“Who, me?” That's the question being asked by cattle producers as they pick through the sweeping changes in Environmental Protection Agency (EPA) regulations governing livestock feeding operations.
“EPA has indicated that too many feedlots escape the permit process. It plans to tighten perceived loopholes by lowering the threshold for animal feeding operations,” says Greg Ruehle, executive vice president of the Nebraska Cattlemen.
The changes could even include cow/calf wintering areas or other facilities historically considered non-point sources and not regulated under the Clean Water Act, according to Ruehle.
EPA's overall national strategy to clean up the nation's waters includes measures requiring that all animal feeding operations (AFOs — see sidebar for definitions) implement site-specific plans to minimize their impact on water quality and public health. The agency has issued formal notice of revisions to regulations currently administered through the National Pollutant Discharge Elimination System (NPDES), specifically as related to “concentrated” animal feeding operations (CAFOs).
CAFOs are considered point sources of pollution and, therefore, are subject to the permitting process. Today, a CAFO is defined as having 1,000 or more cattle or comparable animal units of other livestock. But, that definition may change, and most U.S. cattle producers could find themselves walking a tightrope between AFO and CAFO regulations.
Two CAFO Proposals
On the surface, EPA's 404 pages of proposed changes appear to target the nation's largest poultry, pork and cattle feeding operations. It outlines two options for a new CAFO definition.
One would include AFOs with 500 or more cattle. The other would include AFOs with 1,000 head, or those with 300-1,000 cattle if they meet a complicated set of risk-based conditions.
Even an AFO with less than 300 head though could be designated a CAFO by the EPA if it's determined the operation is a significant polluter.
While EPA administrators say these changes are needed to update regulations that are more than 20 years old, Ruehle puts a different spin to EPA's motives.
“At least a portion of the proposed changes are part of a settlement for a lawsuit against EPA by their ‘friends’ at the Natural Resources Defense Council for failure to comply with the federal Clean Water Act,” explains Ruehle. The suit alleged that EPA failed to rewrite the “effluent limitation guidelines” for feedlots and other livestock operations.
“Whatever the motive, this rulemaking will be of tremendous importance to cattle producers across the country,” adds Ruehle, noting the formal comment period ends May 14.
He urges all cattle producers to take a close look at how the regulations will affect them and then work with local livestock groups to respond to the EPA before the end of the 120-day comment period (see “File Your Comments,” page 30).
Lowering The Bar
The proposals clearly lower the bar and include smaller operations, says Brice Lee, Hesperus, CO.
“This change would exponentially increase the number of animal feeding operations that are subject to permits,” says Lee, chairman of the National Cattlemen's Beef Association's (NCBA) property rights and environmental management committee.
EPA estimates the new requirements would apply to as many as 39,000 CAFOs across the country. An estimated 2,500 livestock operations currently have enforceable NPDES permits.
Lee says NCBA is poised to submit comments on the proposed regulations and urges a final rule that's based on sound science and also considers costs associated with compliance.
EPA has projected the total cost impact of the new regulations at $850-$940 million. That puts the average cost of compliance/operation at around $25,000/year. However, Bobbie Frank, Cheyenne, WY, executive director of the Wyoming Association of Conservation Districts (WACD) says the cost may be much higher.
For several years, WACD has worked through local conservation districts to help producers comply with the EPA's current AFO/CAFO regulations.
“CAFO producers have to provide for containment of all of their wastes,” Frank says. “With our projects, the initial cost to do this averages around $50,000. These new regulations will be expensive for producers — even many small cattle ranchers.”
As Frank and her crew travel around Wyoming, she says landowners are shocked when they discover they fall into the AFO definition under the existing regs. “They'll be appalled when they take a good close look at these new regs,” she says.
A Presumption Of Pollution
Virtually every cattle operator will have to prove whether or not they are an AFO — and then whether they fall into a CAFO designation, Frank says.
“There's a presumption by EPA that if you have a livestock facility you are polluting water — until you can demonstrate that you are not,” says Frank. “Every producer will have to certify that they are not a CAFO in order to avoid permitting requirements.”
Any runoff — from any set of corrals to surface waters or even from winter feeding and winter pasturing areas — could put a rancher into a CAFO designation. And, every piece of land you might put manure on might have to be part of the permit, she says.
