United States
Environmental Protection
Agency
NPDES PERMIT WRITERS' GUIDANCE MANUAL
AND EXAMPLE NPDES PERMIT
FOR
CONCENTRATED ANIMAL FEEDING OPERATIONS
December 31, 2003
United States Environmental Protection Agency
Office of Water
Office Wastewater Management
Water Permits Division
EPA-833-B-04-001
-------
-------
AND
FOR
December 31, 2003
United States Environmental Protection Agency
Office of Water
Office of Wastewater Management
Water Permits Division
Washington, B.C. 20460
EPA-833-B-04-001
-------
-------
CONTENTS
1.0 INTRODUCTION[[[1-1
1.1 Introduction[[[ 1-1
1.2 Background[[[ 1-1
1.3 What Is the Purpose and Organization of this Guidance? ,.....,....,....,,....,....,....,,....,... 1-3
2.0 WHAT PERMITTING STRATEGIES ARE APPROPRIATE FOR CAFOs? ..............................2-1
2.1 NPDES General Permitsfor CAFOs[[[2-1
2.1.1 Watershed-based NPDES permits 2-1
2.1.2 How is an NPDES general permit for CAFOs developed and
implemented[[[2-2
2.1.3 How do CAFOs permit coverage under an NPDES general permit? ..... 2-2
2.1.4 How the permitting authority manage NOIs?.......................................... 2-3
2.2 Individual NPDES Permits for CAFOs[[[2-3
2.2.1 Which CAFOs should be covered by individual NPDES permits?.................. 2-4
2.2.2 How are individual NPDES permits developed?..............................................2-4
3.0 WHICH FACILITIES ARE TO UNDER AN
PERMIT7[[[3-1
3.1 Which Operations Are Defined as Animal Feeding Operations? 3-1
3.2 Which AFOs Are Defined as Concentrated Animal Feeding Operations? 3-5
3.2.1 What of animal operations are covered by the regulation? .................. 3-5
3.2.2 Which AFOs are defined as Large CAFOs[[[ 3-5
3.2.3 What practices constitute a liquid manure handling system at poultry
operations[[[3-6
3.2.4 Which AFOs are defined as Medium CAFOs? ................................................ 3-7
3.2.5 Which AFOs can be designated as CAFOs[[[ 3-9
3.2.6 What are the factors to be considered and the for designating
an AFO as a CAFO? 3-10
-------
3.3.3 Which CAFOs are new sources? 3-16
3.3.4 Which operations are considered newly defined and new dischargers? 3-17
3.3.5 What is the "no potential to discharge" determination?................................3-18
4.0 WHAT ARE THE OF AN FOR A .................................4-1
4.1 What Are the Effluent Limitations and Standards for CAFOs? ................................... 4-1
4.1.1 What are the applicable technology standards for CAFOs? ........................... 4-2
4.1.2 What are the technology-based effluent limitations for Large CAFOs?.......... 4-2
4.1.3 What is the relationship between the ELG, the State nutrient
management technical standard, and the permit? ....................................... 4-10
4.1.4 What are the water quality-based effluent limitations for the
production area? 4-11
4.1.5 Do water quality-based effluent limitations apply to the land
application area[[[4-11
4.2 What Are the Special Conditions to Be Included in all NPDES Permits for
CAFOs[[[ 4-12
4.2.1 Nutrient management plan [[[4-12
4.2.2 What are the nutrient management plan minimum practices?...................... 4-14
4.2.3 What additional special conditions are applicable to NPDES permits
for CAFOs? 4-19
4.3 What are the Monitoring, Reporting, Record Keeping Requirements
of NPDES Permits for CAFOs[[[4-22
4.3.1 Record keeping requirements[[[4-22
4.3.2 Monitoring and reporting[[[4-24
5.0 OTHER CONSIDERATIONS[[[5-1
5.1 Coordination with Total Maximum Daily Load (TMDL) Programs............................... 5-1
-------
LIST OF
1-1 Consolidated Time Line for Implementing the Revised Rule..............................................1-2
2-1 Information Required on NPDES Application Forms 1 2B...........................................2-5
3-1 Large CAFOs[[[3-5
3-2 Medium CAFOs[[[3-7
3-3 Example Factors for Case-by-Case CAFO Designation [[[3-11
3-4 NPDES CAFO Permit Required Application Information 3-15
3-5 Applicability of New Source Performance Standards for NPDES Permits to
CAFOs in Subparts C and D Following Promulgation of the Revised CAFO
Regulations [[[3-16
4-1 Elements of an NPDES Permit[[[4-1
4-2 Effluent Limitations Summary[[[4-3
4-3 NPDES CAFO Permit Minimum Practices [[[4-15
4-4 USDA CNMP Elements/NPDES Minimum Practices Comparison ....................................4-17
4-5 EPA Minimum Practice/NRCS Conservation Practice Comparison 4-18
4-6 NPDES Large CAFO Permit Record Keeping Requirements ...........................................4-23
LIST OF EXHIBITS
-------
IV
-------
1.0
1.1
The Permit Writers'Guidance Manual and Example NPDES Permit for Concentrated Animal Feeding
Operations provides information to National Pollutant Discharge Elimination System (NPDES) permit
writers on permitting requirements for concentrated animal feeding operations (CAFOs). The Guidance
reflects the revisions to the NPDES and Effluent Limitation Guidelines and Standards (ELG) for CAFO
regulations (68 Federal Register (FR) 7176; February 12, 2003) that became effective on April 14, 2003,
and replaces previous guidance, including the Guide Manual on NPDES Regulations for Concentrated
Animal Feeding Operations issued in 1995.
Congress passed the Clean Water Act to "restore and maintain the chemical, physical, and biological
integrity of the nation's waters." (33 U.S. Code (U.S.C.) 1251 (a)). The Clean Water Act establishes a
comprehensive program for protecting our nation's waters. Among its core provisions, the Act prohibits
the discharge of pollutants from a point source to waters of the United States except as authorized by an
NPDES permit. The Clean Water Act also directs the U. S. Environmental Protection Agency (EPA) to
establish national technology-based effluent limitations guidelines and standards (ELGs) for different
categories of sources. Section 502 of the Clean Water Act specifically defines the term "point source"
to include CAFOs. In 1974 and 1976, EPA promulgated regulations that established ELGs for large
feedlots (CAFOs) and established permitting regulations for CAFOs. The NPDES and ELG final rule
for CAFOs, published February 12, 2003, revises the more than 25-year-old requirements that apply to
CAFOs.
1.2
Nationally, there are an estimated 1.3 million farms with livestock. About 257,000 of these farms are
considered animal feeding operations (AFOs) where animals are kept and raised in confinement. AFOs
annually produce more than 500 million tons of animal manure that, when improperly managed, can
pose substantial risks to the environment and public health. The NPDES and ELG final rules for CAFOs
(the revised rule), which were published in the Federal Register on February 12, 2003, ensure that the
largest of these operations, CAFOs, are required to apply for an NPDES permit. Among other things,
CAFOs will develop and implement a nutrient management plan as a condition of an NPDES permit.
EPA expects that the requirement to develop and implement a nutrient management plan (NMP or plan)
will generally be fulfilled where a CAFO has developed and is implementing a comprehensive nutri-
ent management plan (CNMP) in accordance with U.S. Department of Agriculture (USDA) guidance,
although this is not the only way to fulfill the NMP requirement. Plans developed and implemented as
a condition of an NPDES permit will need to be based on the applicable nutrient management techni-
cal standard established by the permitting authority. Table 1-1 provides a consolidated time line for the
implementation of the revised rule.
1-1
-------
Table 1-1. Consolidated Time Line for Implementing
Milestone
Effective date of regulation
Effective date of Effluent Guideline requirements for
the production area (applicable to Large CAFOs)
Effective date of effluent guideline requirements for the
land application area (applicable to Large CAFOs)
Effective date for all CAFOs to develop and implement
nutrient management plans
the Revised Rule
Time Frame
• April 14, 2003
• June 12, 2003
By December 3 1,2006
By December 3 1, 2006. Except for new source Large
CAFOs by date of commencing operations
Duty to Apply
Operations defined as CAFOs prior to April 14, 2003
Operations defined as CAFOs as of April 14, 2003, and
that were not defined as CAFOs prior to that date
Operations that become defined as CAFOs after
April 14, 2003, but which are not new sources
New Sources
Designated CAFOs
Must have applied by the date required in 40 CFR
122.21(c)
As specified by the permitting authority, but no later
than April 13, 2006
(a) Newly constructed operations: 180 days prior to the
time that the CAFO commences operation (b) Other op-
erations (e.g., increase in number of animals): As soon
as possible but no later than 90 days after becoming de-
fined as a CAFO, except that, if the operational change
that causes the operation to be defined as a CAFO
would not have caused it to be defined as a CAFO prior
to April 13, 2003, the operation must apply no later than
April 13, 2006, or 90 days after becoming defined as a
CAFO, whichever is later.
180 days prior to the time the CAFO commences opera-
tion
90 days after receiving notice of designation
State Program Revision
No statutory changes needed to revise NPDES Program
Statutory changes needed to revise NPDES Program
February 12, 2004
February 13, 2005
CNMPs Expected Under Voluntary/Regulatory Programs
95%
Focusing EPA's regulatory program on the largest opera-
tions that present the greatest potential risk to water
quality is consistent with the final rule and the Unified
National Strategy for Animal Feeding Operations. The
strategy, jointly developed by EPA and USD A (USEPA/
USD A, March 1999) specifies that most operations that
confine animals are and will continue to be addressed
through locally focused voluntary programs. The strat-
egy defines a national objective for all AFOs to develop
CNMPs to minimize their impacts on water quality and public health. EPA expects that the vast majority
of CNMPs will be developed under voluntary programs. The requirement in the final rule that the largest
of these operations develop and implement a nutrient management plan is also consistent with the objec-
tive of the strategy.
Voluntary
Regulatory
1-2
-------
This improved regulatory program is also designed to support and complement the array of voluntary
and other programs implemented by USDA, EPA, and States that are available to help the vast major-
ity of AFOs not addressed by the CAFO regulations. These regulations are an integral part of an overall
Federal strategy to support a vibrant agricultural economy while simultaneously ensuring that all animal
feeding operations manage their manure properly and protect water quality.
EPA and USDA have worked collaboratively to ensure that USDA's voluntary programs and EPA's
regulatory and voluntary programs complement each other and support effective nutrient management
by all AFOs. EPA and USDA will continue to coordinate the development and implementation of tools
to support agriculture in ways that reflect the different roles of the two agencies.
1.3 Is the of
This guidance provides information to NPDES permitting authorities, owners and operators of animal
feeding operations, and the general public on how to implement the Clean Water Act CAFO regulations.
This guidance focuses on permitting CAFOs by providing the following:
• Information that will help permitting authorities ensure that NPDES permits conform to the Clean
Water Act and the NPDES and ELG CAFO regulations [40 CFR Part 122 and Part 412]; and
• General information on Clean Water Act and NPDES requirements that EPA will consider when
reviewing the adequacy of State NPDES permits for CAFOs [40 CFR 123.44],
This guidance assumes that the reader has a working knowledge of how to develop NPDES permits.
Permit writers should also be familiar with applicable State voluntary and regulatory programs, and
how these programs relate to the Federal or State NPDES program. Appendix A lists a variety of poten-
tial sources that permit writers may wish to use as background for developing NPDES permits as well
as increasing their understanding of agricultural practices related to AFOs. In addition, the guidance
discusses the circumstances under which CAFO owners or operators should submit a Notice of Intent
(NOI) to seek coverage under an NPDES general permit or apply for an NPDES individual permit.
While this guidance is limited to the development and issuance of NPDES permits for CAFOs, it is
important for the permit writer to recognize that there are other NPDES program requirements that may
be applicable to CAFOs. For example, discharges of storm water associated with construction activity at,
or construction of, CAFOs that disturb one acre of land or more are subject to NPDES storm water per-
mit requirements. These requirements address all activities associated with the construction of CAFOs,
including clearing, grading, and excavation, but do not address discharges associated with the operation
of the facility, which are addressed in the NPDES CAFO permit. Therefore, it is generally in the interest
of both the permitting authority and the CAFO operator to administer storm water permits for construc-
tion separately from NPDES CAFO permits.
This guidance does not address holding areas at Meat and Poultry Processing (MPP) facilities to avoid
any ambiguity about which permit requirements and effluent guidelines apply to discharges from the
MPP animal holding areas. All meat and poultry slaughtering facilities have live animal receiving areas.
EPA does not interpret the AFO definition to include animal holding areas at meat and poultry slaughter-
ing facilities. Furthermore, the CAFO rules do not establish requirements for MPP animal holding areas.
Wastes from animal holding areas at MPP facilities were identified during the original effluent guide-
lines rulemakings in the 1970s as being part of the MPP facilities process wastewater and the require-
ments at 40 CFR Part 432 apply to these wastes. NPDES permits have historically addressed the animal
holding areas at processing facilities as part of the meat processing facility rather than as an animal
1-3
-------
feeding operation. Given the effectiveness of this approach, EPA does not intend to change the applica-
bility of the MPP rules to animal holding areas. Animal holding areas at meat and poultry slaughtering
facilities are still subject to the requirements of the MPP rule codified at 40 CFR Part 432 and are not
subject to the NPDES CAFO requirements codified at 40 CFR Part 122 or the CAFO effluent guidelines
codified at 40 CFR Part 412.
This is a guidance manual and example permit, not a regulation. It does not change or substitute for any
legal requirements. While EPA has made every effort to ensure the accuracy of the discussion in this
guidance, the obligations of the regulated community are determined by the relevant statutes, regula-
tions, or other legally binding requirements. This guidance manual and example permit is not a rule, is
not legally enforceable, and does not confer legal rights or impose legal obligations upon any member
of the public, EPA, States, or any other agency. In the event of a conflict between the discussion in this
document and any statute or regulation, this document would not be controlling. The word "should"
as used in this guidance manual and example permit does not connote a requirement, but does indicate
EPA's strongly preferred approach to assure effective implementation of legal requirements. This guid-
ance may not apply in a particular situation based upon the circumstances, and EPA, States and Tribes
retain the discretion to adopt approaches on a case-by-case basis that differ from this guidance manual
and example permit where appropriate. Permitting authorities will make each permitting decision on
a case-by-case basis and will be guided by the applicable requirements of the CWA and implementing
regulations, taking into account comments and information presented at that time by interested persons
regarding the appropriateness of applying these recommendations to the particular situation. In addi-
tion, EPA may decide to revise this guidance manual and example permit without public notice to reflect
changes in EPA's approach to implementing the regulations or to clarify and update text.
1-4
-------
2.0 ARE FOR
NPDES permitting authorities have two options in issuing NPDES permits to CAFOs: general permits
and individual permits. This section describes the administrative process for both permitting options, as
well as situations in which one or the other is appropriate.
2.1 for
A general NPDES permit is written to cover a category of point sources with similar characteristics for
a specific geographic area (e.g., watershed, county, region, State). The scope of the permit can also be
limited to particular animal sectors or sizes of operations. It is expected that the majority of CAFOs may
appropriately be covered under an NPDES general permit because CAFOs generally involve similar
types of operations, require the same kinds of effluent limitations and permit conditions, and discharge
the same types of pollutants. Section 4.2 discusses the circumstances where individual NPDES permits
for CAFOs are more appropriate.
General permits offer a cost-effective approach for NPDES permitting authorities because they can
cover a large number of facilities under a single permit. At the same time, the general permit can also
provide the flexibility for the permittee to develop and implement pollution control measures that are tai-
lored to the site-specific situation of the permittee. EPA strongly encourages NPDES permitting authori-
ties to make ample provision for public involvement during the public notice and comment period
required during the process of developing and issuing NPDES general permits [40 CFR 124.10].
2.1.1 NPDES
Watershed-based permits are NPDES permits that are issued to point sources on a geographic or water-
shed basis. They focus on watershed goals and consider the impact of multiple pollutant sources and
stressors, including those from nonpoint sources. A watershed approach provides a framework for
addressing all stressors within a hydrologically defined drainage basin instead of viewing individual pol-
lutant sources in isolation. More than 20 States have implemented some form of the watershed approach
and manage their resources on a rotating basin cycle.
Because of the recent emphasis on watershed-based permits and development of total maximum daily
loads (TMDL) that focus on water quality impacts, EPA is looking at ways to use watershed-based
permits to achieve watershed goals. The watershed-based permit is a tool that can assist with imple-
mentation of a watershed approach. The utility of this tool relies heavily on a detailed, integrated, and
inclusive watershed planning process. Many of the actions necessary for a successful TMDL are also
needed for a successful watershed approach. The process and data needs for developing a watershed-
based permit and for developing a TMDL are very similar. In places where TMDLs have been devel-
oped, watershed permits may be useful tools for implementing TMDLs. For example, North Carolina's
nutrient management strategy for the Neuse River Basin includes a watershed-based permit approach for
TMDL implementation. The strategy recognizes the need for all groups to work together and includes an
approach for permitted dischargers to work collectively to meet a combined nitrogen allocation, rather
than be subject to individual allocations. A watershed permit approach was also used for municipal
discharges in Connecticut contributing nutrients to the Long Island Sound. An approach similar to those
used in North Carolina and Connecticut can be used for permitting CAFOs within a specific watershed.
2-1
-------
2.1.2 is an for CAFOs and
EPA and the States have extensive information and experience in developing and implementing NPDES
general permits. These general permits can be developed to cover one or several animal livestock sec-
tors. This guidance will, therefore, highlight only some of the unique features of permitting CAFOs
under NPDES general permits. The procedures and requirements for issuing NPDES general permits
are contained in 40 CFR 122.28 and in the corresponding State regulations. At present (winter 2003),
45 States have been authorized to issue NPDES general permits.
In developing and issuing an NPDES general permit, the NPDES permitting authority develops a draft
permit and a fact sheet that defines the following: the scope of the permit, the facilities that qualify for
coverage under the permit, and the specific terms and conditions that apply to permittees. The permit-
ting authority must then make the draft permit and fact sheet available for review through public notice
and comment. After comments have been considered and a public hearing held, if appropriate, the final
permit is issued, usually for a 5-year term. To seek coverage, facilities typically must submit a Notice
of Intent (NOI) to be covered in accordance with a schedule established in the permit. When NOIs are
received, the permitting authority should screen them for eligibility and post on their web site or in some
other manner the facilities being considered for coverage under the general permit. An owner or operator
eligible for a general permit may request to be excluded from coverage under the NPDES general permit
by applying for an NPDES individual permit. Consistent with provisions in the NPDES regulations [40
CFR 122.28(b)(3)], any interested party may petition the Director of the NPDES permitting authority to
require any specific facility to be covered under an individual permit.
EPA expects that States will use a number of different approaches for establishing their NPDES general
CAFO permit program. In some cases a single general permit covering all of the CAFOs in a State may
be appropriate. In other situations a specific permit for each animal sector may be the best approach.
States may also elect to issue different general permits for existing and new sources. The sample permit
included in Appendix J of this guidance has been set up to address all existing CAFOs that are subject to
Subparts C and D of the ELG.
NPDES general permits should contain special provisions that identify facilities that are more appropri-
ately covered under individual NPDES permits (see Section 4.2). For example, States may develop their
NPDES general permits in a way that limits coverage to facilities of a certain size, thereby requiring
CAFOs above a certain threshold to apply for an individual NPDES permit. Alternatively, States may
choose to develop their NPDES general permits so that they identify certain facilities as a separate class
of CAFOs (e.g., very large, impaired waters) that need to meet additional permit conditions identified in
the general permit.
Given the significant public interest in the issue of animal waste management and the permitting of
CAFOs, EPA strongly encourages early and effective outreach during the preparation and public notice
of draft NPDES general permits for CAFOs. For example, New York State issued a draft NPDES gen-
eral permit for CAFOs for public comment and then conducted four public information meetings to
explain the content and procedures for its draft permit. This kind of outreach can help address questions
and concerns, promote effective public input in this stage of the process, and reduce the number of chal-
lenges to general permits.
2.1.3 How do CAFOs an NPDES permit?
NPDES general permits for CAFOs must specify the deadlines for submitting NOIs to be covered and
the date(s) when a permittee is covered by the NPDES general permit. Any facility that seeks coverage
under a general permit is required to submit a written NOI by a date certain (as identified in the final
2-2
-------
general permit) unless otherwise notified by the permitting authority [40 CFR 122.28(b)(2)]. The infor-
mation requirements for the NPDES CAFO general permit NOI and the NPDES CAFO permit appli-
cation form, for an individual permit, are the same. The minimum requirements for both the NOI and
application are defined in 40 CFR 122.21 (i)(l) [also see 122.28(b)(2)(ii)]. The NOI/Permit Application
for CAFOs is found in Appendix D. This form contains the minimum federal requirements. There may
be additional State-specific requirements that need to be addressed.
