Menu

The U.S. Environmental Protection Agency (EPA) has proposed new regulations for large livestock farms after a federal court ruled that the agency overstepped its authority.

Under the new rules, only concentrated animal feeding operations (CAFOs) that actually or propose to discharge pollution would have to apply for discharge permits. In 2003, EPA had said all CAFOs must obtain National Pollution Discharge Elimination System (NPDES) permits based solely on their potential to discharge.

At the time, American Farm Bureau Federation equated the rules to requiring a person to have a driver's license even though that person never intended to drive. Following challenges from environmental and agricultural groups, the Second Circuit Court ruled last year that EPA had exceeded its authority under the Clean Water Act.

While the EPA's new rules are an initial step in the right direction, big questions still remain for farmers, said Adam Sharp, OFBF director of national affairs.

"The definition of a discharge is something that is yet to be clearly defined," he said. "Farm Bureau will continue to be engaged to further define what a discharge means under this rule."

The EPA could consider anything less than 100 percent containment of manure during production or land application to be a discharge, said David White, executive director of the Ohio Livestock Coalition, to which OFBF belongs.

However, there is an exemption that applies if the only discharge from land application is agricultural stormwater. In order to comply with the exemption, farmers must follow an approved Nutrient Management Plan (NMP), apply nutrients at agronomic rates and maintain adequate records.

"EPA is going to interpret the stormwater exemption by the book. They expect all sizes of farms to abide by it," White said.

Farmers who discharge pollution without an NPDES permit and are not covered under the stormwater exemption could face penalties of $25,000 per day.

"If they want to keep themselves out of a permit situation, they need to evaluate their manure management practices," White said. "What appears to be a very simple practice is becoming more complicated and there is no silver bullet."

Also in question is how EPA will define if farms "propose" to discharge pollution, which would require a permit. Under the 2003 rules, simply storing manure meant that a farm had the potential to discharge. White questions whether owning a manure spreader indicates that a farm proposes to discharge.

CAFOs seeking an NPDES permit must implement NMPs, which would be open for public review. NMPs for nonpermitted facilities could be made public if EPA or others question a farm's discharge. Sharp said it will likely be in the best interest of all CAFOs to implement NMPs and keep records, because their production practices may be called into question.

Unhappy with the new rules, environmental groups are pushing for nonpermitted CAFOs to prove that they do not discharge. In doing so, farms would have to make their operating records available to the public.

"Opposition groups want farms to go through a permitting process in order to prove they don't need a permit," Sharp said. He added that he expects more challenges to the rules and said OFBF will continue to be involved.

"We have interacted more with EPA Region 5 in the last year than we have in the last five years," White said. "The only way to resolve issues and to address changes is to have a relationship and talk."