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It may broaden regulatory authority too far and has too tight of a compliance deadline. These are the concerns of livestock industry stakeholders about the U.S. Environmental Protection Agency's concentrated animal feeding operation (CAFO) rule, which is currently being revised to comply with a federal court's ruling.

The 2nd Circuit Court of Appeals ruled last year that the U.S. EPA is not authorized under the Clean Water Act to require CAFOs to apply for National Pollutant Discharge Elimination System (NPDES) permits based on their potential, rather than actual, discharge of manure. The U.S. EPA is now rewriting the CAFO rule and while it hasn't been released yet, concerns are that it may not follow the court's ruling that CAFOs that do not discharge do not need a permit, said Adam Sharp, Ohio Farm Bureau's director of national affairs.

Sharp, David White, OFBF's director of commodity relations, and OFBF President Bob Peterson met recently with officials of the U.S. EPA's Region 5 office to discuss the CAFO rule. Also attending the meeting in Chicago were Farm Bureau leaders from Indiana, Illinois, Michigan, Minnesota and Wisconsin.

"We want EPA to simply adhere to the court's ruling that only those who actually discharge have to work through the CAFO permitting process," Sharp said. "It appears they may take a more broad approach to CAFO permitting and require some form of reporting from farms that have the potential to discharge."

A concern is that the U.S. EPA would require all CAFOs to submit paperwork about their operations and then the agency would determine which CAFOs need the NPDES permits. Farm Bureau believes only those operations that actually discharge should be required to file any type of paperwork.

"Farm Bureau wants a tightly written CAFO rule that leaves little room for interpretation and follows the 2nd Circuit Court's ruling," Sharp said.

Another concern is about two of the CAFO rule deadlines. The U.S. EPA had previously proposed extending certain compliance deadlines from early 2006 to March 30, 2007. In publishing its final rule for these compliance deadlines in early February, the agency extended the deadline to July 31, 2007.

"We’re glad they extended it even further. However, this remains problematic as it still does not give producers enough time to prepare for and submit their applications," said White, who also serves as executive director of the Ohio Livestock Coalition. States also wouldn't have enough time to adequately incorporate the revised rule into their programs, he said.

The new deadline for developing and implementing a nutrient management plan (NMP) was also changed from the proposed March 30, 2007, to July 31, 2007. White said it is not practical to require an operation to develop and implement a NMP at the same time the operation is seeking permit coverage. "You need the permit first so you will know what is going to be required of your operation," he said.

"We need to have those two deadlines pushed back. It's too short of a time frame for farmers to learn what they need to submit to EPA and come up with a NMP plan," Sharp said.

Agriculture leaders from the five other states raised several concerns about the revised CAFO rule, including implementation costs and confidentiality of the information gathered by the U.S. EPA.