A complete and timely NOI indicates the owner or operator's intent to abide by all the conditions of the
permit and fulfills the requirements of a permit application. The contents of the NOI must be clearly
specified in the general permit, and should include the requirement to submit adequate information to
determine whether coverage under the general permit is appropriate.
2.1.4 the NOIs?
The NOI serves as a permit application for CAFOs that seek coverage under the NPDES general permit.
While the regulations allow several methods for providing coverage under a general permit, EPA rec-
ommends that the general permit specify that the facility is authorized to discharge in accordance with
the permit after a specified waiting period of, for example, 30 days. The general permit should specify
whether coverage is automatic unless notified by the permitting authority or whether it begins on receipt
of notification of inclusion by the permitting authority. This will allow the permitting authority to pro-
vide for meaningful public involvement after NOIs are submitted.
Upon receipt of an NOI, the NPDES permitting authority should post the NOI or other information iden-
tifying who has applied for coverage under the general permit for public review prior to the effective
date of coverage of the CAFO under the general permit. Permitting authorities may want to develop and
use Internet-based sites as a supplemental and cost-effective means for providing ready public access to
CAFO permit information, including NOIs. EPA encourages States to provide for electronic NOIs and
posting of NOIs submitted by CAFOs so they are more easily accessible to the public. Some States have
already made much of this information available on State-supported web sites. The NOI also provides
essential compliance information, and the permitting authority should ensure that the information is
entered into the Permit Compliance System.
The public would thus have the opportunity to be notified of CAFOs seeking coverage under the gen-
eral permit before coverage takes effect for those facilities. Upon review of an NOI or other information
identifying CAFOs seeking coverage under the permit, or any other document by the permitting author-
ity (e.g., permit, annual report, State technical standards for nutrient management), the public would
have an opportunity to seek more information, to raise concerns, to petition the permitting authority for
individual permit coverage, or to request a hearing concerning CAFOs seeking coverage under the gen-
eral permit. The permitting authority is encouraged to consider requests as it normally would and may
choose to hold a public hearing for one or more operations who have submitted NOIs seeking coverage
under the general permit
2.2 for
The permitting authority may require any discharger authorized by a general permit to apply for and
obtain an individual NPDES permit [40 CFR 122.28(b)(3)]. In addition, any interested person may
petition the permitting authority to take such action [40 CFR 122.28(b)(3)]. This section describes the
CAFOs that are most appropriately covered by individual NPDES permits, as well as additional permit
conditions that should be imposed on certain facilities.
2-3
-------
2.2.1 be by NPDES
Whether a CAFO should be required to obtain an individual NPDES permit is a determination that
remains within the discretion of the permitting authority. [40 CFR 122.28(b)(3)]. In making such a deter-
mination, the permitting authority may wish to consider factors such as whether the CAFO is an:
• Exceptionally large operation (existing and new)
Operation that has historical compliance problems
Operation that has significant environmental concerns
Operation located in an area of significant environmental concern or with particular water quality
impairment
• Operation subject to voluntary alternative performances standards for the production area
• Operation subject to additional State requirements that apply to specific areas or operations
2.2.2 are NPDES
An individual NPDES permit for a CAFO is developed in the same manner as an NPDES permit for a
facility in any other sector. Upon receipt of the permit application, the permit writer develops a draft per-
mit and fact sheet for a particular facility based on the information contained in the application submit-
ted by the facility. The draft permit and fact sheet are made available for public review and comment and
are subsequently issued in final form.
Table 2-1 lists the information that must be provided on Forms 1 and 2B. Appendix D includes a copy of
Form 2B. The minimum information that is required to be submitted is the same for both individual and
general NPDES permits. In addition, facility inspection report(s) may be used to supplement the devel-
opment of permit conditions. Appendix A contains a list of possible references for the permit writer in
support of NPDES permit development.
Given the potential water quality concerns associated with CAFOs to be covered under individual
NPDES permits, the permitting authority should take special steps to ensure that it has the necessary
information needed to prepare the draft permit and fact sheet. The permitting authority may use its Clean
Water Act Section 308 authority or corresponding State authorities to obtain additional needed informa-
tion or to conduct a site inspection while developing the draft permit.
2-4
-------
Table 2-1. Information Required on NPDES Application Forms 1 and 2B
Form 1
(all NPDES individual
permit applicants)
(40 CFR 122.21 (f))
Form 2B
(CAFOs)
(40 CFR 122.21 (i))
Activities conducted by the applicant that require ail NPDES permit
Name, mailing address, and location of facility
Up to four Standard Industrial Classification codes that best reflect the principal products or
services provided
Operator's name, address, and telephone number, and ownership status
Whether the facility is located on Indian lands
List of all other State and/or Federal permits or construction approvals received or applied for
under Clean Water Act, Resource Conservation and Recovery Act (RCRA), Safe Drinking
Water Act (SDWA). etc.
Brief description of the nature of the business
The name of the owner or operator
Facility location and mailing address
Latitude and longitude of the production area (entrance to production area)
Topographic map of the geographic area in which the C AFO is located showing the specific loca-
tion of the production area
Specific information about the number and type of animals, whether in open confinement or
housed under roof
Type of containment and storage and total capacity for manure, litter, or process wastewater stor-
age
Total number of acres under control of the applicant available for land application of manure, lit-
ter, or process wastewater
Estimated amounts of manure, litter, and process wastewater generated per year
Estimated amounts of manure, litter, and process wastewater transferred to other persons per year
For CAFOs that must seek coverage under a permit after December 31. 2006. a certification that
a nutrient management plan has been completed and will be implemented upon the date of
permit coverage.
2-5
-------
2-6
-------
3.0 ARE TO
AN
The NPDES program regulates the discharge of pollutants from point sources to waters of the United
States. CAFOs are point sources, as defined by the Clean Water Act, Section 502(14).
Permit writers should have a thorough understanding of the type of facility that EPA defines as a CAFO
under the NPDES program. This section helps the permit writer determine whether a facility is a CAFO
and explains who must apply for a permit under the NPDES CAFO regulation.
3.1 Which Are as
Regulatory Citation -
Animal feeding operation (AFO) means a lot or facility
(other than an aquatic animal production facility) where
the following conditions are met:
Animals have been, are, or will be stabled or confined and
fed or maintained for a total of 45 days or more in any
12-month period.
AND
Crops, vegetation, forage growth, or post-harvest residues
are not sustained in the normal growing season over any
portion of the lot or facility.
[40 Code of Federal Regulations (CFR) Part 122.23(b)(1)]
A facility must first meet the animal feeding opera-
tion (AFO) definition before it can be considered
a concentrated animal feeding operation (CAFO).
AFOs are defined as operations where animals have
been, are, or will be stabled or confined and fed or
maintained for a total of 45 days or more in any
12-month period and where vegetation is not sus-
tained in the confinement area during the normal
growing season. AFOs typically maintain animals,
feed, and manure, and have production operations.
EPA interprets "maintained" to mean that the ani-
mals are confined in the same area where waste is
generated and/or concentrated. Areas where ani-
mals are "maintained" can also include areas where
confined animals are watered, cleaned, groomed,
or medicated. This interpretation gives the NPDES permitting authority the ability to regulate animal
operations such as dairy farms, stockyards, fairgrounds, and auction houses where animals may not be
fed, but are confined temporarily.
The first part of the regulatory definition of an AFO means that animals must be kept on the lot or facil-
ity for a minimum of 45 days in a 12-month period. If an animal is confined on a facility for any portion
of a day, it is considered to be on the facility for a full day. For example, dairy cows that are brought in
for less than an hour to be milked would count as being on the facility for a portion of the day. However,
this does not mean that the same animals must remain on the lot for 45 days or more in order for the
operation to be defined as an AFO. It means that some animals are fed or maintained on the lot or facility
for 45 days out of any 12-month period. The 45 days do not have to be consecutive, and the 12-month
period does not have to correspond to the calendar year. For example, June 1 to the following May 31
would constitute a 12-month period.
The second part of the regulatory definition of an AFO distinguishes confinement areas from pasture or
grazing land. This part of the definition relates to the portion of the facility where animals are confined
and where natural forage or planted vegetation does not occur during the normal growing season. Con-
finement areas may have some growth along the edges while animals are present or during months when
animals are kept elsewhere. If a facility maintains animals in an area without vegetation, including dirt
3-1
-------
lots, the facility meets the second part of the AFO definition. For example, the following types of con-
finement areas meet the vegetation criteria of the AFO definition (the definition is not limited to these
situations):
* Facilities with confinement houses with constructed floors or metal slots;
* Operations with animals confined in an area without vegetation, including dirt lots; and
* Facilities that have dirt lots with incidental vegetative growth while animals are present or during
months when animals are kept elsewhere.
True pasture and rangeland operations are not considered AFOs because animals at these operations are
generally maintained in areas that sustain crops or forage growth during the normal growing season.
In some pasture-based operations, animals may freely wander in and out of particular areas for food or
shelter; this is not considered confinement. However, pasture and grazing-based operations may also
have confinement areas (e.g., feedlots, barns, milking parlors, pens) that meet the definition of an AFO.
Incidental vegetation in a clear area of confinement would not exclude an operation from meeting the
definition of an AFO.
In the case of a winter feedlot, the second part of the AFO definition (i.e., "no vegetation") is meant to
be evaluated during the winter, when the animals are confined. Animals from a grazing operation may
be confined during winter months in a confinement area that had vegetation during other parts of the
year. If the animals are confined for more than 45 days but not year-round and vegetation emerges in the
spring when animals are removed, the presence of vegetation does not prevent this feedlot from becom-
ing defined as an AFO because vegetation is growing when animals are not present. In this example the
feedlot will not sustain the vegetation that had emerged in spring once the animals are moved back into
the feedlot. Therefore it would meet the definition of an AFO.
3-2
-------
Is this animal production operation an AFO?
Example A: An operation confines its animals for 10-day intervals every month for 5 months. The animals are kept in an
enclosure with slot floors. Answer: This operation meets the AFO definition because it confines animals for a total of 50 days in
less than a 12-month period and the confinement area has slot floors.
Example B: An operation confines mature animals in pens of five animals each. It has 200 pens per building and 5 buildings. The
animals are confined year round. Answer: This operation is an AFO because it confines animals for 45 days or more and does
not sustain vegetation in the confinement area.
Example C: An operation raises beef cattle in a 5,000-acre pasture from April 1 through November 30 of each year. From
December 1 through March 3, the cattle are confined by a fence to a 10-acre area. The animals are not free to move between
the temporary confinement area and the pasture area. The growing season for the area in which the operation is located is
from May 1 through October 15. A site visit is made to the operation during January, and the 10-acre area where the animals
are confined has vegetation on roughly 5 percent or less of the ground; the other areas are barren soil or packed manure. The
confinement area was completely covered by vegetation during a prior visit to the operation during August. Answer: While the
operation is pasture-based for most of the year, it does meet the definition of an AFO. The animals are held in confinement for
more than 45 days and the vegetation has been denuded to the point that it is incidental while the animals are in confinement,
The fact that the vegetation reestablishes itself some time after the animals have been released from confinement does not
change the fact that the winter confinement results in this operation meeting the definition of an AFO.
Example D: A beef cattle operation maintains the herd on pastures from March 15 through November 15. From November 16
through March 14, the herd is moved to a fenced field where crops were grown during the spring and summer months. During
the winter, while the animals are confined to the field, the animals eat all of the post-harvest residue and other vegetation that
remained in the field after the crops were harvested. Additional feed is also brought to the field to sustain the herd throughout
the winter months. Answer: This operation meets the AFO definition. The animals are confined and fed for more than 45 days in
a 12-month period (November through March of each year). Although the confinement area is used for crop production during
times when the animals are grazing on pasture, the vegetation is not sustained during the period when the animals are confined
there.
Example E: An operation raises beef cattle in a 10,000-acre pasture rangeland. In the winter, food is brought to various locations
in the pasture rangeland to sustain the animals. The area immediately around the food supply is rendered barren of vegetation.
However, the animals have full access to the pasture area. Answer: This operation is not an AFO because the animals are free to
move within the entire pasture and the vegetation is sustained in pasture areas.
Example F: An operation raises beef cattle in a 2,000-acre pasture. In the winter, the animals congregate in a smaller area
(e.g., 100 acres), and have access to a creek as their primary source of water. The area immediately around the creek is
rendered barren of vegetation when the animals are present. This barren area constitutes approximately 10 percent of the 100-
acre wintering area. The remainder of the 100 acres retains vegetative cover. Answer: This operation is not an AFO because
vegetation is sustained in the confinement area while the animals are present. While the practices at this operation do not result
in it meeting the definition of an AFO, the practices are not protective of water quality. EPA would encourage such an operation to
provide an alternative water source to keep the animals out of the creek to reduce potential water quality impacts.
Example G: An operation raises cattle on pasture; however, a number of the cattle are confined for birthing each spring. The
confinement area is a dirt floored pen that has only incidental vegetation present along the edges and in some small areas within
the pen. The animals are in the pen for 90 days each spring. Answer: This operation meets the AFO definition. The animals are
confined and fed for more than 45 days and there is only incidental vegetation in the confinement area.
3-3
-------
Slotted floors facilitate waste handling and the
recycling of wastewater.
Beef cattle raised on pasture can be confined to
smaller temporary confinement areas for part of the
year.
Waters of the United States should be
protected from upslope animal confine-
ment and manure storage areas.
Winter feeding of cattle.
A water tank in a pasture combined with fencing
keeps cattle out of critical riparian areas.
Pasture rotation provides adequate cover to pre-
vent runoff to surface waters.
3-4
-------
3.2 Which AFOs Are Defined as Concentrated Animal Feeding Operations?
AFOs are CAFOs if they meet the regulatory definition [40 CFR 122.23 (b)(4) or (6)] of a Large or
Medium CAFO or have been designated as a CAFO on a case-by-case basis [40 CFR 122.23 (c)] by the
NPDES permitting authority or by EPA (see Section 3.2.7). This section provides the permit writer with
guidance on the type of operations covered by the NPDES permit program for CAFOs, how to deter-
mine whether an AFO meets the CAFO regulatory definition, and whether an AFO can be designated as
a CAFO. Note that some States have adopted regulatory definitions for CAFOs that are more inclusive
than EPA's regulations, and NPDES permits in those States should reflect those definitions.
3.2.1 What types of animal operations are covered by the regulation?
The regulation defines a Large CAFO based on the number of animals confined. Medium CAFOs have
other criteria associated with their definition, in addition to the number of animals confined, and these
criteria are discussed in Sections 3.2.3, 3.2.4, and 3.3. The sectors specifically defined in the regulations
are cattle, dairy cows, veal calves, swine, chickens, turkeys, ducks, horses, and sheep. A brief description
of the animal sectors and their associated operations that are covered by the rule are provided in Appen-
dix B. A small or medium AFO can be designated by the permitting authority as a CAFO if it is deter-
mined to be a significant contributor of pollutants to waters of the United States.
3.2.2 Which AFOs are defined as Large CAFOs?
An AFO is a Large CAFO if it stables or confines equal to or more than the number of animals specified
in Table 3-1 for 45 days or more in a 12-month period. The definition of a Large CAFO is based solely
on the number of animals confined.
Table
3-1. Large CAFOs
Number of Animals
700
1,000
1,000
2,500
10.000
500
10,000
55.000
30.000
125.000
82.000
30.000
5,000
Type of Animal
Mature dairy cows, whether milked or dry
Veal calves
Cattle, other than mature diary cows or veal calves (Cattle includes but is not limited to
steers, bulls and cow/calf pairs.)
heifers.
Swine, each weighing 55 pounds or more
Swine, each weighing less than 55 pounds
Horses
Sheep or lambs
Turkeys
Laying hens or broilers, if the AFO uses a liquid manure handling system
Chickens (other than laying hens), if the AFO uses other than a liquid manure handling
system
Laying hens, if the AFO uses other man a liquid manure handling system
Ducks, if the AFO uses other than a liquid manure handling system
Ducks, if the AFO uses a liquid manure handling system
Source: 40 CFR Part 122.23(b)(4)
In determining whether the applicable Large CAFO threshold is satisfied, the number of animals actually
maintained is considered, not the capacity of the operation.
3-5
-------
Is this operation a Large CAFO?
Example A: An operation confines 2,800 mature swine (more than 55 pounds each) in six houses. The houses have a concrete
floor with conveyances to capture manure. Answer: This operation meets the definition of an AFO; it confines animals for more
than 45-days over a 12-month period and the confinement area does not sustain vegetation. The operation is a Large CAFO
because it confines more than 2,500 mature swine, a number that exceeds the regulatory threshold for a Large CAFO.
Example B: A 1,000-head cow/calf operation evenly splits its calving between fall and spring. The animals are generally pastured
with the exception of two 60-day periods when the cow/calf pairs are confined for weaning. Because the calving is split, only 500
cow/calves are confined in any one weaning session. Answer: This operation meets the definition of an AFO because animals are
confined for 45 days in a 12-month period. Because the operation does not confine 1,000 or more animals or cow/calf pairs for
more than 45 days, the operation is not defined as a Large CAFO. The operation could be a Medium CAFO if it meets one of the
two discharge criteria for the Medium CAFO category, or is designated as a CAFO by the permitting authority.
Example C: A background yard (raises feeder cattle from time calves are weaned until they are on a finishing ration in the feedlot)
has the capacity to hold 1,100 head of cattle. The facility operates year round (animals are confined 365 days a year) and has
never confined more than 800 head at any one time. Answer: This operation meets the definition of an AFO because animals
are confined for 45 days in a 12-month period. Because the operation does not confine 1,000 or more animals or cow/calves
at any one time, the operation is not defined as a Large CAFO. The operation could be a Medium CAFO if it meets one of the two
discharge criteria for the Medium CAFO category, or is designated as a CAFO by the permitting authority.
Hog parlor with a concrete floor and a Calves on pasture. Beef cattle animal feeding operation.
conveyance that carries manure and
wastewater to a lagoon.
3.2.3 What practices constitute a liquid manure handling system at poultry opera-
tions?
The thresholds for chicken and duck AFOs in the CAFO definition are based on the type of litter or
manure handling system being used. The two systems are either a liquid manure handling system or
other than a liquid manure handling system. A liquid manure handling system includes the use of pits,
lagoons, flush systems (usually combined with lagoons), and holding ponds, as well as systems such
as continuous overflow watering, where water comes into contact with manure and litter. In addition,
operations that remove waste from confinement areas and stack or pile it in areas exposed to rainfall are
considered to have a liquid manure handling system. This would include those operations that remove
litter from the confinement area and stockpile or store it in remote locations. Permitting authorities may
authorize some limited period of temporary storage of litter of no more than 15 days that would not
result in the facility meeting the definition of a liquid manure handling system (e.g., where this limited
time is needed to allow for contract hauling arrangements). Once the litter is stockpiled beyond this tem-
porary period the uncovered stockpile would constitute a liquid manure handling system and the lower
threshold for chickens at 30,000 birds and ducks at 5,000 birds would be applicable to these operations.
3-6
-------
How are wet lot and dry lot operations distinguished for duck operations?
For ducks, there are two thresholds for defining an operation as a CAFO: (1) where the animals are
raised outside with swimming areas or ponds, or with a stream running through an open lot, or (2) in
confinement buildings where water is used to flush the manure to a lagoon, pond, or other liquid stor-
age structure. These types of operations would be considered to be wet lots and to use a liquid manure
handling system.
A duck operation using confinement buildings and handling manure and bedding exclusively as dry
material; an operation using a building with a mesh or slatted floor over a concrete pit, where the manure
is scraped into a waste storage facility; or an operation using dry bedding on a solid floor is referred to
as a "dry" operation. These operations use other than a liquid manure handling system. However in the
case of operations that stack litter see the discussion above.
3.2.4 Which AFOs are defined as Medium CAFOs?
An AFO is defined as a Medium CAFO if it meets both parts of a two-part definition. The first part of
the definition addresses the number of animals confined and the second part of the definition includes
specific discharge criteria. In addition, an AFO of medium size can be designated as a CAFO by the
permitting authority or EPA (see Section 3.2.5). The range of animals that define an AFO as a Medium
CAFO are listed in Table 3-2. If an AFO confines the number of animals listed in Table 3-2 for 45 days
or more in a 12-month period, it meets the first part of the definition of a Medium CAFO.
