Proposed Revisions to CAFO NPDES Rule

EPA is seeking comment on additional options being considered for inclusion in the rulemaking to respond to the changes required by the Second Circuit Court of Appeals decision in Waterkeeper Alliance et al. v. EPA. This action supplements the June 2006 proposal to revise the NPDES permitting requirements and Effluent Limitations Guidelines (ELGs) for CAFOs. The comment period for the supplemental proposal closed on April 7, 2008.

EPA is proposing a voluntary option for CAFOs to certify to the permitting authority that they do not discharge or propose to discharge and therefore do not need NPDES permit coverage. The Agency is also proposing a framework for identifying the terms of the nutrient management plan (NMP) and offers three alternative approaches for addressing application rates of manure, litter, and process wastewater when identifying terms of the NMP to be included in the permit.

EPA is only seeking comment on issues presented in the supplemental proposal and is not reopening any other provisions of the June 2006 proposal and existing NPDES regulations or Effluent Limitations Guidelines and Standards for public comment. The Agency will respond to comments it has already received on the June 2006 proposed rule as well as those received during the comment period for the 2008 supplemental proposal when it publishes the final rule.

A final rule issued July 18, 2007 extends the deadline, establishing February 27, 2009 as the new date for newly defined CAFOs to seek NPDES permit coverage and for permitted CAFOs to develop and implement nutrient management plans (NMPs) as required by EPA’s 2003 CAFO rule.

In a February 2006 rulemaking, EPA extended the same compliance dates to July 31, 2007 (71 FR 6978). EPA revised the dates to allow time to finalize the regulations in response to the Second Circuit Court of Appeals decision in Waterkeeper Alliance et al. v. EPA, 399 F.3d 486 (2nd Cir. 2005).

The deadline extensions are necessary to allow EPA time to respond adequately to an array of public comments on issues raised by the Second Circuit’s decision before certain compliance dates take effect. The February 27, 2009, deadlines will provide additional time, after the final rule in response to Waterkeeper is promulgated, to allow States, the regulated community, and other stakeholders the opportunity to adjust to the new regulatory requirements.

On June 30, 2006, EPA published a proposed rule to revise several aspects of the Agency’s regulations governing discharges from CAFOs in response to the Waterkeeper decision. EPA proposed to require only owners or operators of those CAFOs that discharge or propose to discharge to seek permit coverage. EPA also proposed to require CAFOs seeking authorization to discharge under individual permits to submit their NMPs with their permit applications or, under general permits, with their notices of intent. Permitting authorities would be required to review the NMP and provide the public with an opportunity for meaningful public review and comment. Permitting authorities would also be required to incorporate terms of the NMP as NPDES permit conditions. The proposed rule also addressed the remand of issues for further clarification and analysis. These issues concern clarifications regarding the applicability of water quality-based effluent limitations (WQBELs); new source performance standards for swine, poultry, and veal CAFOs; and “best conventional technology” effluent limitations guidelines for fecal coliform.

On February 28, 2005, the Second Circuit issued its decision in Waterkeeper Alliance et al. v. EPA, 399 F.3d 486. EPA is currently updating the CAFO rule to reflect the changes requested by the Court. Below are several documents related to the Second Circuit Court decision: