EPA's CAFO Rule - What's Next?

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By Ralph Summers, EPA Region 7, and Gene Tinker, Iowa Department of Natural Resources

In December 2002, the U. S. Environmental Protection Agency (EPA) finalized regulations to reduce the amount of water pollution from large livestock operations. The revised Concentrated Animal Feeding Operations (CAFO) Rule was published on Feb. 12, 2003 in the Federal Register, and became effective on April 14, 2003.

Why did EPA revise the CAFO Rule? The regulations, which dated from the mid-1970s, needed to be updated to reflect changes in the livestock industry, especially the trend for fewer, but larger feeding operations. Water quality problems were being caused by some of these operations. Also, because EPA was under a court order to do so.

The revised CAFO Rule was challenged by industry and environmental groups. All the challenges to the Rule were combined and heard by the United States Court of Appeals, Second Circuit. On Feb. 28, 2005, the Second Circuit Court announced its decision. Before discussing the Court's decision, I will briefly review two important aspects of the revised CAFO Rule.

The Rule requires that all CAFOs apply for a permit under the National Pollutant Discharge Elimination System (NPDES). The Rule included dry poultry operations in the definition of a CAFO for the first time (some states already regulated them). It also did away with the exemption for operations that did not discharge from the production area. Under the CAFO Rule, total confinement operations that met the exemption for operations that did not discharge from the production area, are considered newly defined CAFOs and must apply for a permit by April 14, 2006. Open lot operations already should have NPDES permits. The Iowa Open Feedlot Plan is being implemented to address this issue.

The Rule concentrates on nutrient management with the centerpiece being the requirement for a Nutrient Management Plan to be developed and implemented by all permitted CAFOs on or before Dec. 31, 2006.

In the Second Circuit Court decision, the Court upheld most of EPA's CAFO Rule. Almost all of the technical standards remain unchanged. Three issues were remanded to EPA for further information. However, the Court did vacate two issues. EPA will have to change or add to the regulations to address these.

The Court held that since the Nutrient Management Plan was to contain many of the requirements that the CAFO would have to do under the permit, that Plan was an effluent limit. Effluent limits must be a part of the permit. Since they are so important, the Plans must be reviewed by the permitting authority to assure that all the "right stuff" is addressed. The Plan must be available to the public to review as part of the permit issuance process, and also be available so that compliance with the permit can be evaluated.

The other issue that the Court vacated was the "Duty to Apply." EPA's Rule had required that all CAFO operations must apply for a permit because of the potential to discharge. Getting a permit and following the requirements of the permit would help prevent discharges. The court ruled that EPA could not require applications based on the "potential to discharge," The result is that permits are only required for CAFOs that discharge. However, it should be emphasized, that any discharge of pollutants from a CAFO, regardless of storm size, is illegal without a permit.

Key issues for EPA to consider in response to the Court decision include:

• who must apply for a NPDES permit, based on production area and land application discharges,
• how to include the nutrient management plans in permits
• how to address the April 2006 and December 2006 compliance date deadlines.

The impact of the Second Circuit Court's decision on CAFOs in Iowa is still not completely known. As EPA makes decisions, asks for public comments, and goes through the rule making process in changing the CAFO Rule, EPA Region 7* staff will keep you informed.

The Iowa perspective

Iowa rules are not currently in compliance with the EPA CAFO rule. To correct this, rules were drafted and presented to the Environmental Protection Commission. The Commission approved proceeding with rule making, so comments were collected from the public on the appropriateness and impact of the proposed rules. Since the Second Circuit Court's decision will require some modifications to the CAFO Rule, the rule making process for Iowa was terminated.

The Commission has instructed the DNR to move forward with rule making for the portions of the CAFO rule that are supported by the court ruling. This rule package will include the parts of the CAFO rule that were not affected by the court ruling and some of what was indicated in the court ruling, such as the requirement for operations that have discharged to acquire a NPDES permit.

Upon the adoption of EPA's revised CAFO rule, a second rule package proposal will be developed to bring Iowa's rules into agreement with the CAFO rule.

* The EPA 7 Region includes Iowa, Kansas, Missouri, Nebraska and nine Tribal Nations