Table
3-2. Medium CAFOs
Number of Animals
200-699
300-999
300-999
750-2.499
3,000-9,999
150-499
3.000-9.999
16.500-54.999
9,000-29,999
3 7.500- 124.999
25,000-81,999
10.000-29.999
1,500-4.999
Type of Animal
Mature dairy cows, whether milked or dry
Veal calves
Cattle, other than mature diary cows or veal calves (Cattle includes but is not limiled to
steers, bulls and cow/can0 pairs.)
heifers.
Swine, each weighing 55 pounds or more
Swine, each weighing less than 55 pounds
Horses
Sheep or lambs
Turkeys
Laying hens or broilers, if the AFO uses a liquid manure handling system
Chickens (other than laying hens), if the AFO uses other tlian a liquid manure handling
system
Laying hens, if the AFO uses other than a liquid manure handling system
Ducks, if the AFO uses other than a liquid manure handling system
Ducks, if the AFO uses a liquid manure handling system
Source: 40 CFR Part 122.23(b)(6)
3-7
-------
Second, the facility must meet one of two discharge
criteria. The criteria are applicable only to the pro-
duction area of the AFO and are not applicable to
land areas where manure and wastewater are applied.
A facility meets the discharge criteria if pollutants
are discharged in one of the following ways [40 CFR
122.23 (b)(6)]:
* Into waters of the United States through a man-
made ditch, flushing system, or other similar
man-made device, or
* Directly into waters of the United States that
originate outside of the facility and pass over,
across, or through the facility or otherwise come
into direct contact with the confined animals.
If the facility does not discharge from its production
area it is not defined as a Medium CAFO. Further,
even though a facility is not defined as a Medium
CAFO, if it discharges using a method other that
the two listed above, it may still be designated as a
CAFO (see Section 3.2.5).
Definition of Production Area
Production area means that part of an AFO that
includes the animal confinement area, the manure
storage area, the raw materials storage area,
and the waste containment areas. The animal
confinement area includes but is not limited to open
lots, housed lots, feedlots, confinement houses,
stall barns, free stall barns, milkrooms, milking
centers, cowyards, barnyards, medication pens,
walkers, animal walkways, and stables. The manure
storage area includes but is not limited to lagoons,
runoff ponds, storage sheds, stockpiles, under
house or pit storages, liquid impoundments, static
piles, and composting piles. The raw materials
storage area includes but is not limited to feed silos,
silage bunkers, and bedding materials. The waste
containment area includes but is not limited to settling
basins, and areas within berms and diversions
which separate uncontaminated storm water. Also
included in the definition of production area is any
egg washing or egg processing facility, and any area
used in the storage, handling, treatment, or disposal of
mortalities. [40 CFR 122.23(b)(8)]
A flushing system uses fresh or recycled water to
move manure from the point of deposition or collec-
tion to another location. The term man-made device means a conveyance constructed by humans through
which manure, litter, or process wastewater is transported. Man-made devices include, among other
things, pipes, ditches, and channels. If human action was involved in the creation of the conveyance, it is
man-made even if natural materials were used to form the conveyance.
The second criterion is met whenever there is a discharge to a stream, creek, wetland, or other water of
the United States that begins outside a production area and passes over, across, or through the produc-
tion area. This method of discharge criterion is also met if animals maintained at the facility can come
into direct contact with waters of the United States. A stream running through the area where animals are
confined indicates that there is a direct discharge of pollutants. An intermittent stream or a dry creek bed
running through the production area also falls into this category.
3-8
-------
Is this operation defined as a Medium CAFO?
Example A: A dairy with 600 cows confined year-round discharges parlor wash water through a floor drain that is connected to
a tile which outlets to a stream. Answer: Yes. The pipe connecting the floor drain to the tile is a man-made device, as is the tile.
Example B: Runoff from an earthen lot with 850 beef cattle, confined for 6 months a year, passes through a settling basin, riser
pipe, concrete channel, junction box, and distribution manifold before flowing by gravity to an area where it infiltrates into the
soil. Answer: No. While the system described includes several man-made devices, the operation does not meet the definition of
a Medium CAFO because the runoff does not enter waters of the United States.
Example C: A 400-head beef cattle AFO, operated year-round, has a properly designed grassed waterway installed adjacent to
the production area that transports runoff to an open field. There is no surface water in the area where the runoff is transported.
Answer: No. While a properly designed grassed waterway is a man-made device, the discharge in this case does not reach a
water of the United States.
Piped discharges of barnyard and milkhouse
wastewater could pollute surface water.
Grass filter strips can protect surface water
from manure and effluent application.
3.2.5 Which AFOs can be designated as CAFOs?
The NPDES regulations for CAFOs set forth the standards and process for the NPDES permitting
authority or, in some cases EPA, to designate, on a case-by-case basis, any AFO as a CAFO, upon
determining that the facility is a significant contributor of pollutants to waters of the United States.
Designation ensures protection of surface water quality while maintaining flexibility for States or other
entities to assist small and medium operations in removing risk conditions before they become subject to
NPDES requirements applicable to CAFOs.
3-9
-------
Medium CAFO Definition Discharge Criteria
* Pollutants are discharged into waters of the
United States through a man-made ditch, flushing
system, or other similar man-made device; or
• Pollutants are discharges directly into waters of the
United States which originate outside of and pass
over, across, or through the facility or otherwise
come into direct contact with animals confined in
the operation.
[40CFR122.23(b)(6)(ii)(A)and(B)]
Any AFO may be designated as a CAFO on a case-by-
case basis if determined to be a significant contributor
of pollutants to waters of the United States as specified
in 40 CFR 122.23(c). However, given the structure of
the CAFO definition, three types of AFO operations are
typically considered for designation:
« A medium-sized AFO that does not meet one of the
specific discharge criteria and is determined to be a
significant contributor of pollutants to waters of the
United States;
* A small AFO (i.e., confines less than the number of
animals defined in Table 3-2) if the facility meets
one of the method of discharge criteria [122.23(c)(3)(i) and (ii)] and is determined to be a significant
contributor of pollutants to waters of the United States;
« An AFO that raises animals other than species identified in the regulatory definition of a Medium
CAFO and is determined to be a significant contributor of pollutants to waters of the United States.
Examples of such AFOs include, geese, emus, ostriches, llamas, mink, bison, alligators, etc.
3.2.6 are the to be and the for an AFO
as a CAFO?
For an AFO to be designated as a CAFO, it must be determined to be a significant contributor of pollut-
ants to waters of the United States by the appropriate authority [40 CFR122.23(c)]. Once an operation
is designated as a CAFO, it must seek coverage under an NPDES permit and, among other things, be
required to develop and implement a nutrient management plan.
Under 40 CFR 122.23(c)(3), an AFO may not be designated as a CAFO until the NPDES permitting
authority or EPA has conducted an on-site inspection of the operation and determined that the operation
should and could be regulated under the permit program. In addition, a small AFO may not be designat-
ed as a CAFO unless it also meets the small AFO method of discharge criteria [122.23(c)(3)(i) and (ii)],
and is determined to be a significant contributor of pollutants to waters of the United States.
The on-site inspection serves three primary objectives: (1) to confirm that the facility meets the AFO
definition; (2) to collect information related to the CAFO designation factors; and (3) to provide a degree
of notice to the AFO it may be designated as a CAFO. The requirement for an on-site inspection helps
ensure that a reasoned assessment of the situation has been performed and makes the operation aware
that it may be designated as a CAFO. EPA recommends that the designation process be conducted as
soon as possible following the inspection. Regardless of when an inspection takes place, the designation
should be based on current information.
In determining whether an AFO is a significant contributor of pollutants to waters of the United States,
the permitting authority or EPA Regional Administrator (see Section 3.2.7) shall consider the factors
specified in 40 CFR 122.23(c)(2), which are listed in the left-hand column of Table 3-3, below. The
right-hand column in Table 3-3 gives examples of case-by-case designation factors that can be assessed
during the designation inspection. The assessment of regulatory factors may be based on visual observa-
tions, as well as water quality monitoring and other sources of relevant information.
3-10
-------
Table 3-3. Example Factors for Case-by-Case CAFO Designation
Designation Factor
Example Factors for Inspection Focus
Size of the Operation and Amount of Wastes Reach-
ing Waters of the United States
Number of animals
Type of feedlot surface
Feedlot design capacity
Waste handling/storage system design capacity
Location of the Operation Relative to Waters of the
United States
Location of waterbodies
Location of tloodplain
Proximity of production area and land application area to
waters of the United States
Depth to ground water, direct hydrologic connection to
waters of the United States
Located in an impaired watershed
U Means of Conveyance of Animal Wastes and Pro-
cess Wastewaters into Waters of the United States
Identify existing or potential man-made (includes natural
and artificial materials) structures that may convey waste
Direct contact between animals and waters of the U.S.
Slope, Vegetation. Rainfall, and Oilier Factors Af-
fecting the Likelihood or Frequency of Discharge of
Animal Wastes. Manure, and Process Wastewaters
into Waters of the United States
Slope of feedlot and surrounding land
Type of feedlot (concrete, soil)
Climate (e.g., arid or wet)
Type and condition of soils (e.g., sand, karst, etc.)
Drainage controls
Storage structures
Amount of rainfall
Volume and quantity of runoff
High water table
Buffers
U Other Relevant Factors
History of non-compliance
Use of conservation practices to minimize nutrient transport
to waters of the United States
Working with USDA or Soil and Water Conservation Dis-
trict to improve operation
Following the on-site inspection for designation, theNPDES permitting authority should prepare a brief
report that (1) identifies findings and any follow-up actions, (2) determines whether the facility should or
should not be designated as a CAFO, and (3) documents the reasons for that determination. Regardless
of the outcome, a letter should be prepared and sent to inform the facility of the results of the inspection.
If the permitting authority has made a decision to designate an AFO as a CAFO, the letter should specify
that the operation must obtain an NPDES permit. The letter should indicate whether a general permit is
available or whether an individual permit application is to be submitted by a specific date. In those cases
where a facility has not been designated as a CAFO but the NPDES permitting authority has identified
areas of concern, these areas should be noted in the letter. The letter should state that if these concerns
are not corrected, the facility may be designated in the future. It should also include a date for a follow-
up inspection to determine whether the concerns have been adequately addressed. Samples of letters that
would be used at the conclusion of a designation inspection are included in Appendix C.
The following are examples of situations that may warrant designation:
• An AFO that maintains 350 cattle is located adjacent to a river that is impaired as a result of nutri-
ent loading. The operator routinely piles the waste next to the enclosure where it remains until a
3-11
-------
contract hauler picks it up. The waste is removed monthly;
but rainfall occurs several times a month and runoff from the
stockpiled manure flows through naturally occurring channels
in the ground to the river. This facility would be a candidate
for inspection and designation as a CAFO (the permitting
authority also could recommend site modification). Note that
an AFO that confines the number of animals specified in 40
CFR 122.23(b)(6) (Medium CAFO) does not need to meet the
discharge criteria specified in 40 CFR 122.23(c)(3)(i) or (ii) to
be designated as a CAFO.
An AFO with 650 swine is crossed by a stream that originates
outside of the facility and flows through its open lot, where
the animals are confined, and continues on to connect with
other waters of the United States beyond the facility. This
facility would be a candidate for inspection and designation as
a CAFO. Because the facility is a small AFO, it must meet the
discharge criteria in 40 CFR 122.23(c)(3)(i) or (ii).
3.2.7 Can EPA designate an AFO as a CAFO in
NPDES authorized States?
.^f-
Runoff from unprotected stockpiles
could pollute surface water.
Uncontrolled manure that enters
surface waters constitutes a point
source discharge.
The CAFO regulations explicitly authorize the EPA Regional Administrator to designate AFOs as
CAFOs in NPDES-authorized States and Tribes where the Regional Administrator has determined that
one or more pollutants in an AFO's discharge contributes to an impairment in a downstream or adjacent
State or Indian country water that is impaired by that pollutant. Such designation is based on assessment
of the factors in 40 CFR 122.23(c)(2), and also requires an on-site inspection. Upon designation by EPA,
the operation would be required to apply to the permitting authority for permit coverage. EPA designa-
tion in NPDES-authorized States is intended to ensure consistent implementation of designation require-
ments across State or Tribal boundaries where there are serious water quality concerns. It is not EPA's
intention to make such designations without close coordination with affected States and Tribes.
3.2.8 What is the relationship of State or Tribal voluntary and non-NPDES programs to
designation?
Medium-sized and small AFOs that have conditions that may warrant designation or meet the regula-
tory definition of a CAFO can often be effectively addressed by USD A voluntary programs, State or
Tribal voluntary programs or by State non-NPDES regulatory programs focused on the elimination of
the conditions that result in a discharge to waters of the United States. Implementing these voluntary
or regulatory State or Tribal programs can help to ensure that medium and small operations implement
proper practices and are not defined or designated as CAFOs. If documented discharges to waters of the
United States are not addressed by the owner or operator of particular AFOs, the NPDES CAFO regula-
tions provide authorized States and Tribes with appropriate flexibility to use designation as an effective
mechanism to address these operations. Once designated as a CAFO, or when the facility meets the
definition, the operation is subject to permitting requirements.
3-12
-------
3.2.9 What if an operation has multiple animal types?
An AFO is defined as a CAFO if any one animal type in confinement meets the threshold for either a
Large or Medium CAFO. An operation that meets the threshold for a Medium CAFO also must meet
one of the discharge criteria to be defined as a Medium CAFO. Under the revised NPDES CAFO regula-
tion, multiple types of animals are no longer counted together to determine the type and size of a CAFO.
Is this AFO a CAFO?
Example A: A dairy operation confines year-round 275 dry mature dairy cows, 500 lactating mature dairy cows, and 800 heifers.
Answer: This operation meets the definition of a Large CAFO because it confines more than 700 (in this case 775) mature dairy
cows, milked or dry for more than 45-days. The 800 heifers alone would not meet the threshold for a Large CAFO. Once the
operation meets the definition of a CAFO, the manure from all of the animals confined, including the heifers, would be subject to
the ELG and would need to be addressed in the nutrient management plan developed and implemented at the operation.
Example B: A swine nursery operation has 15,000 piglets that range in weight from 40 to 60 pounds. The operation also has a
farrowing house with 2,200 sows and approximately 13,000 piglets that are not weaned. The operation maintains this number of
animals year-round. Answer: This operation would meet the definition of a Large CAFO if it has at least 10,000 piglets that weigh
under 55 pounds confined for more than 45-days. Once the operation meets the definition of a CAFO, the manure from all of the
animals confined would be subject to the ELG and would need to be addressed in the nutrient management plan developed and
implemented at the operation.
Example C: An operation confines for more than 45-days 250 beef cattle, 20 horses, and 22,000 chickens (does not use a
liquid manure handling system). Answer: This operation does not meet the definition of a CAFO. The number of animals of
any one animal type that are confined for 45-days in a 12-month period does not exceed the thresholds for a Large or Medium
CAFO. Given that there are not sufficient animals confined, there is no need to determine whether the AFO meets one of the
two discharge criteria to be defined as a Medium CAFO. However, this operation could still be designated as a CAFO if a
determination is made by the appropriate authority that the operation is a significant contributor of pollutants to waters of the
United States.
Dairy cattle animal feeding
operation.
Swine AFOs could house animals of a single
age class or mixed age classes (i.e., swine
weighing both greater and less than 55
pounds).
Leaking waterers complicates litter
management.
3-13
-------
However, once a given operation is defined as a CAFO, regardless of animal type, the regulations apply
to all of the manure, litter, and wastewater generated by all animals confined at the operation. In the
event that waste streams from multiple livestock species are commingled and the regulatory require-
ments for each species are not the same, the permit must include the more stringent ELG requirements.
In situations where immature animals (e.g., heifers and swine (weighing less than 55 Ibs)) are confined
along with mature animals, the determination of whether the operation is a CAFO depends on whether
the mature or immature animals separately meet the applicable threshold. Operations that specialize in
raising only immature animals (heifers, swine (weighing less than 55 Ibs), and veal calves) have spe-
cific thresholds under the regulations. However, once an AFO is defined as a CAFO, manure, litter, and
process wastewater generated by all of the animals in confinement would be subject to NPDES permit
requirements.
An operation that confines multiple animal types, where no one type meets the Large or Medium CAFO
threshold, can be designated as a CAFO if it is found to be a significant contributor of pollutants to
waters of the United States. See Section 3.2.5 for additional discussion of designated CAFOs.
3.2.10 are
Under the NPDES regulations for CAFOs, two or more AFOs under common ownership are considered
one operation if, among other things, they adjoin each other, including facilities that are separated by
a right-of-way or public road, or if they use a common area or system for the disposal of wastes. For
example, operations generally meet this criterion where they have a common manure and wastewater
storage and handling system in which the manure, litter, or process wastewater are commingled (e.g.,
stored in the same pond, lagoon, or pile or land applied on common fields). Whether the common own-
ership operation meets the definition of a Large or Medium CAFO depends on the cumulative number of
animals confined.
3.2.11 How are AFOs with not in the
An operation confining any other animal type (e.g., geese, emus, ostriches, bison, mink, alligators,
etc.) that is not explicitly mentioned in the NPDES and effluent guidelines regulations is still subject
to NPDES permitting requirements if it meets the definition of an AFO and if the permitting authority
designates it as a CAFO. See Section 3.2.5 for a discussion of designation.
3.3 Apply for a Permit?
3.3.1 CAFOs a to for a permit?
The CAFO regulations at 40 CFR 122.23(d) require all CAFO owners or operators to apply for an
NPDES permit. An exception to this requirement is that Large CAFOs need not apply for a permit if
they can successfully demonstrate that they have "no potential to discharge" (see Section 3.3.5). EPA
expects only limited numbers of Large CAFOs to be able to show "no potential to discharge"; therefore,
nearly all will need to apply for an NPDES permit. In addition, all medium-sized and small AFOs that
are defined or designated as CAFOs have a "duty to apply." The regulations do not provide any excep-
tion for Medium and Small CAFOs that have "no potential to discharge", since the criteria for becom-
ing a Medium or Small CAFO are based upon the existence of a discharge. Some States and Tribes may
want to work with AFOs that meet the definition of a Medium or Small CAFO to eliminate the discharge
conditions that define the operation as a CAFO or make it a candidate for designation (see Section
3-14
-------
3.2.8). EPA encourages States to maximize the use of voluntary and other non-NPDES programs to sup-
port the efforts by medium and small operations to implement appropriate measures and correct prob-
lems that cause them to be denned or might cause them to be designated as CAFOs and thus be subject
to permitting.
3.3.2 What information is required in an NPDES CAFO Permit Application or Notice of
Intent?
CAFO owners or operators must either submit an application for an individual permit or submit a Notice
of Intent (NOI) (or the permitting authority's comparable form) for coverage under a general permit, if a
general permit is available.
The revised CAFO regulations amend the information requirements for seeking coverage under an
NPDES permit for CAFOs. The regulations revise the NPDES individual permit application (Form 2B)
and general permit NOI form for CAFOs, and specify the information required for coverage under either
type of CAFO permit [40 CFR 122.21(i)(l) and 122.28(b)(2)(ii)]. Form 2B can be used by the permit-
ting authority for both NPDES CAFO permit applications and NOIs. EPA requires applicants for cover-
age under either individual or general CAFO permits to provide the same minimum information that
consists of the items listed in Table 3-4.
Table 3-4. NPDES CAFO Permit Required Application Information
Required Information
The name of the owner or operator
The facility location or mailing address
Latitude and longitude of the production area (entrance
to production area)
A topographic map of the geographic area in which the
CAFO is located showing the specific location of the
production area, in lieu of die requirements of 40 CFR
122.2 l(f)(7)
Specific information about the number and type of
animals, whether in open confinement or housed under
roof (beef cattle, broilers, layers, swine weighing 55
pounds or more, swine weighing less than 55 pounds.
mature dairy cows, daily heifers, veal calves, sheep and
lambs, horses, ducks, turkeys, other)
The type of containment and storage (anaerobic lagoon,
roofed storage shed, storage ponds, underfloor pits,
above ground storage tanks, below ground storage
tanks, concrete pad, impervious soil pad. other) and
total capacity for manure, litter, and process wastewater
storage (tons/gallons)
The total number of acres under control of the appli-
cant available for land application of manure, litter, or
process wastewater
Estimated amount of manure, litter, and process waste-
water generated per year (tons/gallons)
Estimated amount of manure, litter, and process
wastewater transferred to other persons per year (tons/
gallons)
For CAFOs that must seek coverage under a permit
after December 3 1, 2006, certification that a nutri-
ent management plan lias been completed and will be
implemented upon the date of permit coverage.
