Anyone familiar with the poultry industry knows by now that the new Concentrated Animal Feeding Operations (CAFO) rule was finalized in November 2008 and became effective on February 27, 2009. One issue that drove the revision of the CAFO rule was a decision by the U.S. Court of Appeals for the 2nd Circuit in Waterkeeper Alliance et al. v. EPA. Prior to the revision, the CAFO rule required the owners or operators of all CAFOs to seek coverage under a National Pollutant Discharge Elimination System (NPDES) permit unless they demonstrated no potential to discharge.
The court set aside this requirement and explained the "duty to apply" provision was not valid because the Clean Water Act regulates actual discharges rather than potential discharges. Although it is speculation on my part, my guess is the EPA was not entirely happy with the decision by the 2nd Circuit Court when it removed the "duty to apply" provision of the previous CAFO rule. I further speculate the EPA saw this as a hindrance to increase the number of CAFOs required to obtain an NPDES permit.
EPA strengthens enforcement
Following this ruling the EPA returned to the process of developing a CAFO rule that would abide by the 2nd Circuit Court's decision. The new CAFO rule, issued in November, replaced the requirement that all CAFOs apply for a permit with the requirement that only CAFOs who discharge or propose to discharge must apply for a permit. The rule goes on to delineate that a CAFO proposes to discharge if it is "designed, constructed, operated or maintained such that a discharge will occur."
Upon reading the rule when it was issued, the general thought was that it would not have an impact on a large percentage of the poultry industry. We concluded that a majority of dry litter operations would not need a permit, especially in light of the fact that the EPA kept the agricultural storm water exemption in the rule. However, a few months and a couple of EPA Region 3 informational meetings later our impression changed.
It became apparent that the EPA was prepared to use a more aggressive enforcement policy to achieve its goal of increasing the number of poultry farms operating with an NPDES permit. Considering the EPA publicly renewed its priority to see that CAFOs comply with the Clean Water Act and that a report released by the Congressional Research Service in March of this year identified EPA's strategy for CAFOs and nonpoint sources of pollution from agriculture as two of the most significant areas of focus for legislative action and oversight, we should not be surprised.
Common ground identified
In light of what we saw happening, we felt it would be beneficial for a group that represents a large portion of the poultry industry to schedule a meeting with the EPA Office of Water and Office of Enforcement and Compliance Assurance. The meeting was productive from the standpoint that we were able to generally identify common ground on some issues and ways to develop partnerships to address other issues.
One area of common ground identified was the management of litter removed from grow out houses and the practice of stockpiling litter unprotected from wind and precipitation. Now if this story seems familiar, you are right. A few years back my predecessor and the current president of USPOULTRY, John Starkey, addressed this same issue with the EPA. Like our group, he and a group of individuals representing the poultry industry heard from the EPA that the stockpiling of litter unprotected is an unsuitable practice and the continuation of this practice will bring additional scrutiny.
The fact that this issue is still on the EPA's radar screen after a number of years have passed tells us that it will not go away. To be clear, although some states still allow poultry litter to be stockpiled in an unprotected fashion for durations that vary, most, if not all, poultry integrators maintain the position that this practice is undesirable.
Russ Dickson, environmental compliance and engineering manager for Wayne Farms, outlined his company's position and stated: "Wayne Farms requires all growers to comply with the environmental laws and regulations. This includes keeping stored poultry litter from exposure to storm water and storm water runoff prior to its approved use as a crop fertilizer."
Now, I am aware that research has been performed to evaluate nutrient losses from unprotected stockpiles of litter and some research indicates there is no significant difference in the amount of nitrogen lost when comparing covered litter piles to uncovered litter piles. However, let's return for a moment to our earlier discussion about a CAFO owner's requirement to apply for a permit.
Nutrient amount doesn't count
Among other requirements, the owner or operator must apply for a permit if a CAFO is not operated or maintained such that a discharge will occur. The determination of a CAFO's adherence to this requirement will be made by the regional administrator and history tells us the individual making this decision will determine the CAFO was not operated or maintained in a manner to prohibit a discharge simply due to the existence of an unprotected litter pile. It makes no difference if there is no significant difference in the amount of nutrients lost. According to the Clean Water Act the loss of any amount of nutrients is a discharge if it flows into a water of the U.S.
On April 21, 2009, a documentary titled "Poisoned Waters" aired on PBS. The documentary discussed the environmental problems surrounding the Chesapeake Bay and Puget Sound. If you didn't see the program you can probably guess it did not cast a positive light on the poultry industry. Although producers gave our industry an opportunity to respond, the message was diluted.
In spite of all the efforts by our industry to operate in an environmentally responsible fashion, the program gave the perception our industry operates without regard to the environment. It's to this perception that our industry must respond on a daily basis and refusing to surrender an unnecessary practice that looks bad lends credibility to their story. Phasing out this practice can at least partially restore our public image. We can then move forward to transform the perception that's been forced upon us to reality the industry's respect and awareness for the environment.