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This is a highlight story from the current issue of WaterWeek, a weekly e-newsletter provided as a benefit of Utility Membership. Complete issues are accessed via e-mails sent to qualified readers. Final revised CAFO Rule is okayedUSEPA finalized a revised rule for protecting surface water quality by controlling discharges from concentrated animal feeding operations (CAFOs), responding to a 2005 court decision that struck down a portion of the original 2003 rule. The revisions add a requirement for CAFOs that already are required to apply for a National Pollutant Discharge Elimination System permit under the Clean Water Act to also include their nutrient management plan (NMP) with the application. Under the revised rule, unpermitted CAFOs have a voluntary option to apply for certification that they are not required to seek a NPDES permit. In the 2005 ruling (Waterkeeper Alliance, et al v. EPA), the US Court of Appeals 2nd Circuit rejected the original CAFO Rule's requirement that any CAFO with a "potential" of discharging into waters covered under the CWA must apply for a NPDES permit. The CWA only authorizes USEPA to require permits for actual discharges, not potential discharges, the court held. Hence, in its revision, USEPA made three changes:
The revised rule clarifies that "a CAFO proposes to discharge if, based on an objective assessment, it is designed, constructed, operated, or maintained such that a discharge will occur, not simply such that it might occur." The rule also states, "Any discharge from a CAFO, even one that is unplanned or accidental, is illegal unless it is authorized by the terms of a permit or is agricultural stormwater." Ben Grumbles, USEPA water chief, said the revised rule "strengthens environmental safeguards by embracing a zero-discharge standard and requiring site-specific management plans to prevent runoff of excess nutrients into our nation's water." The agency posted a fact sheet and a prepublication version of the finalized rule on its Web site and announced the action on Oct. 31, but has not yet published it in the Federal Register. USEPA has scheduled a webcast about the final CAFO Rule for Nov. 19. The National Resources Defense Council's statement charged that the rule creates a huge loophole ― "If an operator certifies that the facility won’t have a discharge, environmental authorities will ignore enforcement action." The American Farm Bureau's statement said, "The rule contains substantial improvements in water quality protection, and may improve water quality as a result. We are encouraged that the rule includes a number of incentives for livestock farms to operate at high levels of environmental compliance. A positive aspect is that livestock farmers will have flexibility to evaluate their farm and determine whether or not to secure a permit. Regardless of the farmer’s decision, there is no doubt they will have to meet challenging environmental standards." The National Pork Producer's Council called it a "tough but fair" rule and one that pork producers have been and will continue to abide by. During AWWA's Nov. 12 webcast, “The New Administration: A Forecast,” former USEPA water chief Tracy Mehan said he thought the CAFO final rule "is not as robust as it should be." The Obama administration is expected to be "more aggressive and proactive" on environmental regulations, he said, speculating that the CAFO Rule could be revisited at a later time. Efforts by the animal feeding industry in both the 110th and 109th congresses to amend the Superfund laws to exempt manure from cleanup requirements met with opposition from AWWA and other water associations. Those bills all died in committee. Additional AWWA Resources:
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