By Eldon McAfee, IPPA legal counsel; Beving, Swanson & Forrest, P.C.
Posted Feb. 8, 2010
On Jan. 22, Region 7 of the federal Environmental Protection Agency (EPA) in Kansas City sent a letter to approximately 10 Iowa pork and dairy producers who have confinement operations requesting information about their livestock farms. The letter states that EPA has authority under section 308 of the Clean Water Act “to request information from any person to determine compliance with the CWA.”
It appears that this letter is intended by EPA to determine whether any confinement feeding operations in Iowa are required to have federal discharge permits (National Pollution Discharge Elimination System or NPDES permits). Some of the producers who received the letter have had an accidental manure discharge/spill while others have not. The information requested pertains to manure management plans, construction permits, manure storage volume and land application of manure since Nov. 30, 2009, and before April 15, 2010. From the information requested, it appears EPA is for the most part interested in land application of manure, particularly during the winter months.
Any producer who received this letter must respond. As the letter states, the Clean Water Act requires anyone receiving such a letter to respond and there can be monetary penalties for not responding. It is very important that responses be carefully prepared with the assistance of legal or other advisors or consultants who fully understand federal Clean Water Act requirements.
Background on NPDES Permits and Confinement Operations in Iowa
Under federal regulations, a concentrated animal feeding operation (CAFO) (in general, an animal feeding operation that has more than 1,000 animal units, which is 2,500 head of finishing swine) must obtain an NPDES permit only if the CAFO discharges or proposes to discharge. A CAFO proposes to discharge if it is designed, constructed, operated or maintained such that a discharge will occur.
For Iowa confinement livestock producers, there are essentially three main considerations under federal NPDES permit requirements.
1. Manure storage. Iowa law requires confinement feeding operations (animal feeding operations in which livestock are confined to totally roofed areas) to retain all manure produced by the operation between periods of manure application. Thus, a discharge permit should not be required of a confinement operation because Iowa law prohibits discharges from the manure storage structures.
2. Manure application. A discharge also includes discharges from land application of manure. However, Iowa law requires that all manure be applied so as to not cause water pollution. In addition, while land application discharges may require an NPDES permit, an NPDES permit is not required for any discharge from land application if the discharge is an “agricultural stormwater discharge.” To qualify as an ag stormwater discharge, a CAFO must apply manure in compliance with a site-specific nutrient management plan. Accordingly, an NPDES permit should not be required for a confinement operation with a manure management plan.
3. Accidental discharges. In information published with the Final CAFO rule in the Federal Register on Nov. 20, 2008, EPA stated that if the cause of a past discharge, including an accidental discharge, has been changed or corrected, the CAFO would not be considered to discharge or propose to discharge and an NPDES permit would not be required due to the accidental discharge. Thus, for example, if a CAFO has had an accidental discharge, such as from manure handling or land application, no NPDES permit would be required if the cause of the discharge has been changed or corrected.
Finally, a lawsuit has been filed in federal court challenging EPA’s “propose to discharge” requirement under the argument that the Clean Water Act prohibits discharges to waters of the U.S. by a CAFO, but does not require an NPDES permit unless a discharge occurs. A recent federal administrative law judge opinion (the Lowell Vos feedlot case from Woodbury County) and a federal appeals court case from North Dakota, as well as the 2005 Waterkeeper federal court decision emphasize that an NPDES permit is required only if there is a discharge of pollutants to waters of the U.S.
IPPA will continue to monitor EPA’s inquiries and update producers as more information becomes available.
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