The complete revised Form 2B is included in Appendix D to this guidance.
To the extent that a permitting authority needs additional information to support a permit application, the
NPDES permitting authority may request additional information and use other Clean Water Act informa-
tion-gathering authorities (e.g., § 308) to obtain such information.
3-15
-------
3.3.3 Which CAFOs are new sources?
The revised CAFO regulations do not change the definitions of new source or new discharger, which are
found at 40 CFR 122.2 and 122.29. Whether a facility is a new source affects the applicable time-frame
for compliance and the applicability of the feedlot new source performance standards.
Table 3-5 outlines the applicability of new source performance standards (NSPS) to four groups of
Large CAFOs covered by Part 412 Subparts C and D following promulgation (February 12, 2003) of the
revised CAFO NPDES regulations and Effluent Limitations Guidelines. Two of these groups (1 and 3)
are not subject to NSPS under either the "old" (1974) or "new" (2003) ELGs. One group (2) is subject to
NSPS under the 1974 ELGs, but only so long as they are subject to the 10-year protection period of 40
CFR 122.29(d). The remaining group (4) is subject to NSPS under the 2003 ELGs. Where NSPS is not
applicable, Large CAFOs are subject to the BAT requirements of the newly revised ELGs.
Table 3-5. Applicability of New Source Performance Standards (NSPS) for NPDES Permits Issued to
CAFOs in Subparts C and D Following Promulgation of the Revised CAFO Regulations
Time period that the Large CAFO
commenced construction (consis-
tent with the new source criteria
in 40 CFR 122.29(b))
Do the 1974 NSPS for CAFOs apply?
Do the February 12, 2003 NSPS for
Large CAFOs apply?
(1) Large CAFOs formerly defined as
CAFOs under die 1976 NPDES
regulations that commenced con-
struction prior to April 1993
No
No
(2) Large CAFOs formerly denned as
CAFOs under die 1976 NPDES
regulations that commenced con-
struction between April 1993 and
April 14, 2003
Yes - During the 10-year protection
period established by 40 CFR
122.29(d). Once this period
expires, the CAFO is subject to
BAT under the newly promulgated
guideline.
No
(3) Existing AFOs newly denned as
Large CAFOs under die 2003 NP-
DES regulations that commenced
construction prior to April 14.
2003
No
No
(4) AFOs defined as Large CAFOs
under the 2003 NPDES regulations
diat commenced construction after
April 14. 2003
Not Applicable
Yes
The following is a discussion of each group of facilities listed in the Table 3-5:
(1) Large CAFOs formerly defined as CAFOs under the 1976 NPDES regulations that commenced con-
struction prior to April 1993.
These facilities would have been required to have a permit under the 1976 NPDES CAFO require-
ments. CAFOs constructed after the 1976 CAFO NPDES regulations were new sources subject to
NSPS under the 1974 CAFO ELGs because construction of the source commenced after the appli-
cable new source date. With the promulgation of the new ELGs, these facilities are not new sources
subject to the 2003 NSPS because construction of these facilities did not commence after the appli-
cable new source date for the NSPS. Moreover, they are no longer entitled to the 10-year protection
3-16
-------
period in 40 CFR 122.29(d) because that time period has expired. They must meet the BAT require-
ments of the new ELGs.
(2) Large CAFOs formerly defined as CAFOs under the 1976 NPDES regulations that commenced con-
struction between April 1993 and April 14, 2003.
These facilities would have been required to have a permit under the 1976 NPDES CAFO require-
ments. Because construction of these facilities commenced after the applicable new source date for
the 1974 NSPS, they were subject to NSPS under the 1974 CAFO ELGs. These facilities are not
new sources under the 2003 NSPS because construction of the facilities did not commence after
the applicable 2003 new source date. They may or may not still be subject to the 10-year protection
period in 40 CFR 122.29(d), depending, generally speaking, upon the sooner of either the date that
construction was completed or the date that a discharge occurred (there is a third consideration relat-
ing to the period of depreciation or amortization of the facility). Permits for these facilities should
include a provision indicating that they are subject to the 1974 NSPS requirements until their 10-year
protection period expires. The permit should state that, after the 10-year period expires, they are
immediately subject to BAT under the new 2003 ELGs. Of course, even where new permits include
the "old" NSPS because of the 10-year protection period, they will still include the new NPDES best
management practices required as conditions in 40 CFR 122.42(e) (once State NPDES authorities
have been revised), which would take effect immediately for these facilities. New permits could also
include requirements for such sources based on water quality standards, where applicable.
(3) Existing AFOs newly defined as Large CAFOs under the 2003 NPDES regulations that commenced
construction prior to April 14, 2003.
These facilities were not defined as CAFOs under the 1976 NPDES CAFO provisions (whether or
not they were included as feedlots by the 1974 ELGs). They include facilities that appropriately
qualified for the 25-year/24-hour storm exemption and facility types, such as dry litter chicken
operations, that were not included in the definitions. These AFOs would be defined as CAFOs by the
new requirements, they are new dischargers (not new sources) and subject to BAT (not NSPS) under
the new ELGs.
(4) AFOs defined as Large CAFOs under the 2003 NPDES regulations that commenced construction
after April 14,2003.
Any facility defined as a Large CAFO under the 2003 NPDES regulations that commenced construc-
tion after April 14, 2003, is subject to NSPS under the new ELGs.
3.3.4 Which are newly
The NPDES regulation establishes different time frames during which operations must seek coverage
under an NPDES permit based upon their status when the regulations became effective. Newly defined
CAFOs are those operations that are defined as CAFOs as of April 14, 2003, but were not defined as
CAFOs prior to that date. These existing operations have not made changes that resulted in the operation
being defined as a CAFO; rather, they have become defined as CAFOs by virtue of the rule changes that
became effective on April 14, 2003. Such operations include:
• Dry chicken operations (operations that did not use a liquid manure handling or a continuous over-
flow watering system)
« Stand-alone immature swine and heifer operations
« AFOs that appropriately claimed the 25-year, 24-hour storm permit exemption before April 14, 2003.
3-17
-------
New discharger CAFOs are those operations that become defined as CAFOs after April 14, 2003, but
that are not defined as "new sources" in accordance with the new source criteria. Such operations may
be new, but not subject to NSPS and therefore not "new sources," or may have changed some aspect
of their operations after April 14, 2003, such that they become defined as CAFOs. The following are
examples of such operations:
• A newly constructed Medium CAFO operation (constructed after April 14, 2003), because the CAFO
NSPS apply only to Large CAFOs
« An existing operation that increases the number of animals confined and thus meets the threshold of
a CAFO, but does not meet the definition of a new source.
Existing CAFOs as of April 14, 2003, are those operations that met the definition of a CAFO under the
CAFO regulations in place at that time or any operation that otherwise met the CAFO definition, but
erroneously claimed the 25-year, 24-hour storm event exemption that existed prior to April 14, 2003.
3.3.5 What is the "no to
The NPDES CAFO regulations require all CAFOs to apply for a permit. An exception is that in lieu of
a permit application, Large CAFOs can request a "no potential to discharge" determination from the
permitting authority where there is no potential for any CAFO manure, litter, or process wastewater to
be added to waters of the United States under any circumstances or climatic condition. If the permitting
authority makes a determination that the CAFO has "no potential to discharge", the operation would
not need to apply for an NPDES permit. The "no potential to discharge" determination is not relevant to
small or medium operations because these operations are defined or designated as CAFOs based on the
existence of a discharge. It is important to note that the "no potential to discharge" determination applies
to both the production area and land application areas under the control of the CAFO. The "no potential
to discharge" determination process may include a site visit to verify the information submitted by the
CAFO operator or to gather additional information necessary to make the determination.
3.3.5.1 What information to be provided by the CAFO to support a request for a "no potential
to discharge" determination?
If a Large CAFO chooses to make a request for a "no potential to discharge" determination, it must
submit to the permitting authority sufficient documentation to support the claim. The documentation
submitted by the CAFO requesting the determination must include the information required for a permit
application, as specified in 40 CFR 122.21(f) and (i)(l)(i) through (ix). Appendix E provides an example
of a "no potential to discharge" determination request form that can be used by the permitting author-
ity. This information will serve as the primary basis for determining whether the facility meets the "no
potential to discharge" standard. In many cases this information will be sufficient to make the determi-
nation. The permitting authority may request a written justification, supported by the information that
has been submitted, documenting the technical basis for granting a "no potential to discharge" deter-
mination. In making such a determination, the Director of the permitting authority may wish to request
additional information to ensure the operation meets the "no potential to discharge" standard (e.g.,
regional rainfall; soil; hydrological conditions; supplemental, site-specific information, including use of
an on-site inspection).
3-18
-------
3.3.5.2 What is the tinting of a "no potential to discharge" request?
The owner or operator must request a "no potential to discharge" determination by the applicable permit
application date specified in 40 CFR 122.23(g). Within 90 days of receiving the request, the Director
will inform the CAFO whether or not the request has been granted. During this review period, a CAFO
that has submitted a request for a "no potential to discharge" determination does not have a duty to seek
coverage under an NPDES permit. The 90-day period begins once the permitting authority has all of
the information necessary to make a determination. The permitting authority may need to request addi-
tional information from the operation and conduct a site visit to verify submitted information or gather
additional information. If the "no potential to discharge" request is denied, the CAFO must seek permit
coverage within 30 days following the denial (i.e., submit a completed NOI or permit application, as
directed by the permitting authority). Appendix F presents an example of a tracking form that can be
used by the permitting authority to facilitate the review and processing of these requests.
3.3.5.3 What are the criteria to be used in making a "nopotential to discharge" determination?
EPA's intention is that the term "no potential to discharge" is to be narrowly applied by permitting
authorities. This provision is intended to be a protective standard that does not require an NPDES permit
only where the Large CAFO can demonstrate to a degree of certainty that it has "no potential to dis-
charge" to the waters of the United States from either its production or land application areas. The "no
potential to discharge" status is intended to provide relief where there truly is no potential for a CAFO's
manure or wastewater to reach waters of the United States under any circumstance or climatic condi-
tion. In particular, the fact that an operation has developed and is implementing a site-specific nutrient
management plan addressing the land application areas of the CAFO does not by itself provide a basis
for making a "no potential to discharge" determination. To the contrary, land application of manure and
wastewater would, in most cases, be enough by itself to indicate that a CAFO does have the potential
to discharge (although conceivably "no potential to discharge" could be shown based on the physical
features of the site, such as a lack of proximity to waters of the United States).
The specific criteria to be used in making a determination of "no potential to discharge" are established
at the discretion of the permitting authority. This guidance provides examples of some sector-specific
operational characteristics that may result in a determination of "no potential to discharge" (see Exhibit
3-1). Provided below are recommended criteria for any "no potential to discharge" determination. These
recommended criteria are
« All manure and wastewater within the production area, including solids, liquids, and litter, are pro-
tected from contact with rainfall, regardless of the severity of the event.
* Provisions are made for adequate storage of manure and process wastewater and the storage area is
protected such that the potential for rainfall runoff is eliminated.
« Manure and wastewater are not land applied (except in arid climates and where runoff will not reach
waters of the United States).
* All manure and wastewater generated by the operation will be transferred to other persons.
* All operations, including mixed animal operations, will need to address the potential to discharge
from all production and land application areas.
« The operation is not located in a 100-year floodplain.
« The operation is not located in a watershed impaired by nutrients or pathogens.
3-19
-------
Exhibit 3-1. Generic Sector-Specific Example NPTD Operations
DAIRY CATTLE SECTOR - EXAMPLE NPTD OPERATION
* All cows are housed under roof at all times
• Manure and wastewater are not land applied
« Manure and wastewater will be transferred to other persons
• Not located in floodplain
« No potential to discharge under any circumstance or climatic condition
SWINE SECTOR - EXAMPLE NPTD OPERATION
« All hogs are housed under roof at all times
• Manure and wastewater storage is provided under the barn
« Manure and wastewater are not land applied
• Manure and wastewater will be transferred to other persons
* Not located in floodplain
• No potential to discharge under any circumstance or climatic condition
POULTRY SECTOR - EXAMPLE NPTD OPERATION
• Poultry are confined to enclosed houses
« No pollutants are exhausted from houses that may come into contact with stormwater
• All litter is stored under roof and properly protected from rainfall
« Litter is not land applied
• Litter will be transferred to other persons
« Not located in floodplain
• No potential to discharge under any circumstance or climatic condition
MIXED ANIMAL OPERATION* - EXAMPLE NPTD OPERATION
• All animals are housed under roof at all times
* Manure and wastewater storage is provided underneath the barn
• Manure and wastewater are not land applied
« Manure and wastewater will be transferred to other persons
• Not located in floodplain
« No potential to discharge under any circumstance or climatic condition
* Where at least one animal type meets the threshold of a Large CAFO
BEEF CATTLE SECTOR - EXAMPLE NPTD OPERATION
« Based upon existing industry practices most beef cattle operations will probably not qualify for an NPTD determination. This
is based on the following factors:
• Beef cattle are generally not housed in roofed facilities
« It is difficult to provide storage adequate to prevent discharge, although discharge may be unlikely in arid conditions
• In most cases liquid effluent is land applied
« Only manure solids can be sent to regulated compost facilities or other processing operations
3-20
-------
3.3.5.4 What are the public notice requirements associated with a "no potential to discharge " deter-
tmination?
Once all of the information necessary for the permitting authority to make a "no potential to discharge"
determination has been submitted, and before making a final decision to grant a "no potential to dis-
charge" determination, the permitting authority must issue a public notice stating that a "no potential
to discharge" request has been received. This public notice must be accompanied by a fact sheet which
includes, when applicable: (1) a brief description of the location and type of facility or activity which
is the subject of the "no potential to discharge" determination; (2) a brief summary of the factual basis
upon which the request is based, for granting the "no potential to discharge" determination; and (3) a
description of the procedures for reaching a final decision on the "no potential to discharge" determi-
nation. The decision to grant a "no potential to discharge" determination must be based on the admin-
istrative record, which includes all information submitted in support of a "no potential to discharge"
determination and any other supporting data gathered by the permitting authority.
3.3.5.5 What is the effect of a "no potential to discharge " determination ?
If a permitting authority issues a "no potential to discharge" determination the operation remains defined
as a CAFO, but the CAFO is exempted from the duty to apply requirements. However, the issuance of a
determination by the permitting authority does not provide any relief from potential penalties under the
Clean Water Act if the operation has a discharge in the future. A discharge from the operation would be
a discharge from a point source without a permit, which is a violation of the Clean Water Act. Permitting
authorities may elect to follow up with the facility to determine whether the basis for the "no potential to
discharge" determination has changed and the facility should apply for an NPDES permit. When issu-
ing a "no potential to discharge" determination, the notice to the facility operator should state that the
permitting authority retains the right to collect additional information and conduct on-site inspections to
verify the operational status of the facility.
3-21
-------
3-22
-------
4.0 WHAT ARE THE ELEMENTS OF AN NPDES PERMIT FOR A CAFO?
The elements of an NPDES permit for a CAFO are the same as those issued to other point sources.
These elements consist of a cover page, effluent limitations, monitoring and reporting requirements,
record keeping requirements, special conditions, and standard conditions (see Table 4-1). For additional
details on the elements of an NPDES permit, refer to the U.S. EPA NPDES Permit Writers 'Manual
(EPA-833-B-96-003).
Table 4-1. Elements of an NPDES Permit
Element
Cover Page
Effluent Limitations and
Standards
Monitoring and Reporting
Requirements
Record Keeping Require-
ments
Special Conditions
Standard Conditions
Description
Serves as the legal notice of the applicability of the permit, provides the authority under
which it is issued, and contains appropriate dates and signature(s).
Serves as the primary mechanism for controlling discharges of pollutants to receiving
waters (e.g., the specific narrative or numeric limitations applied to the facility and the point
of application of these limits).
Identifies all of the specific conditions related to the types of monitoring to be performed.
the frequencies for collecting samples or data, and how to record, maintain, and transmit
the data and information to the permitting authority. Section 4.3 of this guidance addresses
monitoring and reporting requirements for NPDES permits for CAFOs.
Specifies the types of records to be kept on-site at the permitted facility (e.g., inspection
and monitoring records; waste and soil sampling results; time, amount, and duration of
land application activities: precipitation records; records of recipients of waste intended for
application on land outside the operational control of the CAFO facility', etc.).
In NPDES permits for CAFOs. special conditions must include (1) the requirement to
develop and fully implement a nutrient management plan, and (2) the requirement that the
nutrient management plan address nine minimum practices defined in the regulation. In
addition, NPDES permits for CAFOs may include other special conditions as determined
necessary by the permitting authority.
Conditions that apply to all NPDES permits, such as the requirement to properly operate
and maintain all facilities and systems of treatment and control, as specified in 40 CFR
122.41.
4.1 What Are the Effluent Limitations and Standards for CAFOs?
Section 301 of the Clean Water Act prohibits the discharge of pollutants from a point source into waters
of the United States except in accordance with an NPDES permit. Effluent limitations serve as the pri-
mary mechanism in NPDES permits for controlling discharges of pollutants to receiving waters. When
developing effluent limitations for an NPDES permit, a permit writer must consider limits based on both
the technology available to control the pollutants (i.e., technology-based effluent limits) and limits that
are protective of the water quality standards of the receiving water (i.e., water quality-based effluent
limits).
The intent of technology-based effluent limits in NPDES permits is to achieve a minimum level of
treatment of pollutants for point source discharges based on available treatment technologies. For Large
CAFOs the technology-based effluent limitations are defined in 40 CFR Part 412.
In those cases where it is determined that technology-based effluent limits are not sufficient to ensure
that water quality standards, designed to protect the water quality, will be attained in the receiving water,
the Clean Water Act [Section 303(b)(l)(c)] and NPDES regulations [40 CFR 122.44(d)] require that
the permit writer develop more stringent, water quality-based effluent limits. Additional information on
4-1
-------
water quality-based effluent limits can be found in Chapter 6 of the U.S. EPA NPDES Permit Writer's
Manual (http://www.epa.gov/npdes/pubs/chapt_06.pdf). Section 4.1.5 describes an exception to the
requirement for CAFO land application areas.
4.1.1 What are the applicable technology standards for CAFOs1?
The CAFO ELG, published on February 12, 2003, is applicable only to those operations that meet the
regulatory definition of a Large CAFO (See section 3.2.2). The CAFO ELG establishes the technol-
ogy-based effluent limitations and standards for Large CAFOs. Table 4-2 provides a summary of the
ELG applicable to each animal sector. In the case
of Medium and Small CAFOs the permit writer
will need to develop effluent limitations (including
the technology-based limitations and standards) on
a case-by-case basis. The authority to issue case-
by-case based permit limitations comes from Sec-
tion 402(a)(l) of the Clean Water Act and 40 CFR
122.44(a) and 125.3. These case-by-case effluent
limits are referred to as best professional judgement
(BPJ) permit limitations.
The ELG for Large CAFOs is defined at 40 CFR Part 412.
Permit limitations are based on BPJ when national
Regulatory Citation -
Section 301 of the Clean Water Act prohibits the discharge of
pollutants from a point source into waters of the United States
except in accordance with an NPDES permit.
