If your first thoughts on reading the title are the same as the noted philosopher, Yogi Berra: “It’s déjà vu all over again!” then relax, you are not alone. It seems I just got the files of background material off my desk from the 2003 CAFO (Confined Animal Feeding Operation) rule, and then I had to haul them out again.
Why are we going through this regulatory process on CAFOs again? Because, following the February 2003 issuance of the CAFO rule, several groups sued EPA over the rule. Initially, several environmental organizations sued seeking greater public participation in the permitting process. The poultry industry had not planned to sue over the 2003 CAFO rule. But, the activists’ lawsuit, and the potential for settlement negotiations between activists and EPA changed that position, as our interests needed to be represented in any CAFO rule negotiations. Hence, the National Chicken Council and the National Turkey Federation joined with several other agricultural organizations to challenge the rule.
Ultimately, the challenges were consolidated into a single case heard by the U.S. Second Circuit Court of Appeals, New York, N.Y. The Court’s February 2005 decision mostly upheld the 2003 rule, but struck down a few key components, and directed EPA to revise the rule to reflect the Court’s decision. EPA proposed a revised rule on June 30, 2006, and the comment period closed August 26. Expect final issuance over the winter months.
The CAFO rule revisions proposed by EPA reflect little beyond the changes mandated by the court. First, the most significant impact of the court’s ruling on poultry growers is that the court agreed with animal agriculture challengers and struck down the so-called “duty to apply” clause in the 2003 rule. This clause said any grower with more than a 125,000-broiler capacity or 69,000-turkey capacity must get a National Pollutant Discharge Elimination System (NPDES) permit for that operation. The Second Circuit Court ruled farm capacity was not the proper threshold for establishing the need for a permit. Rather, “unless there is a ‘discharge of any pollutant’ there is no violation of the Act, and point sources are not statutorily required to seek or obtain a NPDES permit.” The Court’s language reminds me of another phrase – while not coined – oft repeated by another great philosopher in my life – my Mom: “The more things change, the more they stay the same.” Compare the Court’s writing to the following language in the original, 1973 CAFO regulations: “dry (litter) operations, for lack of a discharge subject to the Act, will not be subject to NPDES permit requirement” (38 Federal Register 18001).
The Court further affirmed that stormwater run-off from a field at a CAFO fertilized with litter qualified for the agricultural stormwater exemption (i.e., was not a discharge) under the Act, so long as the following practices were followed:
- Site specific conservation practices were followed to control run-off of pollutants.
- Appropriate protocols were established testing litter (or manure) and soils.
- The litter (or manure) is applied in an agronomically sound manner to ensure crop utilization of nutrients.
- Specific records are kept documenting the above items.
These two actions – requiring an actual discharge for a permit and defining what constitutes ag stormwater (and, therefore, not a discharge by definition) – clearly opens the door for virtually all poultry producers to avoid burdensome NPDES permitting. However, do not presume the industry is back to its pre-2003 status on NPDES permitting. While formal nutrient management planning and implementation have become an established part of our business, the need for fully implementing and documenting plan components is crucial for protection of a farm. Otherwise, how can a grower demonstrate the conditions the Court proscribed to qualify for the ag stormwater exemption?
Suppose a fish kill occurs downstream of two poultry farms. At the first farm, the grower has carefully documented and recorded the use of litter and nutrient management planning, achieving the Court’s standards for the ag stormwater exemption. At the second farm, which could be implementing even better nutrient management techniques as the neighbor, there is no documentation of these efforts. Guess which one is presumed to have an illegal discharge? Further, since enforcement will largely be complaint-driven, agencies will use such occurrences as examples to other growers, and severe penalties will be applied. Bottom line for any grower: adopt and implement nutrient management practices – and document the practices!
Another practice that can result is unwanted attention and exposure is temporarily storing litter outside prior to land application. If it rains, and the litter pile is uncovered, you have what EPA has dubbed “a crude liquid manure handling system.” If run-off from that litter pile reaches state waters, it is an illegal discharge – a discharge without a permit. Once again, regulatory agencies will use such occurrences as examples to other growers, with significant penalties. Growers should take precautions with short-term litter storage, to insure no run-off can occur by tarping, diking or other methods.
The activist groups did convince the court to increase public access in the NPDES permitting process for farms that have a discharge and therefore require a NPDES permit. This process is likely to be burdensome on EPA, states and lagoon-based animal ag systems. However, a poultry grower can easily avoid this process by implementing and documenting nutrient management planning, and therefore having positive, proactive proof of the farm’s exemption from regulation.