permit coverage reduces CAFO operator risk and provides certainty to CAFO operators regarding activities and actions that are necessary to comply with the CWA. Compliance with the permit is deemed compliance with the CWA, and thus acts as a shield against EPA enforcement or citizen suits under CWA Section 402(k).

The bottom line is that federal regulations governing livestock facilities are being promulgated in the courts rather than by our elected representatives. Federal mandates then dribble down to where states must acquiesce or give up their freedom to self regulate. Lawsuits crafted by organizations with anti-livestock or even anti-meat agendas are dictating the rules that regulate livestock facilities.

NC is committed to working with all stakeholders in protecting our valuable natural resources, including those who produce food for our tables – Nebraska Cattlemen

Duane Gangwish is NC’s vice president for technical services.