EPA Finalizes Long-Awaited CAFO Clean Water Act Rule

After a decade of discussion, EPA has published a long-awaited rule governing waste discharges from concentrated animal feeding operations (“CAFOs”) under the Clean Water Act (“CWA”).[1] The rule addresses the circumstances under which CAFOs must apply for wastewater discharge permits under § 402 of the CWA, and the method and requirements for doing so.

The new rule establishes a procedure for CAFOs to self-certify that they will not discharge waste subject to the program and therefore need not apply for a permit. However, it does not shield CAFOs from liability if a discharge occurs.

Background

Section 301 of the CWA prohibits anyone from discharging pollutants from a point source into waters of the United States without a valid permit.[2] The National Pollutant Discharge Elimination System (“NPDES”) permit program under CWA § 402 applies to discharges of pollutants from point sources.[3] The CWA expressly includes CAFOs in the definition of a “point source,”[4]and EPA has issued detailed rules that define when a facility is a CAFO.[5]

In 2003, EPA promulgated a rule that required all owners or operators of CAFOs to apply for NPDES permits, unless they could demonstrate that there was no potential to discharge.[6] Members of the regulated community brought suit to challenge this “duty to apply” portion of the rule, and environmental groups challenged other aspects of the 2003 rule. In a 2005 decision, Waterkeeper Alliance v. EPA,[7] the Second Circuit Court of Appeals held that the CWA does not authorize EPA to require CAFOs to obtain NPDES permits unless there is an actual, rather than potential discharge. The court also held that the 2003 rule allowed the issuance of permits without a meaningful review of a CAFO’s nutrient management plan (“NMP”), failed to require CAFOs to include the terms of the NMP as effluent limitations in the NPDES permit, and violated public participation requirements in the CWA.[8]

EPA responded to the Waterkeeper decision with a 2006 proposed regulation that amended the “duty to apply” rule by requiring only CAFOs that “discharge or propose to discharge” wastewater to apply for NPDES permits.[9] The 2006 proposal also sought to require CAFOs seeking permits to submit NMPs for review by permitting authorities and by the public, and to include terms of the NMP as NPDES permit requirements.[10]

Earlier this year, EPA published a supplemental proposed rule to clarify the circumstances when an NPDES permit is needed.[11] The voluntary certification procedure proposed in that rule attempted to provide a structured, objective set of criteria for owners and operators of CAFOs to follow as they determine whether to apply for a permit, but left unchanged the duty for CAFOs to apply for NPDES permits if they discharge or propose to discharge.

Self-Certification of No Discharge

The final rule adopts the voluntary certification option from the 2008 supplemental proposal, with some changes based on the comments received on the proposal.[12] As adopted, the rule includes three eligibility criteria that a CAFO must meet to become zero-discharge certified. The first two criteria address “the existing physical and operational conditions at the CAFO,” and also require the CAFO to make accommodations that will address changes at the facility.[13] First, a CAFO owner or operator must evaluate the production area design, construction, operation, and maintenance to show that there will not be a waste discharge.[14] Given the differences in production area designs, the method of evaluation will depend on the type of containment system used in the operation. The new rule contains two parts for this criterion, corresponding to open manure storage structures, and “any part of the production area not considered to be open containment.”[15] Second, a CAFO owner or operator must develop, implement, and maintain an NMP that complies with specified regulatory requirements, and ensures that no discharges – apart from agricultural stormwater discharges – will occur from the facility. To retain certification, a CAFO owner or operator must revise its NMP if any of the design specifications, practices, or other NMP provisions change over time.[16] The third criterion requires a CAFO owner or operator to maintain documentation underlying the certification either on site, at a nearby location, or where it can otherwise be made available upon request.[17] The CAFO owner or operator must then submit a statement describing the basis for satisfying these criteria, along with five elements that identify the facility.[18] Upon submission of the certification, subject to timing requirements established by the state permitting authority, a certification is deemed proper – EPA need neither review nor approve the certification, although it may request additional necessary information or conduct inspections under CWA § 308.[19] The final rule does not require submission of the NMP (which CAFOs must keep on site) or require public comment on the certification or the supporting documents.

The rule includes a rebuttable presumption that will create at least some protection for a CAFO that fails to apply for a permit prior to a discharge. EPA added a provision that a properly certified CAFO is “presumed” not to propose to discharge.[20] The effect of the presumption is that it shifts to EPA the burden to establish that a CAFO “proposed to discharge.”[21] In contrast, an uncertified CAFO – or a CAFO that has not renewed its certification within five years – that is subject to an enforcement proceeding for failure to seek permit coverage “would have the burden to establish that it did not propose to discharge prior to the discharge.”[22] Certification would not, however, exclude CAFOs from liability if a discharge occurs. In addition to the possibility of EPA meeting its burden regarding whether the CAFO “proposed to discharge” notwithstanding the certification, the CAFO owner or operator would still face potential enforcement under CWA § 301, which imposes injunctive relief and penalties for unpermitted discharges. In addition, citizens could seek to hold a CAFO with an unpermitted discharge liable under the citizen suit provision in § 505 of the CWA.[23] In other words, certification creates a rebuttable presumption that the CAFO is not liable for failing to obtain a permit, but leaves open the possible liability for an unpermitted discharge.

Nutrient Management Plans Required in Permits

The Waterkeeper court vacated the 2003 rule to the extent that it allowed permitting authorities to issue NPDES permits without reviewing the NMPs or allowing for public comment on the NMPs. In response, EPA’s final rule revises the 2003 rule by requiring the permitting authority to review the NMP prior to issuing a permit, allowing for adequate public participation prior to issuing an individual permit or granting coverage under a general permit, incorporating the terms of the NMP in the permit, and providing a procedure for addressing changes to the NMP after the permitting authority grants permit coverage.[24] The final rule focuses on these issues in relation to general permits, because most CAFOs are covered by general permits and EPA previously did not require review and public participation of NMPs in granting coverage under general permits.[25]

Other Aspects of the Rule

The final rule also responds to various elements of the Waterkeeper decision involving the circumstances where an unpermitted Large CAFO may have precipitation-related discharges qualify as agricultural stormwater discharges, which are exempt from permitting requirements under the CWA, the applicability of water-quality based effluent limitations for CAFO discharges that are not exempt as agricultural stormwater, new source performance standards for swine, poultry, and veal calf CAFOs at no discharge, and BCT limitations for fecal coliform.

Conclusion

Some members of the agricultural community have characterized the new rule as “tough but fair.”[26] EPA’s rule will require NMPs to be part of NPDES permits and provide the opportunity for public comment on this element of permits. The certification procedure provides a means whereby regulated entities can undertake a reasoned analysis of whether they need to apply for an NPDES permit. Although a properly-conducted certification will provide CAFOs with a presumption that they do not need an NPDES permit, the rule allows EPA to rebut this presumption and issue penalties for failure to obtain a permit. The new rule takes effect on December 22, 2008.

For more information on the EPA’s final rule, please contact Meline MacCurdy or any member of Marten Law Group’s Water Quality practice group.