How will EPA’s new CAFO rule affect you?

     The U.S. Environmental Protection Agency’s concentrated animal feeding operations (CAFO) rule, released last October, is set to go into effect this month. But “this situation is a moving target…so expect changes and new interpetations as this evolves,” says Karl Czymmek of Cornell University’s PRO-DAIRY program.
     Czymmek has these highlights of the new rule, which EPA was forced to write after the 2005 Waterkeeper vs. EPA court decision:
• Farms that “discharge” to waters of the United States are expected to apply for Clean Water Act Permits.
• Farms that are not
designed, constructed and maintained to prevent process wastewater from reaching waters of the United States are deemed to “propose to discharge,” and need a Clean Water Act (CWA) Permit, according to EPA.   In effect, even though they do not discharge regularly, these farms are not designed or managed to prevent a discharge should the conditions occur.
• As far as EPA is concerned, farms can decide for themselves if they need a permit, but all farms of Large CAFO size are expected to have a nutrient management plan for land application of manure regardless of whether they have a permit or not.
• Farms that do not seek a permit may voluntarily certify to EPA that they do not discharge. It is likely that not many farms will voluntarily certify “no discharge” to EPA, Czymmek says. 
• EPA’s Clean Water Act permit requirements are very restrictive from a farming standpoint. They:
-Permit agency review of the farm plan, including manure rates for each field, for the next five years.
– Require public notice and access to plan details before the permit can be issued.
– Make public hearings possible in some circumstances.
– The CWA Permit term is five years unless the farm adds any
new land for manure spreading, adds a new crop or increases nutrient or manure rates on any fields.   Such changes trigger a new review and public notice process. “Needless to say, many farms would find this process unworkable for a variety of reasons,” Czymmek says.
CAFO laws in several states will also change, and may supersede EPA’s CAFO law. In New York:

o      In August of 2008, the Department of Environmental Conservation released a  draft CAFO Permit for New York.

o      This draft had a number of challenging provisions and many organizations, including Northeast Dairy Producers Association (NEDPA) and NY Farm Bureau (NYFB) provided comments to DEC in September, 2008. 

o      In December 2008, with NYFB leadership, NEDPA and NYFB representatives, met with DEC officials in Albany to voice concerns about the direction of the August draft of the proposed NY permit and the development process. 

o      NEDPA lead an effort to develop a joint statement from the dairy industry voicing a number of concerns about the August permit draft.

o      Due to changes to the federal CAFO rule and undoubtedly helped along by an organized industry expressing concerns, DEC reconsidered its earlier approach and released two draft permits for public comment.  Here’s how things look now:

§       There are two permits for New York.  DEC hopes to have them issued by July 1, 2009. If not, the current permit is expected to continue until replaced).

§       According to DEC, all NYS farms more than 200 cows or 300 heifers (or meeting other medium CAFO animal numbers) are going to be required to get one of these permits.  For the most part, each farm will be allowed to decide which permit to get, but they must have one or the other.

§       DEC is offering a Clean Water Act permit that closely mirrors the federal permit described above.  This is for farms that “discharge or propose to discharge.”

§       The other permit is a New York state permit for farms that do not “discharge or propose to discharge.” 

§       DEC indicates a farm that “discharges or proposes to discharge” is one not constructed, designed and maintained according to NRCS standards.   Conversely, a farm that does not discharge or propose to discharge is designed, constructed and maintained in accordance with NRCS standards.  

§       Large (and medium) CAFOs with a fully implemented CNMP meet the no-discharge definition and will be eligible for the state permit.

§       Large CAFO’s that are not fully implemented within six months after the new permits are issued will not be eligible for the state permit and will need to get the CWA permit.  While there may be other reasons why a large CAFO may want to get the CWA permit, large CAFO’s that are not yet fully implemented should strongly consider getting fully implemented in order to preserve the option to be covered under the state permit.

§       Medium CAFO’s that want to get the state permit need to at least have a nutrient management plan and other “non-structural practices” implemented to be eligible for the state permit.  All medium CAFO’s, whether permitted or not, would be wise to get this taken care of in the coming months so that they will not need to get the CWA permit.

§       Under the state permit, all information submitted to DEC will be made available to the public upon filing a Freedom of Information request.  Large CAFO’s will be required to submit more detailed information than mediums in the form of an Annual Nutrient Management Plan.  In this document, large CAFOs will have the option of submitting either a written description of the farmstead OR farmstead maps.