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The new CAFO rules are here, the new CAFO rules are here!

By Jim Chen at al.

After a long wait, the final post-Waterkeeper regulations under the Clean Water Act for concentrated animal feeding operations have been promulgated and should appear shortly in the Federal Register. For now, the rule can be found here.

A few highlights:

As expected, the regulation provides a self-certification measure for CAFOs that will not, or will propose not to, discharge pollutants. The explanatory material is very clear, however, in stating that EPA is implementing a zero discharge regime for unpermitted CAFOs. Thus, even if an existing CAFO is utilizing best management practices and complies with the 25-year, 24-hour design standard, it will be in violation of the CWA if it discharges. And, from what I can tell, if it is foreseeable that a discharge will occur, it has a duty to apply for a permit. A variety of eligibility criteria are included for this option, and there are documentation requirements that a certifying CAFO must maintain, including data on the design, construction, operation and maintenance of any open manure storage structures that satisfies the technical evaluation elements that apply to new sources. In other words, it appears to me that the self-certification option is limited and not without costs.

The application deadline has not changed from February 27, 2009, for operations defined as CAFOs in the 2003 rule.

The nutrient management plan must contain a wealth of information, but the notable addition is the method for determining the application rates that must be included. The rules allow for a linear approach that expresses the rates of application in pounds of nitrogen and phosphorous to be applied to each acre, per year, for each field. The rules also allow for a narrative rate approach that expresses the application rate narratively and results in amount of manure, litter, and process wastewater to be applied. Interestingly, the latter approach must involve projections about crop rotation, projected amounts of waste to be applied, credits for all available nitrogen, and other matters. While those projections must be included in the nutrient management plan, under the regulations they are not considered terms of the nutrient management plan and, thus, are not effluent limitations.

Of course, I've barely scratched the surface on these regulations.

Full post as published by Agricultural Law on November 04, 2008 (boomark / email).