1. CAFO Rule Update and Region 4 CAFO NPDES Program Implementation by Wayne J. Aronson Chief, PGTA Branch Ag Meeting December 06, 2005

2. 2 CAFO Lawsuit “Waterkeeper Alliance, et al. v. EPA” 2003  Litigants Environmental Petitioners: Waterkeeper Alliance, American Littoral Society, NRDC, Sierra Club Industry Petitioners: American Farm Bureau Federation, National Pork Producers Council, National Chicken Council  Key Issues Duty to Apply Land Application Nutrient Management Plans

3. 3 Court Decision  February 28, 2005 -- 2 nd Circuit Court of Appeals (New York) Decision – Consolidated Appeals  This decision applies nationally

4. 4 Court Decision (cont.)  Court Vacated Duty to apply based on “potential to discharge” Issuance of permits without public review of Nutrient Management Plans, and incorporation of Nutrient Management Plan requirements into the permit

5. 5 Court Decision (cont.)  Court remanded for further explanation: New Source Performance Standards (NSPS) 100-year storm standard for veal, pork & poultry (and whole farm alternative standard for NSPS)

6. 6 Key Issues for EPA Duty to apply:  The Court said: –The requirement that all CAFOs with a potential to discharge should be vacated  EPA action: –Replace with requiring CAFOs that either have a discharge or propose to discharge must have a permit

7. 7 Key Issues for EPA Nutrient Management Plans (NMP):  The Court said : The NMP must be reviewed by the permit authority and the public, and must be included in the NPDES permit  EPA action: The revised rule will include above requirements Issues to be resolved include: –How to maintain the integrity of the general permit process? –The feasibility of using an NMP template to facilitate the process –Permit modifications related to changes in the NMP

8. 8 Key Issues for EPA  Agricultural Stormwater: Land Application Regulation states that if an operator land applies in accordance with agronomic practices outlined in 122.42(e)(vi)-(ix), then a precipitation related discharge is exempt from NPDES requirements Clearly, a Nutrient Management Plan will be necessary to support an operator’s claim to this exemption

9. 9 Key Issues for EPA  Application dates in the 2003 Rule remain in effect until EPA promulgates revisions February 13, 2006 - for newly defined CAFOs to apply for permits (Any new CAFO must apply for permits 180 days prior to commencing operation) December 31, 2006 - date by which all existing CAFOs must develop and implement an Nutrient Management Plan Three year period since 2003 regulation was published to prepare for these requirements

10. 10 Key Issues for EPA However, EPA plans to change these dates in its revised rule. Issued a Federal Register Notice – October 31, 2005 This Federal Register Notice extends the permit application date of February 13, 2006, and the Nutrient Management Plan due date of December 31, 2006, to a later date that will be announced and finalized before February 13, 2006.

11. 11 Schedule for Rule Revision  Proposed rule published: 1/06  Public comment period: 1/06–3/06  Final rule: Fall 2006

12. 12 CAFO Program Implementation Status  To date, approximately 20 states have final revised CAFO programs in the nation with the 2003 rule - many of which include final general permits. 6 out of 8 states have revised CAFO programs in Region 4. Five Region 4 states currently have CAFO general permits.  Approximately 40% of the 18,900 CAFOs are currently permitted in the nation. 52% of the 3600 CAFOs are currently permitted in the Region.  EPA is working with NRCS on strategy to get Nutrient Management Plans developed on time and to clarify what portions of a Compressive Nutrient Management Plan can be used to comply with the CAFO rule

13. 13 What to do until EPA revises the 2003 CAFO rule? The Message:  Most aspects of the 2003 rule were not affected by the Court’s decision, 2003 rule remains in effect and should continue to be implemented  Until EPA revises its rule, States and EPA Regions should not halt CAFO program development and implementation but continue to move forward and incorporate the terms of the Second Circuit Court decision, where appropriate