The NPDES permit regulations at 40 CFR Part 122.44 implement
Section 301 by requiring that each NPDES permit issued under
Section 402 include conditions that meet technology-based
effluent limitations and standards, as well as water quality-based
effluent limitations and State requirements.
effluent limitations guidelines that apply to the
appropriate industrial category, or to the particular process involved, have not been issued. For example,
there is no ELG for Small or Medium CAFOs or for "exotic" animal species, and there is no applicable
ELG for the land application areas at large horse, sheep, or duck CAFOs. Given the similarity in the
operational characteristics of CAFOs, in many cases permit writers may find that it is appropriate to
develop BPJ effluent limitations for Medium and Small CAFOs that are the same as or similar to the
effluent limitations for Large CAFOs. Permit writers may also establish different technology-based
limitations for Medium and Small CAFOs based on BPJ. For example, in some cases permit writers may
find it appropriate to develop BPJ technology-based limitations that focus on the site-specific circum-
stances that resulted in the small or medium-sized AFO being defined or designated as a CAFO in the
first place.2
4.1.2 What are the technology-based effluent limitations for Large CAFOs?
ELG regulations for feedlots [40 CFR Part 412] establish the technology-based effluent limitations
applicable to NPDES permits for Large CAFOs (see Table 3-1). The ELG is broken into the following
subparts addressing specific animal sectors:
• Subpart A: Horses and Sheep
• Subpart B: Ducks
'The NPDES permit regulations require that all permits issued after June 30, 1981 include best conventional pollutant control technology
(BCT) and best available technology economically achievable (BAT) technology-based effluent limitations based on national guidelines
and standards, or on a case-by-case determination of appropriate effluent limitations, or a combination of the two. The CAFO ELG was
originally promulgated in 1974 and was revised in 2003.
2There are other circumstances where a permit writer can use BPJ or special permit conditions to address specific discharges at a CAFO.
For example, the CAFO ELG does not address plate chiller water, filter backwash water, pollutants (such as manure, leathers, and feed)
which have fallen to the ground immediately downwind from confinement building exhaust ducts and ventilation fans and are carried by
storm water runoff to waters of the United States; and certain uses of disinfectants in the production area.
4-2
-------
Subpart C: Dairy Cows and Cattle other than Veal Calves
Subpart D: Swine, Poultry, and Veal Calves
Table 4-2. Effluent Limitations Summary
Animal Sector
Large CAFOs
Subpart A - Horses and sheep
Subpart B - Ducks
Subpart C - Dairy cows and cattle other than veal calves
Subpart D - Swine, poultry, and veal calves
Medium CAFOs - Horses, sheep, duck, dairy cows, cattle, swine, poultry, and veal calves
Small CAFOs - Horses, sheep, duck, dairy cows, cattle, swine, poultry, and veal calves
Other CAFOs - Alligators, geese, emus, ostriches, mink, bison, etc.
ELG Technology-
Based Limits
40 CFR Part 41 2
40 CFR 412.13
40 CFR 412.22
40 CFR 4 12.33 and
412.37
40 CFR 4 12.45 and
412.47
BPJ
BPJ
BPJ
All four subparts include specific discharge limitations. Subparts A and B contain requirements only for
the production area. Requirements for land application areas under the control of the CAFO operator at
these operations would be established by the permitting authority using BPJ. Subparts C and D include
specific requirements for both the production areas and land application areas under the control of the
CAFO owner or operator. Land application under the control of the CAFO includes situations where the
CAFO owns, rents, or leases the land to which manure, litter, or process wastewater from the production
area is applied. This may also include situations where a farmer releases control over the land appli-
cation area and the CAFO determines when and how much manure is applied to fields not otherwise
owned, rented, or leased by the CAFO.
Regulatory Citation -
Production area means that part of an AFO that includes the animal confinement area, the manure storage area, the raw
materials storage area, and the waste containment areas. The animal confinement area includes but is not limited to open lots,
housed lots, feedlots, confinement houses, stall barns, free stall barns, milkrooms, milking centers, cowyards, barnyards,
medication pens, walkers, animal walkways, and stables. The manure storage area includes but is not limited to lagoons, runoff
ponds, storage sheds, stockpiles, under house or pit storages, liquid impoundments, static piles, and composting piles. The raw
materials storage area includes but is not limited to feed silos, silage bunkers, and bedding materials. The waste containment
area includes but is not limited to settling basins, and areas within berms and diversions which separate uncontaminated storm
water. Also included in the definition of production area is any egg washing or egg processing facility, and any area used in the
storage, handling, treatment, or disposal of mortalities. [40 CFR 412.2(h)]
Land application area means land under the control of an AFO owner or operator, whether it is owned, rented, or leased, to
which manure, litter, or process wastewater from the production area is or may be applied. [40 CFR 412.2(e)]
4.1.2.1 Wluit are the ELG3 requirements for operations covered by Subpart A - Horses and Sheep?
What are the production area ELG requirements?
All Operations. Large horse and sheep CAFOs may not discharge manure or process wastewater pol-
lutants to waters of the United States from the CAFO (i.e., "no discharge"). Whenever rainfall events,
3These requirements reflect BAT.
4-3
-------
either chronic or catastrophic, cause an overflow of process wastewater from a facility designed, con-
structed, and operated to contain all process generated wastewater plus the runoff from a 25-year,
24-hour rainfall event for the location of the CAFO, any process wastewater pollutants in the overflow
may be discharged into waters of the United States.
4.1.2.2 Wliat are the ELG Requirements for Operations Covered by Subpart B - Ducks?
All Operations. All duck operations that meet the applicability requirements of the ELG must meet spe-
cific discharge limitations established by 40 CFR 412.22. Subcategory B is the only subcategory of the
CAFO ELG that includes numeric discharge limitations for the production area.
Regulated parameter
BOD,
Fecal coliform
Maximum
daily1
3.66
(3)
Maximum
monthly
average1
2.0
(3)
Maximum
daily2
1.66
(3)
Maximum
monthly
average2
0.91
(3)
'Pounds per 1000 ducks
2Kilograms per 1 000 ducks
3Not to exceed MPN of 400 per 1 00 mL at any time
4.1.2.3 Wliat are the ELG requirements for operations covered by Subparts C and D - Large Beef,
Dairy, Heifer, Poultry, Swine, and Veal CalfCAFOs?
What are the production area ELG requirements?
Existing Sources. Large beef, dairy, heifer, swine,
poultry, and veal calf CAFOs that are not new
sources may not discharge manure or process
wastewater pollutants from the production area. An
exception is that whenever precipitation causes an
overflow of manure, litter, or process wastewater,
pollutants in the overflow may be discharged pro-
vided (1) the production area is designed, construct-
ed, operated, and maintained to contain all manure,
litter, and process wastewater including the runoff
and direct precipitation from the 25-year, 24-hour
rainfall event; and (2) the production area is oper-
ated in accordance with the additional measures and
record keeping requirements as specified in 40 CFR
412.37(a) and (b). No discharges are allowed in the
absence of a properly designed, constructed, oper-
ated, and maintained storage structure.
The requirement concerning a properly designed, constructed, operated, and maintained storage struc-
ture applies to manure, litter, and process wastewater whether stored close to or far away from the
animal confinement area. Properly designed storage structures should reflect the maximum length of
time anticipated between emptying events. The frequency of emptying events (or "dewatering") may
vary based on the total available storage capacity, the hydraulic limitations of the land application areas,
the nutrient content and concentration in the storage structure, the appropriate timing of application as
specified in the applicable technical standards for nutrient management, and the extent to which the stor-
Regulatory Citation -
Process wastewater means water directly or indirectly
used in the operation of the CAFO for any or all of the
following:spillage or overflow from animal or poultry
watering systems; washing, cleaning, or flushing pens;
barns, manure pits, or other CAFO facilities; direct contact
swimming, washing, or spray cooling of animals; or dust
control. Process wastewater also includes any water which
comes into contact with any raw materials, products, or
byproducts, including manure, litter, feed, milk, eggs, or
bedding. [40 CFR 412.2(g)]
Overflow means the discharge of manure or process
wastewater resulting from the filling of wastewater or
manure storage structures beyond the point at which no
more manure, process wastewater, or storm water can be
contained by the structure. [40 CFR 412.2(g)]
4-4
-------
Proper operation maintenance
Proper operation and maintenance (O&M) is a standard
condition in all NPDES permits [40 CFR 122.41 (e)].
Proper O&M of storage structures includes activities such
as periodic solids removal to maintain storage capacity,
maintenance of berms and sidewalls, prompt repair of any
deficiencies, and appropriate dewatering activities. CAFOs
must actively manage storage structures to maintain the
appropriate capacity (e.g., the capacity to contain the
runoff and precipitation from the 25-year, 24-hour storm
event).
Freeboard
The term freeboard is not used in the regulation, and is
not defined by EPA, EPA encourages the use of Natural
Resources Conservation Service (NRCS) and American
Society of Agricultural Engineers (ASAE) standards that
use freeboard to describe a safety feature designed to
protect the integrity of the lagoon. As described in this
guidance, freeboard is not treated as volume for additional
storage capacity.
age structure is used for irrigation water. The design
storage volume should reflect all wastes accumu-
lated during the storage period; normal precipita-
tion less evaporation during the storage period;
normal runoff during the storage period; the direct
precipitation from a 25-year, 24-hour storm event;
the runoff from the 25-year, 24-hour storm event;
residual solids after liquid has been removed; neces-
sary freeboard to maintain structural integrity; in
the case of treatment lagoons, a minimum treatment
volume; and additional storage to meet management
goals or other regulatory requirements.
If the storage structure is properly designed, con-
structed, operated, and maintained, an overflow may
occur and be in compliance with effluent limitations
based on 40 CFR Part 412. To be in compliance,
the storage structure must be properly designed,
which includes a storage volume that should reflect
the maximum length of time anticipated between
emptying events and other factors described above.
This storage volume should also accommodate wastes, precipitation, and runoff for this period of time.
Therefore, properly designed systems should already account for the "rainy season" or the non-growing
season typical of the CAFO's location. When a series of rainfall events (such as chronic rainfalls) pre-
cludes dewatering, the capacity of the storage structure is reduced. Even so, it is highly unlikely that any
given series of storms would result in an overflow, unless the series of storms occurs so close to the end
of the design storage period that the storage structure is already filled close to capacity. When dewater-
ing is not possible, a rainfall event of any size, both smaller and larger than the 25-year, 24-hour storm
event, could result in an overflow that is in compliance with effluent limitations based on 40 CFR Part
412. The permissible overflow should be limited to that necessary to maintain the structural integrity of
the storage structure. The nutrients from these dewatering events would need to be reflected in the nutri-
ent management plan developed and implemented by the CAFO. CAFOs that do not actively maintain
the capacity of the storage structure, such as CAFOs with minimal capacity and that start dewatering
only when the storage structure is completely full, are not entitled to this overflow allowance.
Runoff from raw material storage such as silos and feed bunkers is included in the definition of process
wastewater and is included in the ELG production area requirements. Production area discharges are
allowed only when they consist of weather-related overflows, and only in those cases where a storage
structure has been designed, constructed, operated, and maintained in accordance with ELG require-
ments. In the absence of a properly designed, constructed, operated, and maintained storage structure no
discharge is allowed from the production area, including raw material storage areas.
The definition of process wastewater includes, among other things, water used for direct contact wash-
ing, and any water that comes into contact with or is a constituent of any raw materials, products, or
byproducts, including feed, milk, eggs, or bedding as well as manure and litter. Therefore process
wastewater may include, for example, water that comes into contact with spilled feed, contaminated
milk, spent foot bath water, and other trace quantities of chemicals used at the operation. CAFOs should
minimize the use of potentially harmful chemicals and contaminants and ensure that these products are
used according to label instructions and disposed of properly. For example, it may not be consistent with
4-5
-------
What are the additional measures and record keeping requirements for the production [40 CFR
412.37 (a) and (b)]?
The NPDES permit must include the following additional measures as set forth in the CAFO ELG:
• Routine visual inspections of the CAFO production area. At a minimum the following must be visually inspected:
- Weekly visual inspections of all storm water diversion devices, runoff diversion structures, and devices channeling
contaminated storm water to the wastewater and manure storage and containment structure
- Daily visual inspections of all water lines, including drinking water or cooling water lines
- Weekly inspections of the manure, litter, and process wastewater impoundments; the inspection will note the level in
liquid impoundments as indicated by the depth marker
« Any deficiencies found as a result of these inspections must be corrected as soon as possible.
« Installation of depth markers in all open surface liquid impoundments (for example the depth marker is not required in
under-house pits) that clearly indicate the minimum capacity necessary to contain the runoff and direct precipitation of the
25-year, 24-hour rainfall event or the 100-year, 24-hour rainfall event, whichever is applicable.
* No disposal of animal mortalities in any liquid manure or process wastewater systems and the handling of animal
mortalities so as to prevent discharge of pollutants to waters of the United States, unless alternative technologies pursuant
to 40 CFR 412.31 (a)(2) and approved by the Director are designed to handle mortalities.
« Complete on-site records documenting implementation of all required additional measures and any other records specified
by the permitting authority. Table 4-6 provides an integrated list of the specific records required by the NPDES and ELG
regulations for Large CAFOs.
chemical labels to dispose of rinse water from spent chemical containers in the storage structure. The
permit writer should place additional restrictions in the permit where necessary.
New Sources. Large beef and dairy operations that are new sources have the same production area
requirements as existing operations.4 Large swine, poultry, and veal calf CAFOs that are new sources
may not discharge manure, litter, or process wastewater into waters of the United States from the pro-
duction area. Waste management and storage facilities designed, constructed, operated, and maintained
to contain all manure, litter, and process wastewater, including the runoff and direct precipitation from
a 100-year, 24-hour rainfall event and operated in accordance with the additional measures and records
required by the ELG are deemed to meet this requirement.
What are the land application area ELG requirements?
Each CAFO subject to the ELG requirements in subparts C and D that land applies must do so in accor-
dance with certain practices. A general description of these practices is as follows (see the regulations
for further details):
« Develop and implement a nutrient management plan;
« Land apply manure, litter, and process wastewater at application rates that minimize phosphorus
and nitrogen transport from the field to waters of the United States in compliance with the technical
standards for nutrient management established by the permitting authority. The technical standard for
nutrient management must include a field-specific assessment of the potential for nitrogen and phos-
phorus transport from the field to waters of the United States and address the form, source, amount,
timing, and method of application of nutrients on each field to achieve realistic production goals
while minimizing nitrogen and phosphorus movement to waters of the United States. The standard
4These include the additional measures and record keeping requirements specified in 40 CFR 412.37 (a) and (b).
4-6
-------
shall also include appropriate flexibility for any CAFO to implement nutrient management practices
to comply with the standard such as consideration of multi-year phosphorus application on fields that
do not have a high potential for phosphorus runoff to waters of the United States and phased imple-
mentation of phosphorus-based nutrient management, as determined appropriate by the Director;
Analyze manure at least once a year for nitrogen and phosphorus content, and analyze soil at least
once every 5 years for phosphorus content. The results of these analyses are to be used in determin-
ing application rates for manure, litter, and other process wastewater;
Periodically inspect equipment used for land application of manure, litter, or process wastewater for
leaks;
Do not apply manure, litter, and process wastewater closer than 100 feet to any down-gradient waters
of the U.S., open tile line intake structures, sinkholes, agricultural well heads, or other conduits
to waters of the United States. Instead of the 100-foot setback the CAFO can either use a 35-foot
vegetated buffer or demonstrate implementation of alternative conservation practices or field-specific
conditions will provide pollutant reductions equivalent or better than the reductions that would be
achieved by the 100-foot setback. Where an operation elects to implement conservation practices or
field-specific conditions to provide equivalent pollutant reductions, the permitting authority should
require the operation to be covered under an individual permit to account for the site-specific nature
of the conditions and practices being employed; and
Complete on-site records documenting implementation of all required best management practices
(BMPs) and any additional records specified by the permitting authority (see Section 4.2 and Table
4-6 for additional information).
ELG Requirements Summary - Subparts C and D
Existing Sources
New Sources
Subpart C
40 CFR 412.4, 412.30 - 412.33, and
412.37
40 CFR 412.4, 412.35, and 412.37
Subpart D
40 CFR 412.4, 412.40 - 412.45, and
412.47
40 CFR 412.4, 412.46, and 412.47
4.1.2.4 Wliat must the technical standards for nutrient management address?
The ELG determination of appropriate application practices for manure, litter, and process wastewater
must be done in accordance with the technical standards established by the Director. These technical
standards must include a field-specific assessment of the potential for nitrogen and phosphorus transport
from the field to waters of the United States. In addition, the standards must address the form, source,
amount, timing, and method of application of nutrients on each field to achieve realistic production
goals, while minimizing nitrogen and phosphorus movement to waters of the United States.
Technical standards for nutrient management should appropriately balance the nutrient needs of crops
and potential adverse water quality impacts in establishing methods and criteria for determining appro-
priate application rates. The field-specific assessment provides CAFOs with the information needed to
determine whether manure nutrients should be applied at a nitrogen or phosphorus rate, or if no manure
application is appropriate. CAFOs may apply conservation practices, best management practices, or
management activities to their land application areas, which in aggregate may reduce field vulnerability
to off-site phosphorus transport to waters of the United States.
There are certain instances in which there may be an increased likelihood that runoff from CAFO land
application areas may reach waters of the United States. The times include when the ground is saturated
4-7
-------
with water, when rain falls during or soon after (e.g., within 24 hours) application, and when the ground
is frozen or covered with snow or ice. The ELG does not establish national requirements prohibiting
manure application to frozen, snow-covered, or saturated ground because runoff associated with such
applications depends on a number of site-specific variables, including climate and topographic vari-
ability, distance to waters of the United States, and the slope of the land. States are better able to tailor
their technical standards to reflect the site-specific conditions that warrant prohibitions or limitations on
manure applications to frozen, snow-covered, or saturated ground. The Director should address these
factors in a manner similar to that described below when establishing the State nutrient management
technical standard.
To minimize movement of nutrients to waters of the United States, technical standards for nutrient man-
agement should prohibit application of manure and process wastewater to saturated ground where appro-
priate. The technical standards should prohibit surface application of manure and process wastewater
during rainfall and when rainfall is expected soon after a planned application, if the rainfall may produce
runoff and the runoff may enter waters of the United States. The standards should either prohibit appli-
cation of manure and process wastewater on snow, ice, and frozen ground, or include specific protocols
that CAFO owners or operators, nutrient management planners, and inspectors will use to conclude
whether or not application to a frozen or snow- or ice-covered field (or a portion thereof) poses a reason-
able risk of runoff. Where there is a reasonable risk, the standards should prohibit application to the field
or relevant portion thereof during times when the risk exists or may arise.
Protocols for land application in the winter should account for the form of the material that would be
applied (e.g., liquid, semi-solid, or dry manure or process wastewater). In addition, they should address
the time at which the material would be applied relative to periods when runoff may occur, the fraction
of precipitation that runs off the land in meltwater and in response to winter rains (as affected, in part, by
whether soil is frozen or not), the time it takes runoff to travel to waters of the United States (as affected
by the slope of the land, distance to waters, roughness of the land surface, and whether or not runoff is
in contact with the land surface), and other relevant factors, as appropriate. Manure, litter, and process
wastewater storage structures need to include adequate capacity to store material that accumulates dur-
ing those times when, under the technical standards for nutrient management, land application would be
prohibited.
The technical standards for nutrient management shall also include appropriate flexibilities for any
CAFO to implement nutrient management practices to comply with the standards. Flexibilities should
include consideration of multi-year phosphorus application (also called phosphorus banking) on fields
that do not have a high potential for phosphorus runoff to waters of the United States, implementation of
phosphorus-based management phased in over time, and other components as determined appropriate by
the Director.
Phosphorus banking is a multi-year approach that allows a single application of phosphorus applied
as manure at a rate equal to the recommended phosphorus application rate or estimated phosphorus
removal in harvested plant biomass for the crop rotation or multiple years in the crop sequence. The field
would not receive additional phosphorus until the amount applied in the single year had been removed
through plant uptake and harvest. In practice, multi-year phosphorus applications would be based on
application rates achievable with a CAFO's application equipment. Under any multi-year application,
the rate at which manure nutrients are applied would not exceed the annual nitrogen recommendation of
the year of application or would application be made on sites determined inappropriate based on a high
potential for phosphorus runoff to waters of the United States.
4-8
-------
4.1.2.5 What are voluntary alternative performance standards ?
The voluntary alternative performance standards provision in 40 CFR 412.3 l(a)(2) applies to new and
existing Large CAFOs subject to 40 CFR Part 412, Subpart C (dairy cows and cattle other than veal
calves), and existing Large CAFOs subject to Subpart D (swine, poultry, and veal calves). This provision
applies only to discharges from the production area. The alternative performance standard provides that
any Large CAFO may request from the Director NPDES permit effluent limitations based on site-specif-
ic alternative technologies where the CAFO can establish that the alternative technologies would achieve
a quantity of pollutants discharged from the production area equal to or less than the quantity of pollut-
ants that would be discharged under the applicable baseline effluent guidelines performance standards.