Every producer will have to certify that they are not a CAFO in order to avoid permitting requirements. — Bobbie Frank
EPA says there will be no “shield from liability” for any operation that falsely certifies that it met the conditions to be excluded from regulation. Operations would be put on notice. If they have any doubts about their continued ability to meet the conditions for exclusion they should decline to “certify out” and should apply for a permit.
One of the biggest ambiguities of the proposed regulations is this business of range and pasture feeding.
Faith Burns, Washington, D.C., is NCBA's associate director for environmental issues. She says animals are not considered to be “confined” when they are in pastures and rangelands that sustain crops or forage growth during the entire time animals are present.
It's the ambiguity of this part of the regulations that bothers Burns the most.
“The EPA says it does not ‘intend’ to include pastures and grazing land under the regulations,” she explains. “However, if EPA intends to exclude pastures and rangelands, they need to write the rules differently.”
Burns says cow/calf producers may be required to establish whether or not a hydrologic connection exists between groundwater and surface water. Also, operators may need a permit if “pollutants” are discharged directly into waters of the U.S.
“If the hydrologic connection exists, you may be required to obtain a permit,” says Burns.
“There's no question there are problems that need to be addressed, and we have no problem telling producers that they shouldn't have a creek running through their corrals,” WACD's Frank adds. “At the same time though, when we see regs like these being proposed, we're going to fight like hell to see they get changed.”
AFO — Animal Feeding Operation.
The term “animal feeding operation” or AFO is defined in EPA regulations as:
A lot or facility where animals are, have been or will be stabled or confined and fed or maintained for a total of 45 days or more in any 12-month period;
And, a place where crops, vegetation forage growth or post-harvest residues are not sustained in the normal growing season over any portion of the lot or facility.
Winter feeding of animals on pasture or rangeland is not normally considered an AFO.
Proposed Changes In The Definition:
A lot or facility where animals have been, are, or will be stabled or confined and fed or maintained for a total of 45 days or more in any 12-month period.
Animals are not considered to be stabled or confined when they are in areas such as pastures or rangeland that sustain crops of forage growth during the entire time that animals are present. Animal feeding operations include both the production area and land application area.
CAFO — Confined Animal Feeding Operation.
Under current law, a CAFO is defined as an animal feeding operation (AFO) with 1,000 or more cattle. No operation is a CAFO if it discharges only in the event of a 25-year, 24-hour storm.
An AFO that confines 300-1,000 head is a CAFO if it discharges pollutants through a manmade structure, or if pollutants are discharged to waterways that run through the facility or come into contact with confined animals.
The authority that issues NPDES permits also may designate any AFO, including those with fewer that 300 head, as a CAFO if it is a significant source of water pollution.
Proposed Changes In the Definition:
EPA is asking for comments on two alternative structures for defining CAFOs:
A three-tier structure in which an AFO is a CAFO if it has more than 1,000 head, or if it has 300-1,000 head and meets certain conditions; or, if the permit authority designates the facility. All facilities with 300-1,000 head must either certify that they do not meet the conditions for being defined as a CAFO or must apply for a permit.
A two-tier structure in which an AFO is a CAFO if it has 500 head or more. Facilities with fewer than 500 head may become CAFOs if designated by the permit authority.
File Your Comments
You can obtain a copy of the proposed revisions to the National Pollutant Discharge Elimination System (NPDES) regulations and effluent guidelines for CAFOs by contacting most state livestock associations. The regulations are also posted on the Environmental Protection Agency (EPA) Office of Wastewater Management's Web site at http://www.epa.gov/owm/afo, and the National Cattlemen's Beef Association at http://hill.beef.org.
Send your comments to EPA by e-mail to CAFOs.firstname.lastname@example.org, or mail to Concentrated Animal Feeding Operation Proposed Rule, USEPA Office of Water, Engineering and Analysis Division (4303), 1200 Pennsylvania Ave., NW, Washington, D.C. 20460.
Submit any references cited in your comments. When mailing, submit an original and three copies of your written comments and enclosures. It is strongly suggested that you contact organizations of which you are a member to find out if the organizations are commenting on the proposed regulations.
You also can contact the CAFO Hotline at 202/564-0766.