Environmental Protection Agency changes nutrient management requirementsWritten by Christy Hemken
Lovett said the rule changes began in 1999 with a unified strategy between the USDA and Environmental Protection Agency (EPA) on CAFOs. After a number of lawsuits the EPA issued a final rule in December 2008, of which Lovett said, “Hopefully we’ll have a little better idea of where we’re going from here on out.”
The rule most recently approved relates to a 2003 lawsuit resolved in 2006. Lovett said the “duty to apply” provision was a big part of the lawsuit. The rule said that if an operation cared for more than 1,000 head of cattle it had to apply for a discharge permit. “The ag groups challenged that, saying we couldn’t make somebody apply for the permit if they didn’t plan on discharging, and they won that part of the argument,” he said.
The definition of a confined animal feeding operation is 45 total days of confinement in a 12-month period where the vegetation doesn’t return to the area during the growing season.
“A discharge permit is a permit to pollute, and that includes your entire production area, including feed mixing, feed storage, silage pits and hay storage,” said Lovett. “The EPA sees haystacks as feed storage areas that need storm water containment because they consider it an area that adds nutrient to water.”
Although Lovett said there will be a lot of discussion around the country about the duty to apply for discharge permits, he said that is irrelevant in Wyoming because of the state’s Chapter 2 permitting rules that built in a state requirement to automatically apply for a discharge permit if an operation tops 1,000 animals.
However, he said an operation can apply for a non-discharge designation. “But that test will be so hard to meet, because for a non-discharge designation you’re talking about forever. There are no exceptions for the 25-year storm event – nothing can ever happen. It’d be easier to get a permit than to try to prove you don’t need one.”
One thing in the new rule that will really affect Wyoming’s program is the system for devising manure application rates. “The new rule has significant changes in how the nutrient management plan is looked at and how it ties to the actual permit,” explained Lovett.
He said the program change relating to nutrient management plans will affect his program on the permitting side and the Natural Resources Conservation Service (NRCS), because they’ve written 95 percent of plans in Wyoming.
“These fairly significant changes won’t affect how you’re doing things, but how the plans will be structured,” said Lovett. The plans are also now required to be public noticed and tied to the permit to make it an enforceable document.
“The other twist, because now the plan is part of the permit, is that anything you do to change the conditions in the plan means the permit has to go back through public notice,” said Lovett. “This includes a change in application area and rate, as well as stocking rates.”
The new format of the plans is what Lovett described as a narrative rate, rather than the previous linear approach. “The NRCS used to do plans using a formula. That took the soil test, manure test and the crops and balanced them. It was straight agronomy: this crop needs this many pounds of nutrients.” In the past the calculation would be run and the actual number would be included in the plan.
Now, however, the narrative rate says how to calculate the application rate, and outlines the process, but doesn’t include a specific rate for each field. “We’ll restructure the nutrient management plans so they’re more a description of the process and less a calculation of the number,” said Lovett. “The pressure on the producer will be to run those numbers every year using the process we cite in the plan, which is tied to the permit. You’ll calculate and report your application rate annually.”
The plans will include tables with all potential crops by region or county, with a number for nutrient requirements. “A producer will select a crop and a production level and it’ll dictate how many nutrients are needed to grow that,” he explained. “Producers will still test soil and manure annually, then run the formula. The effluent limit now is the application rate, and that’s what’s being tied directly to the permit.”
“It’s a significant shift in how we’ve been doing those plans, but ultimately more clear because the process is laid out,” noted Lovett. “You decide what you’re going to grow, get soil and manure tests, plug the numbers in and come up with an application rate and report that to us annually.”
Although he said he doesn’t think it will be a complicated shift, there will be some training available. “Right now the national focus from EPA is wet weather violations. You’re under the microscope to some extent, and that’s why we’ll do the training.”
He said the biggest problem with most operators is they don’t keep up the records they need. The training will explain what producers need to show the DEQ when they show up at their place. “There will be a lot more paperwork and tracking things and maintaining records for five years,” he said. “Most things we’ll require you probably already do, it’s just a matter of writing them down and keeping those records all in one place.”
The training sessions will offer all the forms in a disk format, so that people can begin to maintain their records electronically