For example, the production area baseline for existing Large swine, poultry, and veal calf CAFOs and
for new source and existing Large beef, dairy and heifer CAFOs prohibits the discharge of manure, litter,
or process wastewater except when rainfall events cause an overflow from a storage structure designed,
constructed, operated, and maintained to contain all manure, litter, and process wastewater plus the run-
off from a 25-year, 24-hour rainfall event.
Thus, a Large CAFO seeking permit conditions based on the voluntary alternative performance standard
would have to establish, by submitting technical analyses and other relevant information and data speci-
fied in the regulation, first, the predicted discharge based on the baseline effluent guidelines, and second,
that its technologies and management practices result in equivalent or improved pollutant reductions for
the production area. Land application requirements remain unchanged. Since the production area base-
line provides for no discharge except in specified circumstances, the alternative standard should take into
account those circumstances where discharges do occur under the baseline (i.e., extreme rainfall events).
The regulations accomplish this primarily by requiring calculation of the median annual overflow vol-
ume based on an extended period (25 years) of actual rainfall data (and subsequently calculation of a
predicted average annual discharge of pollutants). Note that under the alternative standard, the manage-
ment practices and additional measures specified in the effluent guidelines (e.g., 40 CFR 412.4, 412.37,
412.47) and that apply to the production area and/or land application areas at Large CAFOs remain
applicable to all Large CAFOs (existing and new sources) regardless of whether a CAFO's NPDES
permit limitations are based on the baseline effluent guidelines or the alternative performance standards.
In some cases specific requirements may no longer be applicable based on the alternative performance
standard; for example, if under an alternative performance standard the operation did not have a liquid
storage structure, the depth marker requirement would no longer be applicable. Also note that Large
CAFOs seeking permit conditions based on the voluntary alternative performance standards must still
meet water quality standards and any other applicable federal, State, and local requirements.
4.1.2.6 What are the voluntary superior environmental performance standards for new Large swine,
poultry, and veal calf CAFOs?
The voluntary superior environmental performance standards provision in 40 CFR 412.46(d) is available
to new source Large CAFOs subject to 40 CFR Part 412, Subpart D (swine, poultry and veal calves).
This provision provides that these CAFOs may request from the Director alternative NPDES permit
effluent limitations based upon a demonstration by the CAFO that site-specific innovative technologies
will achieve overall environmental performance across all media that is equal to or superior to the reduc-
tions achieved by the baseline standards as provided by §412.46(a), which contains the Subpart D, new-
source CAFO production area standards. In effect, an operation must determine the quantity of produc-
tion area pollutant discharges under the baseline ELG and compare this with the quantity of pollutants
released to all media under alternative effluent limitations, including releases and discharges from the
production area, land application area, and off-site management.
4-9
-------
Regulatory Citation -
Establishment of Technical Standards for Concentrated
Animal Feeding Operations
If the State has not already established technical standards
for nutrient management that are consistent with 40 CFR
412.4(c)(2), the Director shall establish such standards by
the date specified in 123.62(e). [40 CFR 123.36]
4.1.3 What is the relationship between the ELG, the State nutrient management techni-
cal standard, and the permit?
The ELG, the NPDES CAFO regulations, and the
technical standards for nutrient management are
the three sets of requirements that must be included
in NPDES permits for Large CAFOs to address all
nutrient management plan requirements under the
revised CAFO regulations. Permits for CAFOs not
covered by the ELGs (e.g., Medium CAFOs) must
also contain nutrient management requirements
developed using BPJ and the NPDES nutrient man-
agement requirements in 40 CFR 122.42(e) that are
applicable to all CAFOs (see Section 4.2).
As illustrated, the ELG land application practices, the technical
standards for nutrient management, and the NPDES regulations
minimum requirements for nutrient management plans all
contribute to the nutrient management plan requirements in
NPDES permits for Large CAFOs. The ELG land applica-
tion practices are found in 40 CFR 412.4, 412.37, and
412.47 and discussed in Section 4.1.2 of this manual.
The NPDES minimum requirements for nutrient man-
agement plans are found in 40 CFR 122.42(e) and
discussed in Section 4.2.2 of the manual. Permit writ-
ers must ensure that the permit is consistent with the
requirements contained in both sets of regulations (ELG
and NPDES regulations).
NPDES Permit Minimum Practices for NMPs
The NPDES regulations provide that the permitting authority must establish technical standards for
nutrient management that are consistent with the requirements in 40 CFR 412.4(c)(2) [See 40 CFR
123.36]. The permitting authority must include in the technical standard, at a minimum, the methodolo-
gies necessary to address the following components of a nutrient management plan:
• a field-specific assessment of the potential for nitrogen and phosphorus transport from the field to
waters of the United States
• the form, source, amount, timing, and method of application of nutrients on each field to achieve
realistic production goals, while minimizing nitrogen and phosphorus movement to waters of the
United States
appropriate flexibility for CAFOs to implement the standard (e.g., multi-year phosphorus banking
[40CFR412.4(c)(2)(ii)]).
EPA strongly encourages States, when establishing their technical standards for nutrient management, to
address water quality protection issues when determining appropriate land application practices.
In addition to these minimum components that must be addressed in the technical standards for nutrient
management, it is likely that these standards will include additional information, such as soil and manure
sampling and analysis protocols, application methods, and plan content requirements. These State tech-
nical standards provide additional specificity to key nutrient management provisions in the ELG.
4-10
-------
EPA expects that the State and Tribal technical standards for nutrient management will be developed col-
laboratively among the respective State departments of agriculture, Tribes, NRCS State conservationists,
State land grant universities, and NPDES permitting authorities. Many technical standards for nutrient
management have already been developed as part of implementing USDA's National Nutrient Manage-
ment policy. NRCS developed a national nutrient management technical practice standard (Code 590)
that serves as the basis for each State NRCS office to develop its own tailored standard. EPA expects that
in many cases these NRCS standards would form the basis for the standard established by the permitting
authority. The Director may use his or her discretion in establishing the technical standards (e.g., as law,
regulation, or policy).
4.1.4 are the for the
When developing effluent limitations for NPDES permits for CAFOs, EPA recommends that applicable
technology-based effluent limits be properly evaluated for their water quality protection benefits in the
course of deciding whether to establish water quality-based limitations. The permit writer must ensure
that the permit includes effluent limitations based on applicable technology-based requirements and
any more stringent effluent limitations necessary to meet water quality standards. A water quality-based
effluent limitation is designed to protect the quality of the receiving water by ensuring that State or Trib-
al water quality standards are met. Federal regulations [40 CFR 122.44(d)] require permit limitations to
control all pollutants that may be discharged at a level that will cause, have the reasonable potential to
cause, or contribute to an excursion above any State water quality standard.
For example, the permit writer may determine the need to establish more restrictive requirements for
the production area particularly for instances when the discharge is to 303(d) waterbodies listed for
nutrients, dissolved oxygen or bacteria, or when an analysis of frequency, duration and magnitude of the
anticipated discharge (consisting of potential overflows of manure, litter, or process wastewater) indi-
cates the reasonable potential to violate applicable water quality standards. With respect to the produc-
tion area, the imposition of a more restrictive water quality-based effluent limitation may include the
establishment of more restrictive requirements such as the imposition of a higher design standard or the
inclusion of additional management practices.
4.1.5 Do apply to the
If a CAFO develops and implements a nutrient management plan in accordance with the permit require-
ments for land application described above in Section 4.1.3 any remaining discharges of manure or
process wastewater from the land application areas resulting from precipitation are considered agricul-
tural storm water. For facilities subject to the ELG, this means that their NMP must comply with per-
mit requirements that implement the ELG, State technical standards for nutrient management, and the
requirements of 40 CFR 122.42(e). For facilities not subject to the ELG this means that their NMP must
comply with permit requirements that implement 40 CFR 122.42(e) and any additional nutrient manage-
ment requirements developed by BPJ.
EPA encourages States to address water quality protection issues in their technical standards for deter-
mining appropriate land application practices. These could include requiring incorporation of land
applied manure and wastewater, additional timing restrictions, additional mandatory setbacks or buffers,
ground water monitoring requirements, prohibiting phosphorus banking, or prohibiting any land applica-
tion of manure, litter, or process wastewater.
The development and implementation of an NMP such that runoff from a CAFO's land application areas
would be considered agricultural storm water does not affect the requirement for a CAFO to apply for an
4-11
-------
NPDES permit. The only way to ensure that non-permitted point source discharges of manure, litter or
process wastewaters from CAFOs do not occur is to require that CAFOs apply for NPDES permits that
will establish requirements that ensure that manure, litter, and process wastewater are applied only to
CAFO land application areas in accordance with site-specific nutrient management practices that ensure
appropriate agricultural utilization of the nutrients in the manure, litter, or process wastewater.
4.2 the to Be in all NPDES for
CAFOs?
The regulation requires all NPDES permits for CAFOs to include certain special conditions. These spe-
cial conditions are (1) the requirement to develop and fully implement an NMP, (2) the requirement that
the site-specific NMP address nine minimum practices defined in the regulation (see Section 4.2.2), and
(3) specific closure requirements (see Section 4.2.3.1). In addition, Large CAFOs are required to main-
tain records of off site manure transfers (see Section 4.2.3.3).
NPDES permits for CAFOs may include other special conditions as determined necessary by the per-
mitting authority (see section 4.2.3.4). The special conditions would also include some of the narrative
requirements found in the ELG for Large CAFOs.
4.2.1 Nutrient
NPDES permits for all CAFOs must include a
requirement for development and implementation of
an NMP. Permitted CAFOs must have their nutri-
ent management plans developed and implemented
by December 31, 2006. An NMP is a document that plan ™st include best ™agement practices and
J ' procedures necessary to implement applicable effluent
addresses the implementation of best management
practices, including those defined in the EPA CAFO
regulations, to minimize the contribution of nutri-
ents to waters of the United States. In the case of
Large CAFOs, the NMP must be developed consis- nutrie!j management plan developed and implemented
& . . . ' . . . .„ . upon the date of permit coverage. [40 CFR122.42(e)(1)
tent with the technical standard for nutrient manage-
fiegulafoiy Citation -
Requirements to develop and implement a nutrient
management plan. At a minimum, a nutrient management
limitations and standards. Permitted CAFOs must have their
nutrient management plans developed and implemented by
December 31,2006. CAFOs that seek to obtain coverage
under a permit after December 31, 2006 must have a
ment that has been established by the Director as
required by the ELG. All other CAFOs would develop their NMPs in accordance with permit require-
ments which may reference the same technical standard for nutrient management established by the
Director. The NMP must address the effluent limitations that are specified in the permit and, to the extent
they are applicable, each of the nine minimum practices specified in 40 CFR 122.42(e)(l)(i-ix).
The NMP must address land application of manure and wastewater on all land under the control of the
CAFO operator or owner. Operational control of land includes ownership, rental agreements, leases, and
access agreements.
The regulations do not require the NMP to be submitted as part of the permit application. The permit-
ting authority may establish within the permit what information relative to the nutrient management plan
must be submitted. The NMP must be maintained on-site and provided to the permitting authority upon
request. This requirement should be specified in the permit. The permit should require that the NMP be
revised as necessary to reflect the current practices and characteristics of the operation. CAFOs that are
new sources or become defined as CAFOs after December 31, 2006, would be required to have their
NMP developed and implemented as of the date of permit coverage.
4-12
-------
4.2.1.1 What is the role of certified specialists in developing NMPs ?
Although EPA's CAFO regulations do not require the development of the required site-specific NMP by
a certified specialist or technical service provider, permitting authorities should encourage and support
the use of these specialists. A nutrient management plan preparer certification program is one mechanism
that a State could use to determine that a plan has been prepared in accordance with the nutrient man-
agement technical standard established by the Director. States have the discretion to require their use to
prepare or approve plans. A certified specialist is a person who has a demonstrated capability to develop
NMPs in accordance with applicable USDA or State standards and is certified by USDA or a USDA-
sanctioned organization. Certified specialists include qualified persons who have received certifications
through a State or local agency, personnel from NRCS, and persons who have completed certification
programs recognized as technical service providers, or other programs recognized by States. In addition,
USDA has developed agreements with technical service providers to provide certified nutrient manage-
ment plan development services. Third-party vendor certification programs may include, but are not lim-
ited to, (1) American Society of Agronomy's certification programs, including Certified Crop Advisors
(CCA) and Certified Professional Agronomists (CPAg), Certified Professional Crop Scientists (CPCSc),
and Certified Professional Soil Scientists (CPSSc); (2) Land Grant University certification programs;
(3) National Alliance of Independent Crop Consultants (NAICC); and (4) State certification programs.
The value of using certified specialists is to ensure that NMPs are developed, reviewed, and approved
by persons who have the appropriate knowledge and expertise to ensure that plans fully and effectively
address the applicable ELG requirements, the minimum practices, the applicable State nutrient manage-
ment technical standard and are appropriately tailored to the site-specific needs and conditions of the
CAFO. Because of the multi-disciplinary nature of NMPs, it is likely that a range of expertise will be
needed to develop an effective NMP (e.g., professional engineer, crop specialist, soil specialist, nutri-
tionist). EPA recognizes that some States may require NMPs to be certified under State requirements.
4.2.1.2 Wliat technical assistance and guidance is available to prepare NMPs ?
EPA expects that permitting authorities will prepare guidance in coordination with their State agri-
cultural agency partners concerning the implementation of the established State nutrient management
technical standard that is to guide the development of the site-specific NMP required by the permit.
In addition, EPA believes that a well-prepared Comprehensive Nutrient Management Plan (CNMP)
prepared in accordance with the CNMP Technical Guidance issued by USDAs NRCS should in most
instances meet the NMP and minimum practice requirements of the permit.
CAFO owners and operators should seek technical
assistance for developing NMPs from integrators,
industry associations, and private consultants. In
addition Federal agencies, such as the NRCS, as
well as State and Tribal agricultural and conserva-
tion agency staff, Cooperative Extension Service
agents and specialists, Soil and Water Conservation
Districts, and land grant universities may be able to
provide technical assistance. A number of computer-
based tools are being developed to facilitate the
development and implementation of NMPs.
Nutrient Management Planning Tools
Many States, universities, and private sector companies
have developed nutrient management tools that can be
used (generally within a specific State) to assist livestock
and poultry producers develop site-specific nutrient
management plans. One example of such tools is:
Manure Management Planner (MMP): Developed at Purdue
University; a manure utilization planning tool to help
develop nutrient management plans. You may access MMP
at http ://www. agry.purdue.edu/mmp/.
Appendix A provides additional references and tools for the
NPDES permit writer.
4-13
-------
4.2.1.3 What are the requirements for updating NMPs ?
EPA recognizes that CAFOs are dynamic operations where changes are made on an ongoing basis to
the operational practices. The site-specific NMP needs to reflect the current operational practices of the
CAFO and for that reason will need to be modified and updated. At a minimum NPDES permits for
CAFOs should require that NMPs be reviewed and updated at the time of permit renewal. It is recom-
mended that NPDES permits for CAFOs also specify that the NMP be updated (1) when they make
a substantive change in how they manage their operations, including the location, method, timing, or
frequency of land application, and significant changes to crop rotations or yearly cropping patterns; or
(2) when a discharge occurs in violation of their NPDES permit.
4.2.1.4 What is the public availability of NMPs ?
NPDES permits for CAFOs should specify that the permittee must maintain the NMP on-site and make
the NMP available to the permitting authority on request, including during any on-site inspection of the
CAFO. CAFOs may request that certain information be declared confidential and protected from release
to the public by procedures in EPA's regulations [see 40 CFR 122.7] in nonauthorized States, or under
similar regulations that may be in place in authorized States.
The NPDES CAFO regulation also contains a requirement for the submission of an annual report to
the permitting authority. The annual report, which will be publicly available, contains key information
concerning the operation of the CAFO (See Section 4.3.2.1). It is expected that the annual report will
address many of the public information concerns associated with the implementation of the NPDES
CAFO permit program and avoid increased burden on permitting authorities to request and make avail-
able NMPs. EPA encourages States to make it possible for CAFOs to submit annual reports electroni-
cally and for the reports to be made available to the public.
4.2.2 are the minimum
The NMP at a minimum must include best management practices and procedures necessary to imple-
ment the applicable effluent limitations and standards. The NMP must also include, to the extent appli-
cable, a set of nine minimum practices [see 40 CFR 122.42(e)(l)(i-ix)]. These nine minimum practices
are as follows:
« Ensure adequate storage of manure, litter, and process wastewater, including procedures to ensure
proper operation and maintenance of the storage facilities;
• Ensure proper management of mortalities (i.e., dead animals) to ensure that they are not disposed of
in a liquid manure, storm water, or process wastewater storage or treatment system that is not specifi-
cally designed to treat animal mortalities;
* Ensure that clean water is diverted, as appropriate, from the production area;
• Prevent the direct contact of confined animals with waters of the United States;
« Ensure that chemicals and other contaminants handled on-site are not disposed of in any manure,
litter, process wastewater, or storm water storage or treatment system unless specifically designed to
treat such chemicals or contaminants;
Identify appropriate site-specific conservation practices to be implemented, including as appropriate
buffers or equivalent practices, to control runoff of pollutants to waters of the United States;
* Identify protocols for appropriate testing of manure, litter, process wastewater, and soil;
4-14
-------
• Establish protocols to land apply manure, litter, or process wastewater in accordance with site spe-
cific nutrient management practices that ensure appropriate agricultural utilization of the nutrients in
the manure, litter, or process wastewater; and
• Identify specific records that will be maintained to document the implementation and management of
the minimum elements described above
Permitting authorities should include these nine minimum practices in the NPDES permit as stand-alone
enforceable special conditions, to help ensure these requirements are ultimately met [see CWA402(a)(l)
and (2)]. The permit should state that CAFOs must fully implement these practices as soon as possible,
but no later than December 31, 2006.
Table 4-3 sets forth recommended permit conditions to achieve each of these practices. The permit
should require these recommended practices, where applicable.
Table 4-3. NPDES CAFO Permit Minimum Practices (To be implemented as soon as possible, but no
later than December 31,2006.)
ENSURE ADEQUATE STORAGE1 CAPACITY
Develop and implement specific practices and associated structures to ensure adequate storage capacity to achieve permit
limitations including:
- Maintain sufficient capacity in liquid manure, wastewater, or storm water storage structures to ensure compliance
with all permit requirements.
- Store dry manure in production buildings or in storage facilities or otherwise storing it in such a way as to prevent
polluted runoff.
- Provide adequate storage capacity to ensure compliance with the nutrient management technical standard approved
by the permitting authority.
- Ensure proper operation and maintenance of all manure, wastewater, and storm water storage facilities.
1 Storage includes but is not limited to waste ponds and lagoons and other structures such as tanks (above and below-
ground) and staking facilities (concrete pad, walls, and a roof).
ENSURE PROPER MANAGEMENT OF MORTALITIES
Handle and dispose of dead animals in a manner that prevents contamination of waters of the United Stales.
DIVERSION OF CLEAN WATER
Develop and implement management practices to divert clean water from the production area. Clean water includes
rain falling on the roofs of facilities, runoff from adjacent land, and other sources. If clean water is not diverted from
coming into contact with manure or process wastewater it must be collected in accordance with permit requirements.
PREVENTION OF DIRECT CONTACT OF ANIMALS WITH WATERS OF THE UNITED STATES
Develop and implement appropriate controls to prevent access of animals to waters of the United States hi the produc-
tion area.
CHEMICAL HANDLING
Develop and implement controls to prevent the inappropriate introduction of chemicals into the manure, wastewater.
and storm water storage and handling system. Examples include pesticides, hazardous and toxic chemicals, and petro-
leum products and by-products.
CONSERVATION PRACTICES TO CONTROL NUTRIENT Loss
For land application areas under the control of the CAFO operator develop and implement practices that are sufficient
to minimize the discharge of pollutants to waters of the United States. These practices may include, but are not limited
to residue management, conservation crop rotation, grassed waterways, strip cropping, vegetated buffers, riparian buf-
fers, setbacks, terracing, and diversions.
4-15
-------
Table 4-3. NPDES CAFO Permit Minimum Practices (To be implemented as soon as possible, but no
later than December 31,2006.) (cont.)
PROTOCOLS FOR MANURE AND SOIL TESTING
Identify and implement specific manure, wastewater and soil sample collection and analysis protocols to be used in
developing and implementing the nutrient management plan. At a minimum the protocol is to specify the collection
and analysis of manure, litter, and other process wastewaters annually for nutrient content, including nitrogen and
phosphorus. The protocol is to specify the collection and analysis of soil samples for phosphorus content at least once
every 5 years for all fields under the control of the CAFO operator where manure and wastewater may be applied. In
all cases the sampling frequency for both manure, litter and wastewater and soil is to be consistent with the technical
standard for nutrient management established by the Director.
