Because of the potential for livestock operations to impact surface waters, facilities that are defined, or designated by the EPA as "Concentrated Animal Feeding Operations (CAFOs)" may be subject to permitting requirements and be required to implement Nutrient Management Plans (NMPs). A final rule issued July 18, 2007 extends the deadline for CAFO compliance, establishing February 27, 2009 as the new date for newly defined CAFOs to seek NPDES permit coverage and for permitted CAFOs to develop and implement nutrient management plans (NMPs) as required by EPA’s 2003 CAFO rule.
CAFOs are large Animal Feeding Operations (AFOs) where animals are kept and raised in confinement. Broadly speaking, an AFO is a CAFO either by definition, based upon animal numbers, or by designation, based upon its potential to impact surface water. CAFOs are further classified as 'Large", "Medium" or "Small" based upon both the type of animal and the number of animals.
EPA's authority over CAFOs derives from the Clean Water Act which requires EPA to regulate the discharge of pollutants, through a discrete conveyance such as a pipe, ditch or channel, to surface water bodies (“point source discharge”). CAFOs generate significant quantities of manure, litter and process wastewater that, if not managed properly, can impact surface water bodies.
EPA regulates point source discharges by issuing National Pollutant Discharge Elimination System (NPDES) permits. A NPDES permit sets requirements to protect water quality such as discharge limits, management practices and record keeping requirements.
Animal operations that are defined, or designated by EPA, as CAFOs, may be subject to the NPDES permitting. They may also be required to develop and implement a Nutrient Management Plan (NMP).
Areas Impacted by CAFO Regulations
The CAFO regulations apply to both the production areas and the land application areas. The production areas include all areas where animals are confined, manure and raw materials are stored and contain wastes. The land application area is any land that is under the control of the AFO operator whether it is owned, rented or leased, and to which manure of process wastewater from the production area is or might be applied. Examples of production areas and land applications areas respectively include the following:
- Open lots, housed lots, feedlots, confinement houses, stall barns, free stall barns, milkrooms, milking centers, cowyards, barnyards, exercise yards, medication pens, animal walkways, and stables.
- Lagoons, runoff ponds, storage sheds, stockpiles, manure pits, liquid impoundments, static piles, and composting piles.
- Raw materials storage areas such as feed silos, silage bunkers and storage areas for bedding materials.
- Lagoons, holding ponds, evaporation ponds.
- Eggwashing or processing facilities
- Areas where dead animals are handled, treated, stored or disposed.
Land Application Areas:
Land where manure, litter, process wastewater is applied. Runoff from fields where process wastewater or manure has been applied according to a NMP meeting NRCS standards would not be affected.
What is an NPDES Permit?
A NPDES CAFO permit will require an operation to meet certain conditions for the production and land application areas. Typically a permit has four main sets or requirements:
- Effluent Limitations: Effluent limitations for small and medium AFOs that are designated or defined as CAFOs are based on the best professional judgment (BPJ) of EPA and are defined on a case by case basis. The management practices and application rates in the NMP are specified by limitations based on BPJ. For Large CAFOs there are technology based Effluent Limitation Guideline (ELGs) that are included in permits.
- Special Conditions: Two special conditions must be included in all NPDES permits. The first requires the operator to develop and implement a NMP. The second special condition requires the CAFO operator to maintain permit coverage until the operation is no longer a CAFO. There are additional special condition for Large CAFOs that applies to transfer of manure, litter and process wastewater to other persons.
- Standard Conditions: Provisions that relate to monitoring, administrative and procedural permitting issues.
- Monitoring, Record Keeping and Reporting: Submit annual reports to the EPA; keep records of nutrient management practices for at least 5 years; and keep the permit current until the operation is no longer a CAFO.
Under the recent 2nd Circuit Court decision, NMPs must be reviewed and approved by EPA as part of the Permit to ensure compliance with the rule's "effluent limitations" for land application of manure. Permits and therefore NMPs, are subject to public review and comment before the regulatory agency makes a decision.
Nutrient Management Plans
The NMP is intended to limit the CAFO's impact on surface water and must describe how the operation will manage nutrients and waste in terms of storage, management of dead animals, clean water management, excluding animals from water, chemical handling, runoff, testing, land application, record keeping. The federal NPDES regulation does not require farmers to use a certified planner. The NMP requirements are designed to be consistent with the NRCS CNMP Technical Guidance.
The Approach in Massachusetts
The EPA is the permitting authority in Massachusetts and will implement the CAFO regulations at livestock operations that meet the definition of a "Large" or "Medium" CAFO and at designated small and medium operations with water quality impacts. EPA is the authority that will designate medium and small facilities as CAFOs should the facility be determined to be a significant contributor of pollutants to surface waters.
In Massachusetts, many livestock operations meet the regulatory definition for "Animal Feeding Operation" because animals are generally confined for periods of at least 45 days over the course of a year due to the harsh winter conditions. However, because of the small scale of most Massachusetts livestock operations, they can only be defined or designated as a medium or small CAFO respectively, if they are impacting on surface water bodies.
EPA will initially focus on ensuring compliance for Large CAFOs. Recently the 2nd Circuit court, however, has ruled that Large CAFOs need only seek NPDES permits it they are discharging, or have the potential to discharge. NMPs are a mechanism to show that there is no discharge. EPA is currently engaged in rule making to address this. Massachusetts farms typically are not large enough to meet the Large CAFO definition.
In Massachusetts the Department of Agricultural Resources (MDAR) has developed a cooperative agreement with EPA regarding the implementation of the CAFO rule. EPA will generally focus on permit development and issuance. MDAR will assist farmers in determining whether their operations meet EPA's regulatory definitions of a CAFO. MDAR is directly providing outreach and education to AFO operators on both EPA's regulatory CAFO program and the availability of technical and financial assistance programs which can help farmers to better protect water quality. MDAR field staff typically conduct a field analysis of a facility, and help identify areas where the farmer needs to address potential water quality impacts. Information on technical assistance and funding opportunities are then provided. Among the funding resources available to help farmers address a discharge to a water resource are the state's Agricultural Environmental Enhancement Program (AEEP) and the federal EQIP program.
In Massachusetts, livestock operations typically would be considered as small or medium operations. For small and medium AFOs, EPA favors an approach, other than NPDES permitting to help medium and small AFOs avoid having conditions that would result in those facilities being defined or designated as CAFOs. For example, the voluntary development and implementation of a Comprehensive Nutrient Management Plan (CNMP) prepared in accordance with the CNMP Technical Guidance issued by NRCS should in most circumstances help operations avoid having conditions that could result in their being defined or designated as a medium or small CAFO. EPA's approach is documented in an agreement between EPA and USDA relative to the implementation of the CAFO rule.
If any operations meet the large or medium sized CAFO definition, MDAR will provide the operator of a CAFO with an EPA NPDES Form 2B, Application for Permit to Discharge Wastewater. Large CAFOs are only required to apply for a NPDES permit coverage if they are discharging or intend to discharge pollutants to surface water. A Medium CAFO, by definition, is already discharging pollutants to surface water and so would need to seek permit coverage at the Region One EPA Office.
EPA's CAFO rule has been the subject of litigation in recent years. A rule issued July 18, 2007 extends the deadline for CAFO compliance, establishing February 27, 2009 as the new date for newly defined CAFOs to seek NPDES permit coverage and for permitted CAFOs to develop and implement nutrient management plans (NMPs) as required by EPA’s 2003 CAFO rule.