CAFOs debated as legal ag issue

By JULIET BRISKIN | Staff writer

November 6, 2003 -- Concentrated Animal Feeding Operations (CAFOs) have recently found themselves regulated by a newly-revised rule that has led to lawsuits by both the Sierra Club and agricultural groups. The Environmental Protection Agency (EPA) released its new CAFO rule in December 2002, but it did not become final until April 2003.

According to the Sierra Club the new rule allows unacceptable levels of animal waste to enter U.S. waters. On the other side of the issue, agricultural groups feel the regulations exceed the EPA's authority.

At the American Agricultural Law Association's 2003 Conference in San Antonio on Oct. 17, attorneys from across the United States gathered to hear the new requirements and how to best counsel their clients to ensure compliance.

Dr. Theodore Feitshans of North Carolina State University spoke to the conference on the background of this new rule and presented an update on the rule's requirements.

"The CAFO regulations were issued pursuant to the Clean Water Act of 1972, and the statute specifically mentions CAFOs by name as a regulated category," he explained. "The recently released revisions are the first major changes to the rule since the mid-1970s, and in the new rule there are a lot of incentives to be a non-point source."

According to Feitshans, the EPA's final rule has made significant modifications to the regulation of CAFOs while maintaining its basic regulatory structure. "Once the regulation is fully implemented about 300 million tons of manure annually will be regulated," he stated, "with the most dramatic changes affecting the poultry industry."

The basics of the new rule are as follows:

The 25-year, 24-hour storm exemption has been eliminated. Under the old rule, a CAFO did not need a National Pollutant Discharge Elimination System permit (NPDES) if it only discharged during an event that brought the amount of rainfall expected during a 24-hour period that occurs on average once every 25 years or more. The new rule requires all large CAFOs to apply for an NPDES permit or to demonstrate that no potential to discharge in U.S. waters exists.

The EPA now requires permits for large dry manure poultry operations. According to Feitshans, the EPA found that dry litter manure handling systems represent a sufficient threat to surface water quality to require regulation.

The discharge of manure, litter or processed wastewater from a CAFO to land areas under its control is now subject to NPDES permit requirements. The only exemption to this change is for agricultural storm water discharge, and the EPA noted that dry weather discharges from the land application area to surface waters may never be considered an agricultural storm water discharge.

Any CAFO that is issued a NPDES permit must develop and implement a nutrient management plan that includes, at minimum, best management practices and procedures for that operation. According to Feitshans, these plans must be available on site and include all nine components required by the Final Rule (see sidebar).

New large swine, veal, and poultry operations are not permitted any discharge from the production area, and manure storage facilities must be designed to contain runoff from a 100-year, 24-hour rainfall event.

Finally, the Final Rule requires that records must be kept and reports be made to the EPA annually. These reports must contain, at minimum, the number and type of animals confined; estimated amounts of wastes generated over a 12-month period; estimated amounts of wastes transferred to other persons over a 12-month period; total number of acres used for land application under the waste management plan; a summary of all manure and wastewater discharges from the production area over a 12-month period; and

whether the nutrient management plan was produced by a certified nutrient management planner.

According to Feitshans, the EPA estimated that only about 20 percent of livestock and poultry operations were in compliance with the old regulations, and due to lack of funding, enforcement by the individual states has been difficult. A goal of the new Final Rule is to help streamline enforcement by extending the time for compliance over a three-year period and by simplifying the definition of a CAFO.