PROTOCOLS FOR THE LAND APPLICATION OF MANURE AND PROCESS WASTEWATER
Develop and implement protocols to apply manure, litter, and process wastewater in accordance with the technical
standard for nutrient management established by the Director.
RECORD KEEPING
Maintain all records necessary to document the development and implementation of the nutrient management plan and
compliance with the minimum practices defined in the pennit. In addition, records must be maintained that document
compliance with the effluent limitations specified in the permit.
4.2.2.1 What is the relationship behveen USD A's Comprehensive Nutrient Management Plan and
the NPDES permit for CAFOs Nutrient Management Plan minimum practices?
The NPDES NMP minimum practices were developed to be consistent with the content of a CNMP as
defined by USDA in the CNMP Technical Guidance. These NMP minimum practices represent a subset
of the management practices and activities that would generally be included in a USDA-defmed CNMP.
The content of a USDA-defmed CNMP is described in the USDA CNMP Technical Guidance. Table 4-4
identifies each of the six elements of a CNMP and indicates which of the NMP minimum practices for
CAFOs would typically be addressed under that element during the development and implementation of
a CNMP.
There are some situations where the CNMP may not fully address all of the EPA NPDES minimum
practices. For example, USDA's technical guidance includes reference under the CNMP element number
1- Manure and Wastewater Handling and Storage - the need to address animal mortality; however, no
specific actions are identified and the guidance defers to State, Tribal, or local requirements. The EPA
minimum standard to ensure proper chemical handling is the only minimum standard not identified at
all in the USDA guidance. However, where appropriate, USDA's Conservation Practice Standards call
for the use of all chemicals in accordance with applicable regulatory requirements. An additional differ-
ence is that the CNMP Technical Guidance does not specifically include the prevention of direct contact
of animals with waters of the United States within the elements of a CNMP. However, the prevention
of direct contact is generally considered to be a component of the conservation planning process. The
CNMP is defined by USDA as a part of the conservation planning process focused on livestock and
poultry operations.
EPA's NPDES NMP minimum practices do not address two of the six elements of USDA's CNMP -
Feed Management and Other Utilization Options. Although these are important issues that EPA believes
should be considered in the development of a site-specific CNMP or NMP for CAFOs, they do not have
to be addressed, as a regulatory requirement, in NMPs developed as a condition of a CAFO's NPDES
permit.
4-16
-------
Table 4-4. USDA CNMP Elements/NPDES NMP Minimum Practices Comparison
USDA CNMP Elements
Manure and Wastewater Handling and Storage
Land Treatment Practices
Nutrient Management
Record Keeping
Feed Management
Other Utilization Options
NPDES NMP Minimum Practices
Adequate storage capacity
Animal mortality
Diversion of clean water
Conservation practices to control nutrient loss
Protocols for the land application of manure and wastewater
Protocols for manure and soil testing
Record keeping
Chemical handling
Prevention of direct contact of animals with waters
United States
of the
4.2.2.2 What is the basis for each minimum practice and how are they related to VSDA's Conserva-
tion Practice Standards?
For Large CAFOs, the minimum practices will be addressed in site-specific nutrient management plans
using specific practices identified in each State's nutrient management technical standard. For nutrient
management plans developed and implemented by other CAFOs, it is expected that the minimum prac-
tices may also be addressed based on the State nutrient management technical standard. In some cases
the minimum practices will be addressed in the site-specific nutrient management plan using existing
State or NRCS conservation practice standards. NRCS's standards are identified in USDA's CNMP
Technical Guidance. The practice standards are also included in each State NRCS Field Office Technical
Guidance which are available electronically at http://wwwftw.nrcs.usda.gov/nhcp_st.html. In addition
EPA has issued a document entitled National Management Measures to Control Nonpoint Source Pol-
lution from Agriculture (http://www.epa.gov/owow/nps/agmm/index.html), which includes information
on the selection and implementation of BMPs to control the contribution of pollutants to waters of the
United States. This document can provide assistance to permit writers in determining the type and effec-
tiveness of BMPs available to CAFO operators to minimize the runoff of pollutants from land applica-
tion areas. Table 4-5 identifies each of the EPA minimum practices, the technical basis for the standard,
and the NRCS conservation practices that may address the relevant activity.
4-17
-------
Table 4-5. EPA Minimum Practice/NRCS Conservation Practice Comparison
NPDES Minimum
Practices
Technical Basis
Associated NRCS Conservation Practice Stan-
dards
Ensure adequate storage
Maintaining sufficient storage capacity is critical if a
CAFO is going to be able to properly store manure,
wastewater, and storm water for those periods of time
when land application is not appropriate. The ability of
a CAFO to meet the applicable nutrient management
technical standard is dependent upon proper storage
practices. Insufficient storage capacity increases the risk
of runoff from manure piles and spills from lagoons and
oilier containment structures. It also increases the pos-
sibility that an operation will have to land apply during
periods of increased risk to surfaces water (i.e.. during
rainfall events).
Waste Storage Facility - NRCS Practice Standard
Code 313
Composting Facility - NRCS Practice
Standard Code 317
Waste Treatment Lagoon - NRCS Practice Standard
Code 359
Anaerobic Digester Ambient Temperature - NRCS
Practice Standard Code 365
Anaerobic Digester Controlled Temperature -
NRCS Practice Standard Code 366
Waste Facility Cover - NRCS Practice Standard
Code 359
Ensure proper manage-
ment of mortalities
Improper disposal of dead animals can result in con-
tamination of waters of the United States. Nutrients and
other contaminants released from decomposing animals
can be transported to waters of the United States in
runoff.
Animal Mortality- Facility - NRCS Practice Code
316
Diversion of clean
water
Clean water that comes into contact with manure and
wastewater has the potential to contaminate waters of
the United States. Water that is not diverted is to be col-
lected and properly handled and stored.
Diversion - NRCS Practice Standard Code 362
Roof Runoff Structure - NRCS Practice Standard
Code 558
Prevention of direct
contact of animals with
waters of the United
States
The installation of fences, barriers, or other control
devices in the production area to prevent animals from
entering waters of the United States reduces erosion and
prevents the direct deposition of manure into waters of
the United States.
Fence - NRCS Practice Standard Code 382
Use Exclusion - NRCS Practice Standard Code 472
Chemical handling
The improper handling, storage, or disposal of
chemicals at the CAFO can result in their inappropriate
introduction into the manure, litter, or process wastewa-
ter handling and storage system. The land application or
accidental releases of manure and wastewater can result
in contamination of waters of the United States. Proper
handling practices incorporated into the nutrient man-
agement plan demonstrate that the CAFO is taking the
necessary actions to prevent contamination and protect
water resources.
There are a number of NRCS State Offices that
have an interim NRCS practice standard entitled:
Agrichemical Handling Facility. Also, chemical
handling is addressed in the operation and mainte-
nance section of the Nutrient Management (Code
590) and Pest Management (Code 595) practices.
Conservation practices
to control nutrient loss
The implementation of conservation practices reduces
the velocity' of runoff, traps sediment, absorbs nutrients
and promotes infiltration of runoff to prevent it from
entering waters of the United States.
Conservation Crop Rotation - NRCS Practice Stan-
dard Code 328
Contour Buffer Strips - NRCS Practice Standard
Code 332
Contour Strip cropping - NRCS Practice Standard
Code 585
Strip cropping - NRCS Practice Standard Code 586
Filter Strip - NRCS Practice Standard Code 393
Grassed Waterway - NRCS Practice Standard Code
412
Riparian Forest Buffer - NRCS Practice Standard
Code 391
Ten-ace - NRCS Practice Standard Code 600
Cover Crop - NRCS Practice Standard Code 340
Irrigation Water Management - NRCS Practice
Standard Code 449
Residue Management - NRCS Practice Standard
Code 329
4-18
-------
Table 4-5. EPA Minimum Practice/NRCS Conservation Practice Comparison (cont.)
Protocols for manure
and soil testing
The development of a site-specific nutrient manage-
ment plan is a critical component of the NPDES
CAFO permit to ensure the protection of water quality.
The development of this plan is dependent on having
accurate information concerning the nutrient content of
the manure mat is to be land applied and the nutrient
content of the soil to which the manure will be applied.
Protocols are developed by each State generally in
conjunction with the land grant university.
Protocols for the land
application of manure
and wastewater
Ensures that the site-specific nutrient management plan
minimizes the movement of nutrients to waters of the
United States. For Large CAFOs. this practice must be
in compliance with the land application requirements of
the applicable technical standard for nutrient manage-
ment established by the permitting authority. Protocols
will prevent the application of manure and wastewater
at rates mat exceed the needs of the crops. They will
also minimize the risk to waters of the United States by
requiring land application consistent with the appropri-
ate agricultural utilization of manure and wastewater.
The protocols will also address die timing and method
of application aspects of minimizing nutrient trans-
port to waters of the United States. Manure, litter, and
process wastewater applied in excess of crop needs will
likely result in an increased contribution of nutrients to
waters of die United States. Increased nutrient loadings
to a waterbody has been determined to be a contributor
to water quality impairment.
Nutrient Management - NRCS Practice Standard
Code 590
Waste Utilization - NRCS Practice Standard Code
633
Record Keeping
Specific records are necessary to document whether a
CAFO is implementing practices in accordance with
its site-specific nutrient management plan. The specific
record keeping requirements are defined in die NPDES
permit.
USDA identifies that maintaining records is an
important part of die overall conservation planning
process.
4.2.3 What additional special conditions are applicable to NPDES permits for CAFOs?
Under the revised regulations, every CAFO permittee must maintain permit coverage until the CAFO
is properly closed. In addition, NPDES permits issued to Large CAFOs must include a special condi-
tion that requires the operator to collect and maintain information concerning the transfer of manure to
other persons. Permitting authorities have the discretion to add special conditions to NPDES permits
to address site-specific conditions at the CAFO to minimize the movement of nutrients to waters of the
United States.
4.2.3.1 Duty to maintain permit coverage until the CAFO is properly closed
Under the revised regulations, permit coverage must be maintained until the facility has ceased operation
or is no longer a CAFO and the permittee has demonstrated to the satisfaction of the permitting authority
that there is no remaining potential for a discharge of manure, litter, or process wastewater that was gen-
erated while the operation was a CAFO, other than agricultural stormwater from land application areas.
Once an operation is issued an NPDES permit, that permit remains in place for the entire permit term
independent of the specific number of animals confined at any one time until the permit is modified or
terminated in accordance with applicable NPDES regulations. For example, a beef operation with 1,200
cattle meets the definition of a Large CAFO and is subject to regulation. It applies for and is issued an
NPDES permit. Following issuance of the permit, 400 cows are transported off the operation, result-
ing in the operation having 800 cattle. The permit remains in place and the operation must continue to
4-19
-------
comply with its requirements. If the operation has taken the steps to permanently reduce the number of
animals confined to a number less than the regulatory threshold, and it would not meet the definition of a
Medium CAFO, it can request that the permitting authority terminate the permit.
Below are three generic scenarios of the application of this provision to permitted operations:
Scenario A A permitted CAFO notifies the permitting authority that it has ceased operation. The
operator should submit documentation to the permitting authority demonstrating that the
CAFO has been closed and that all of the manure and wastewater stored at the operation
has either been used in accordance with a site-specific nutrient management plan or has
been transferred to other persons. In this case, if the permitting authority agrees that the
facility has been properly closed, the permit would be terminated.
Scenario B A permitted operation notifies the permitting authority that it continues to operate; how-
ever, it has reduced the number of animals confined to the point where it no longer meets
the definition of a Large CAFO and has no plans to increase herd/flock size. Prior to the
expiration of the current permit term, documentation is provided to the permitting author-
ity that all the manure and wastewater generated while the operation met the definition of
a CAFO has been, or will be, used in accordance with a site-specific nutrient management
plan or transferred off-site. In addition if the operation is claiming that it also does not
meet the definition of a Medium CAFO, the permitting authority should require docu-
mentation to verify that the operation does not meet either of the two discharge criteria to
be defined as a Medium CAFO. If the permitting authority agrees that the operation is no
longer a CAFO, then no renewal of the permit would be required. It is important to note
that even if a permitted operation reduces the number of animals or corrects site condi-
tions so that it no longer meets the Large or Medium CAFO definitions during the term of
the pen-nit, the permit remains in effect for the full 5-year term unless and until it is modi-
fied or terminated.
Scenario C A designated operation has been issued a permit, but has subsequently addressed the
conditions that resulted in its being designated. In this case, at least 180 days prior to
the expiration of the permit, the operator should submit a permit application along with
sufficient documentation to the permitting authority to justify that the operation should
no longer be designated as a CAFO. Based upon a review of this information, the permit
authority would either issue a new permit or inform the CAFO that it is no longer consid-
ered a CAFO and does not need to be covered by an NPDES permit.
4.2.3.2 What information should be submitted to the permitting authority to document that an op-
eration has been properly closed?
The specific information that would need to be submitted in order to document proper closure would be
established at the discretion of the permitting authority. Given the variation in site management prac-
tices, it is unlikely that there will be a standard package of documentation that addresses whether an
operation has been properly closed or no longer meets the definition of a CAFO and has no potential for
the discharge of manure generated while it was a CAFO to waters of the United States. The key informa-
tion to be submitted by the permittee to document such change should focus on that which establishes
a permanent change to the number of animals held in confinement and the necessary changes to the
manure and wastewater storage and utilization practices. In those cases where a permitted CAFO has
ceased operation, the documentation may include records of sale for the animals confined specifying the
date at which no animals remained in confinement. In addition the land application or transfer records
4-20
-------
should document the disposition of all the manure and wastewater associated with these animals, either
in accordance with a site-specific nutrient management plan or transferred off site, for the period up to
and including the date at which the operation no longer met the definition of a CAFO. This informa-
tion could include the submission of a certification, prepared by a professional engineer licensed in the
respective State, that any liquid storage structure has been properly closed and that pollutants associated
with manure, litter, and process wastewater will not migrate from the closed structure to waters of the
United States. Permitting authorities should also be aware thatNRCS has established a Conservation
Practice Standard addressing the closure of these facilities. The standard is entitled "Closure of Waste
Impoundments" and is identified as Practice Code 360.
In cases where a permitted CAFO claims that it no longer meets the definition of a CAFO or has
addressed the factors that resulted in its being designated as a CAFO, the permitting authority should
request information that documents the permanent reduction in the number of animals confined and that
the amount of wastewater being generated and stored at the operation is consistent with this reduction.
Permitting authorities may wish to conduct an inspection of the operation to confirm that it has been
properly closed. With respect to designated operations, the CAFO should submit documentation as to
how the conditions were addressed and why the operation is no longer a significant contributor of pollut-
ants to waters of the United States. In those cases where there is a significant reduction in the number of
animals being confined the permitting authority should request records that document the proper disposi-
tion of any stored manure and wastewater based on the permitted capacity of the operation.
4.2,3.3 Manure transfer requirements for Large CAFOs
NPDES permits for Large CAFOs must include specific requirements concerning the transfer of manure,
litter, or process wastewater to other persons. The permit must require the operator to provide all recipi-
ents of manure and wastewater generated by the CAFO with the most current manure nutrient analysis.
The nutrient analysis must be consistent with the CAFO ELG [40 CFR Part 412]. The ELG for Large
CAFOs requires that manure be sampled for nitrogen and phosphorus at least annually. In addition, the
permit must require Large CAFOs to retain records of the date of the transfer, the name and address of
the recipient, and the approximate amount of manure, litter, or process wastewater transferred (tons/
gallons). These records are to be maintained for a period of 5 years from the date the manure, litter, or
process wastewater is transferred. See Appendix G for an example of a manure, litter, and wastewater
transfer record form.
4.2.3.4 Additional special conditions as determined by the permitting authority
The permitting authority has the discretion to include additional special conditions in NPDES permits
for CAFOs beyond those required by the NPDES CAFO regulations where it has determined that they
are necessary to achieve effluent limitations and standards or carry out the intent and purpose of the
Clean Water Act. For example, such additional requirements may address emergency discharge impact
abatement, extended storage periods, irrigation control, spills, discharges from drain tiles, measurement
of rainfall, protection for endangered species and migratory birds, employee training, and ground water
monitoring or the use of liners in areas where there is the potential for a discharge to ground water that
has a direct hydrologic connection to waters of the United States. In addition, States concerned with
ground water may require monitoring, liners, or other requirements based on appropriate State authority.
4-21
-------
4.3 are the Monitoring, of
for
The NPDES regulations identify record keeping, monitoring, and reporting requirements that are appli-
cable to all CAFOs [40 CFR 122.41 and 122.42(e)(2) through (4)]. The record keeping requirements
associated with the off-site transfer of manure are only applicable to Large CAFOs but could be con-
sidered in all NPDES permits for CAFOs. The CAFO ELG regulations identify specific record keeping
and monitoring requirements that are applicable only to Large CAFOs. For Medium and Small CAFOs,
additional monitoring and record keeping requirements may be established by the permitting authority
on a case-by-case basis.
4.3.1
All CAFO operators must maintain on-site a copy of the current site-specific nutrient management plan
that reflects existing operational characteristics, along with records documenting the implementation of
the best management practices and procedures identified in the nutrient management plan. CAFO opera-
tors should also maintain in their records a copy of the current NPDES permit.
The ELG requires Large CAFOs to maintain operation and maintenance records that document
(1) visual inspections, inspection findings, and preventive maintenance needed or undertaken in response
to the findings; (2) the date, rate, location, and methods used to apply manure or litter and wastewater to
land under the control of the CAFO operator; (3) the results of annual manure or litter and wastewater
sampling and analysis to determine nitrogen and phosphorus content; and (4) the results of representa-
tive soil sampling and analyses conducted at least every 5 years to determine nutrient content.
In addition the CAFO ELG specifies that Large CAFOs maintain land application records that docu-
ment the date the land application takes place, the land application method; the weather conditions at
the time the manure, litter, or wastewater is land applied; and the weather conditions 24 hours before
and following application. The total amount of nitrogen and phosphorus applied is to be recorded and
the permitting authority may require the recording of the percent solids and liquids applied during each
application. The permit is to also require that any land application records necessary to demonstrate
compliance with the State nutrient management technical standard be maintained. This would include
the basis for the phosphorus application rate being used during land application.
Large CAFOs must also maintain records of manure transferred to other persons that document the
amount of manure and/or wastewater that leaves the operation and the date, name, and address of the
recipient(s).
Permits should specify that all CAFOs be required to maintain a written record of all required docu-
mentation. In addition permits should require that the records be organized in a manner that facilitates
their review during a compliance inspection, such as the use of a dedicated logbook. Records are to be
maintained for a period of 5 years. Table 4-6 is an integrated list of the specific records required by the
NPDES and ELG CAFO regulations for Large CAFOs.
For Medium and Small CAFOs, the monitoring and record keeping requirement for the effluent limita-
tions would be established by the permitting authority on a case-by-case basis. In addition, the inclusion
of additional record keeping requirements in the permit for Large CAFOs would be at the discretion of
the permitting authority. The specific record keeping requirements for other CAFOs would be estab-
lished by the permitting authority.
4-22
-------
Appendix H includes some examples of record keeping forms that the permitting authority can provide
to the permittee. These example forms would assist the operation in meeting some of the record keeping
requirements specified in the NPDES and ELG CAFO regulations.
Table 4-6. NPDES Large CAFO Permit Record Keeping Requirements
Parameter
Units
Frequency
Nutrient Management Plan (Note: Required by the NPDES CAFO Regulation — applicable to all CAFOs)
The CAFO must maintain on-site a current site-specific NMP tliat reflects
existing operational characteristics. The operation must also maintain
on-site all necessary records to document mat the NMP is being properly
implemented with respect to manure and wastewater generation, storage
and handling, and land application. In addition records are to be maintained
dial the development and implementation of the NMP is in accordance with
the minimum practices defined in 40 CFR 122.42(e).
N/A
Maintain at all times
Soil and Manure/Wastewater Nutrient Analysis (Note: Required by the CAFO ELG - applicable to Large CAFOs)
Analysis of manure, litter, and process wastewater to determine nitrogen
and phosphorus content.1
Analysis of soil in all fields where land application activities are conducted
to determine phosphorus content.1
ppm
Pounds/ton
ppm
Conduct initial sam-
pling, then at least
annually.
Conduct initial sam-
pling, then at least
once every 5 years.
Operation and Maintenance (Note: Required by the CAFO ELG - applicable to Large CAFOs)
Visual inspection of all water lines
Documentation of depth of manure and process wastewater in all liquid
impoundments
Documentation of all corrective actions taken
Documentation of animal mortality handling practices
N/A
Feet
N/A
N/A
Daily2
Weekly
As necessary
As necessary
Design documentation for all manure, litter, and wastewater storage structures including the following information:
Volume for solids accumulation Cubic yards/gallons Once in the permit
Design treatment volume Cubic yards/gallons term unless revised
Total design storage volume3 Cubic yards/gallons
Days of storage capacity Days
Documentation of all overflows from all manure and wastewater storage structures including: (Note: Required by the NPDES
Regulation - applicable to all CAFOs)
Date and time of overflow
Estimated volume of overflow
Analysis of overflow (as required by the permitting authority)
Documentation of manure application equipment inspection
Month/day/year
Total gallons
TBD
N/A
Per event
Per event
Per event
Seasonally
Land Application (Note: Required by the CAFO ELG - applicable to Large CAFOs)
For each application event where manure, litter or process wastewater is applied, documentation of the following by field:
Date of application Month/day/year Daily
Method of application N/A Daily
Weather conditions at die dine of application and for 24 hours prior to N/A Daily
and following application
Total amount of nitrogen and phosphorus applied4 Pounds/acre Daily
Documentation of the crop and expected yield for each field
Documentation of test methods and sampling protocols used to sample and
analyze manure, litter, and wastewater and soil.
Bushel/acre
N/A
Seasonally
Once in the pennit
term unless revised
4-23
-------
Table 4-6. NPDES Large CAFO Permit Record Keeping Requirements (cont.)
Documentation of the basis for the application rates used for each field
where manure, litter, or wastewater is applied.
Documentation showing die total nitrogen and phosphorus to be applied
to each field including nutrients from the application of manure, litter, and
wastewater and other sources
N/A
Pounds/Acre
Once in die permit
term unless revised
Once in die permit
term unless revised
Manure Transfer (Note: Required by the NPDES CAFO Regulation - applicable to Large CAFOs)
For all manure transfers the CAFO must maintain the following records:
Date of transfer
Name and address of recipient
Approximate amount of manure, litter, or wastewater transferred
N/A
N/A
Tons/gallons
As necessary
As necessary
As necessary
1 Refer to the State nutrient management technical standard for the specific analyses to be used.
2 Visual inspections should lake place daily during the course of normal operations. The completion of such inspection should be documented in a
manner appropriate to Ilie operation. Some operations may wish to maintain a daily log. Other operations may choose to make a weekly entry when they
update other weekly records, that required daily inspections have been completed.
3 Total design volume includes normal precipitation less evaporation on the surface of the structure for the storage period, normal runoff from the
production area for the storage period. 25-year, 24-hour precipitation on the surface of the structure. 25-year. 24-hour runoff from the production area.
and residual solids.
4 Including quantity/volume of manure, litter, or process waslewater applied and the basis for the rate of phosphorus application.
4.3.2 Monitoring and reporting
Reporting requirements are generally linked to monitoring requirements and may include periodic reports,
emergency reports for overflow events, and special reports. When developing the monitoring and report-
ing requirements for the NPDES permit, the permit writer should address the routine operational charac-
teristics of the facility and the minimum reporting requirements at 40 CFRPart 122.41(1). The permit also
should include monitoring and reporting requirements that address nonroutine activities. For example, dis-
charges at a CAFO can occur because of an overflow during a catastrophic storm event (which can be an
allowable discharge under the terms of the permit) or a leak, breach, overflow, or other structural failure of
a storage facility due to improper operation, design, or maintenance (which would be an unauthorized dis-
charge). Unauthorized discharges may also occur due to manure releases related to the improper storage
or handling of liquid or solid manure, or improper land application. The permit must require immediate
notification of the permitting authority, specific data collection activities, and a follow-up report describ-
ing such discharges. The monitoring and reporting requirements must ensure that the permittee provides a
description; identifies the time and duration of the event, as well as the cause(s); and presents an analysis
(if required to determine compliance by the permitting authority) of the discharge. At a minimum, the
analysis should include total nitrogen, ammonia nitrogen, phosphorus, pH, temperature, Escherichia coli
or fecal coliform, 5-day biochemical oxygen demand (BOD5), and total suspended solids. The analysis is
to be performed in accordance with approved EPA methods for wastewater analysis listed in 40 CFR Part
136. The permitting authority may wish to specify additional parameters at its discretion.
4.3.2.1 Annual Report
All NPDES permits for CAFOs must include a requirement that the permittee submit an annual report
with specific information defined in the regulation [40 CFR 122.42(e)(4)]. In addition to the informa-
tion required by the NPDES regulations, State permitting authorities can require additional information
to be included with the annual report. As with NOIs, EPA will promote electronic submission of annual
reports and immediate posting on publicly available locations. Appendix I provides an example of a
NPDES CAFO permit annual report form that includes all of the information specified in the NPDES
CAFO regulation.
4-24
-------
5.0
This chapter discusses several other important considerations for NPDES permitting authorities when
developing and implementing NPDES permits for CAFOs.
5.1 Daily (TMDL)
The TMDL provisions of the Clean Water Act are intended to be the second line of defense for protect-
ing the quality of surface water resources. When technology-based controls on point sources are inad-
equate for water to meet State water quality standards, Section 303(d) of the Clean Water Act requires
States to identify those waters and to develop TMDLs. A TMDL is defined as
The maximum amount of a pollutant that a waterbody can receive without violating water quality
standards, and
« The sum of the waste load allocations for point sources and load allocations for nonpoint sources and
natural background plus a margin of safety (considers seasonal variation).
A TMDL study must be conducted for each pollutant that causes a waterbody to fail to meet State water
quality standards. More than 20,000 waters are identified nationally as being impaired and possibly
requiring a TMDL. The top impairments in 1998 were sediment, nutrients, and pathogens. AFOs and
CAFOs can be sources of all three pollutants.
A TMDL is a calculation of the greatest amount of a pollutant that a waterbody can receive without
exceeding water quality standards. A TMDL allocates the amount of the pollutant that can be contributed
by the pollutant's sources. A TMDL study identifies both point and nonpoint sources of each pollutant
that cause a water to fail to meet water quality standards. Water quality sampling, biological and habitat
monitoring, and computer modeling help the TMDL writer determine how much each pollutant source
must reduce its contribution to ensure that the water quality standard is met. Through the TMDL process,
pollutant loads are allocated to all sources. Waste load allocations for point sources are implemented
through NPDES discharge permits. Load allocations for nonpoint sources are not federally enforceable,
but can be met through voluntary approaches or State or local regulations. In some impaired watersheds,
AFOs and CAFOs may be affected by TMDLs since improved management practices may be neces-
sary to restore water quality. In the case of CAFOs, any necessary pollutant loading reductions would be
achieved through the use of NPDES permits issued in accordance with the NPDES CAFO regulations.
5.2
In the Coastal Zone Act Reauthorization Amendments of 1990 (CZARA), Congress required States with
federally approved coastal zone management programs to develop and implement coastal nonpoint pol-
lution control programs. Thirty-three States and Territories currently have federally approved Coastal
Zone Management programs. Section 6217 (g) of CZARA called for EPA, in consultation with other fed-
eral agencies, to develop guidance on "management measures" for sources of nonpoint source pollution
in coastal waters. In January 1993 EPA issued its Guidance Specifying Management Measures for Sourc-
es of Nonpoint Pollution in Coastal Wafers., which addresses five major source categories of nonpoint
pollution: urban runoff, agriculture runoff, forestry runoff, marinas and recreational boating, and hydro-
modification. Within the agriculture runoff nonpoint source category, the EPA guidance specifically
included management measures applicable to all new and existing "confined animal facilities." The
guidance identifies the facilities that constitute large and small confined animal facilities based solely on
the number of animals confined. The manner of discharge is not considered. Under the CZARA guid-
ance a large beef feedlot contains 300 head or more, a small feedlot between 50 and 299 head; a large
5-1
-------
dairy contains 70 head or more, a small dairy between 20 and 69 head; a large layer or broiler facility
contains 15,000 head or more, a small layer or broiler facility between 5,000 and 14,999 head; a large
turkey facility contains 13,750 head or more, a small turkey facility between 5,000 and 13,749 head; and
a large swine facility contains 200 head or more, a small swine facility between 100 and 199 head.
The thresholds in the CZARA guidance for identifying large and small confined animal facilities are
lower than those established in the NPDES CAFO regulations. Thus, in coastal States the CZARA
management measures potentially apply to a greater number of small facilities than the NPDES CAFO
regulations. Despite the fact that both the CZARA management measures for confined animal facilities
and the NPDES CAFO regulations address similar operations, these programs do not overlap or con-
flict with each other. EPA's CZARA guidance states that any facility with an NPDES permit for CAFOs
is exempt from CZAR A management measures; CZARA applies to nonpoint source dischargers. Any
CAFO facility, as defined by 40 CFR Part 122, that has an NPDES permit, is a point source discharger
and thus not subject to CZARA. Similarly, if an AFO subject to CZARA management measures later
becomes a CAFO (by definition or designation), that facility is no longer subject to the CZARA manage-
ment measures. This means that an AFO will never be subject to both an NPDES permit and CZARA at
the same time. EPA's CZARA guidance provides that new confined animal facilities and existing large
confined animal facilities should limit the discharge of wastewater and runoff to waters of the U.S. by
storing such wastewater and runoff during storms up to and including discharge caused by a 25-year,
24-hour storm. Storage structures should have an earthen or plastic lining, be constructed with concrete,
or be an above ground tank. All existing small facilities should design and implement systems that will
collect solids, reduce contaminant concentrations, and reduce runoff to minimize the discharge of con-
taminants in both wastewater and runoff caused by storms up to and including a 25-year, 24-hour storm.
Existing small facilities should substantially reduce pollutant loadings to ground water. Both large and
small facilities should also manage accumulated solids in an appropriate waste utilization system. In
addition to the confined animal facility management measures, the CZARA guidance includes a nutri-
ent management measure intended to be applied by States to activities associated with the application
of nutrients to agricultural lands (including the application of manure). The goal of this management
measure is to minimize edge-of-field delivery of nutrients and minimize the leaching of nutrients from
the root zone. The nutrient management measures also provide for the development, implementation,
and periodic updating of a nutrient management plan.
5.3 319
Congress amended the Clean Water Act in 1987 to establish the Section 319 Nonpoint Source Man-
agement Program because it recognized the need for greater federal leadership to help focus State and
local nonpoint source efforts. Under Section 319, States, territories, and Indian Tribes receive grants
to implement their approved management programs for controlling non-point source pollution, which
may include a wide variety of activities, including technical assistance, financial assistance, education,
training, technology transfer, demonstration projects, and monitoring to assess the success of specific
nonpoint source implementation projects. More than 40 percent of Section 319 Clean Water Act grants
have been used for activities to control and reduce agricultural nonpoint source pollution. Also, several
USDA- and State-funded programs provide cost-share, technical assistance, and economic incentives to
implement nonpoint source pollution management practices.
5.4
Although many States, water systems, and localities have established watershed and wellhead protection
programs, the 1996 Safe Drinking Water Act Amendments placed a new focus on source water quality.
5-2
-------
States have been given access to funding and required to develop Source Water Assessment Programs to
assess the areas serving as public sources of drinking water in order to identify potential threats and initi-
ate protection efforts. The Source Water Assessment Programs created by States differ because they are
tailored to each State's water resources and drinking water priorities. However, each assessment must
include four major elements: delineating (or mapping) the source water assessment area, conducting an
inventory of potential sources of contamination in the delineated area, determining the susceptibility of
the water supply to those contamination sources, and releasing the results of the determinations to the
public.
Although a number of measures are in place to protect and retain the high quality of the nation's drink-
ing water, drinking water sources are subject to a number of threats, including growing population,
chemical use, and animal wastes. Improper disposal of chemicals, animal wastes, pesticides, and human
wastes, as well as the persistence of naturally occurring minerals, can contaminate drinking water
sources. Like human wastes, animal wastes contain pathogens, such as E. coli, that can sicken hundreds
of people and kill the very young and old and people with weakened immune systems. These wastes can
enter drinking water supplies in runoff from feedlots and pastures.
In addition to these State efforts, EPA is working with a broad spectrum of stakeholders to develop a
national strategy to prevent source water contamination. When it is complete, the strategy will reflect
what EPA's water program can do to further source water contamination prevention nationwide. Depend-
ing on the results of the strategy development process, CAFOs located in source water protection areas
may need to implement additional controls to prevent source water contamination beyond those speci-
fied in the NPDES CAFO regulation.
5.5 Voluntary
EPA supports the voluntary adoption of environmental management systems (EMSs) by CAFOs;
however, the adoption of an EMS by an operation does not change any applicable NPDES permitting
requirements. On May 15, 2002, the Administrator announced EPA's Position Statement on environmen-
tal management systems. This statement outlines the policy and principles by which the Agency will
work with industry to promote the use of EMSs to improve environmental protection. EPA promotes the
widespread use of EMEs that are consistent with ISO 14001, across a range of organizations and set-
tings, with particular emphasis on adoption of EMSs to achieve improved environmental performance
and compliance, and pollution prevention through source reduction. EPA encourages organizations to
implement EMSs based on the plan-do-check-act framework, with the goal of continual improvement.
An organization's EMS should address its entire environmental footprint (everywhere it interacts with
the environment both negatively and positively), including both regulated and unregulated impacts, such
as energy and water consumption, dust, noise, and odor. EPA supports EMSs that are appropriate to the
needs and characteristics of specific sectors and facilities.
An operation could choose to implement an EMS that could include a nutrient management plan, but
would also include policies and practices designed to address other significant environmental aspects.
EPA, as part of its overall policy on EMSs, supports adoption of these systems in a variety of sec-
tors, including agriculture. EPA has worked with specific agricultural producer groups like the United
Egg Producers to develop a voluntary EMS program. USDA is also funding a major effort through the
University of Wisconsin called Partnerships for Livestock Environmental Assessment Management
Systems. This project is designed to provide information and other guidance on ways to use EMSs effec-
tively in a variety of agricultural settings. EPA serves on the Advisory Committee for this effort, along
with USDA and other federal agencies.
5-3
-------
EPA supports the use of EMS by States, as appropriate. CAFOs may want to consider implementation of
nutrient management plans as part of a broader EMS to manage the specific impacts of excess nutrients.
The CAFO's EMS would be broader than just a nutrient management plan, however, and would cover
all media and both regulated and unregulated aspects.
More information on EPA's EMS policy, along with sector-specific EMS templates and guidance is pro-
vided atwww.epa.gov/ems.
5.6 for
The 2002 Farm Bill offers several voluntary conservation programs that can be used by livestock and
poultry producers to help them comply with the revised CAFO Rule. Under the 1996 Act, a producer
who owned or operated a large confined livestock operation was not eligible for cost-share payments to
construct an animal waste management facility. The 2002 Act removed that prohibition. In addition, the
2002 Act states that 60 percent of the funds made available for cost-share and incentive payments are
to be targeted at practices related to livestock production rather than the 50 percent that was specified in
the 1996 Act. NRCS provides technical assistance to CAFO operators through conservation planning,
design, and implementation. Producers also may obtain assistance from technical service providers.
Financial assistance to implement practices and systems is available through the following:
Environmental Quality Incentives Program (EQIP) provides up to 75 percent (up to 90 percent for
beginning or limited resource farmers or ranchers) in cost-share funds to construct certain conservation
practices, such as grassed waterways, filter strips, manure management facilities, capping abandoned
wells, and other practices important to improving and maintaining the health of natural resources in the
area. EQIP funds can be used to develop CNMPs, which generally will satisfy the CAFO Rule's nutri-
ent management plan requirement. At least 60 percent of EQIP financial assistance funds are required by
statute to be used on a nationwide basis for livestock and poultry operations, both confined and grazing.
All livestock producers can receive EQIP cost-share for waste storage facilities regardless of the size
of the operation but only if they implement a CNMP. Each EQIP contract has a payment limitation of
$450,000 per individual or entity for the period from fiscal year 2002 - fiscal year 2007.
USDA's National Funding Allocation Process is used to distribute program funds to the States and Ter-
ritories. The national funding priorities for EQIP under the 2002 Farm Bill are as follows:
• Reductions of nonpoint source pollution, such as nutrients, sediment, pesticides, or excess salinity
in impaired watersheds consistent with TMDLs where available, as well as the reduction of ground
water contamination and the conservation of ground and water resources;
« Reduction of emissions, such as particulate matter, nitrogen oxides, volatile organic compounds, and
ozone precursors and depleters that contribute to air quality impairment violations of National Ambi-
ent Air Quality Standards;
Reduction in soil erosion and sedimentation from unacceptable levels on agricultural land; and
• Promotion of at-risk species habitat conservation.
Local work groups are used by NRCS at the State level to implement these national priorities. These
local work groups-convened by local conservation districts-conduct a conservation needs assessment
and, based on these assessments, develop proposals for priority areas. These proposals are submitted to
the NRCS State Conservationist, who selects those areas within the State based on the recommendations
from the State Technical Committee.
5-4
-------
The local work groups are made up of representatives from conservation district board members and key
staff; NRCS; Farm Service Agency (FSA); FSA county committees and key staffs; the Cooperative State
Research, Education, and Extension Service; and other Federal, State, and local agencies interested in
natural resource conservation. Their recommendations go to the NRCS-designated conservationist for
the local area and then to the State Conservationist, who sets priorities with the advice of the State Tech-
nical Committee. The recommendations are integrated into regional and national strategic plans. These
strategic plans provide a basis for funding decisions.
Agricultural Management Assistance Program (AMA) provides cost-share funds to assist producers in
implementing conservation systems and addressing regulatory requirements. Program funds may be
used by CAFO operators to develop and implement a CNMP. AMA funding is limited to producers in
the following 15 States: Connecticut, Delaware, Maine, Maryland, Massachusetts, Nevada, New Hamp-
shire, New Jersey, New York, Pennsylvania, Rhode Island, Utah, Vermont, West Virginia, and Wyoming.
Conservation Reserve Program (CRP) provides participants with rental payments and cost-share assis-
tance to take agricultural land out of production. Environmentally desirable land devoted to certain con-
servation practices including riparian buffers, wetland buffers, and filter strips may be enrolled in CRP
at any time under continuous sign-up. Offers are automatically accepted provided the land and producer
meet certain eligibility requirements. Offers for continuous sign-up are not subject to competitive bid-
ding. Continuous sign-up contracts are 10 to 15 years in duration.
Other Farm Bill Programs: Other conservation programs may support CAFO operators in their efforts
to implement a well-rounded conservation plan. These programs include
• Conservation Reserve Enhancement Program (CREP)
• Wetlands Reserve Program (WRP)
• Wildlife Habitat Improvement Program (WHIP).
In addition to financial assistance programs under the 2002 Farm Bill, there may be State and local cost
share programs available to support CAFO operators. Permit writers should determine whether such
programs exist within the State or region for which they are responsible.
The information presented in this section was obtained from the following USDA Web site, which sum-
marizes funding opportunities for animal feeding operations: http://www.nrcs.usda.gov/programs/afo/
2003pdf/CAFO%20Rule%20Fact%20Sheet.pdf.
5.7 USDA and EPA Livestock and Poultry Environmental Stewardship
Curriculum
The Livestock and Poultry Environmental Stewardship (LPES) curriculum is a nationally developed
and regionally piloted training program. The curriculum was developed by a national team of more than
30 experts from 15 land-grant universities, USDA's NRCS, and USDAs Agricultural Research Service
(ARS) who prepared, peer reviewed, and pilot tested the LPES curriculum with assistance from Mid-
West Plan Service (MWPS) and guidance from EPA's National Agriculture Compliance Center (Ag
Center). The LPES curriculum development effort was funded by a grant from the EPA's Ag Center with
program oversight through the USDA. The goal of the LPES program is to provide producers, industry
stakeholders, and educators with access to the latest science-based information. Instructional materials
are available for each of the 26 lessons that make up the curriculum. This material can be ordered from
the MWPS, which is an organization of extension and research agricultural engineers from 12 universi-
ties plus representatives of the USDA (http://www.mwpshq.org).
5-5
-------
5-6
------- |