5 Colo. Code Regs. § 1002-61.59
The provisions of sections 25-8-202(1)(d) and (2) and 25-8-501 to 25-8-504, C.R.S., provide the specific statutory authority for the amendments to this regulation adopted by the Water Quality Control Commission (Commission). The Commission has also adopted, in compliance with section 24-4-103(4) C.R.S., the following statement of basis and purpose.
BASIS AND PURPOSE
The provisions in Commission Regulation No. 61, 5 CCR 1002-61 (Regulation 61) section 61.17 apply to permits for concentrated animal feeding operations (CAFOs).
In February of 2003, the U.S. Environmental Protection Agency (EPA) promulgated regulations for CAFOs which expanded the number of operations covered by the CAFO regulations and included requirements to address the land application of manure from operations. The 2003 CAFO rule (CAFO Rule) more fully developed a framework for state National Pollutant Discharge Elimination System (NPDES) CAFO programs, including a duty for most CAFOs to apply for a NPDES permit and to develop and implement a nutrient management plan (NMP).
On February 28, 2005, the Second Circuit Court of Appeals in Waterkeeper Alliance et al., v. EPA, 399 F. 3d 486 (2nd Cir. 2005) (Waterkeeper), vacated the requirement for CAFOs to apply for a NPDES permit or otherwise demonstrate no potential to discharge, as well as remanded portions of the CAFO Rule back to EPA for further revision and clarification. EPA has not yet revised the CAFO Rule in response to the Waterkeeper decision, with the exception of minor modifications to certain compliance deadlines.
On February 10, 2006, EPA finalized a rule change revising certain compliance dates to allow the EPA more time to revise the CAFO Rule to comply with the Second Circuit Court's ruling in Waterkeeper. The February 10, 2006 final rule:
Section 25-8-504(2), C.R.S., of the Colorado Water Quality Control Act (WQCA) and Commission Regulation 61.3(1)(c), prohibit the Commission and Division from imposing permit terms for animal or agricultural waste on farms and ranches which are more restrictive than those mandated by the federal Clean Water Act (CWA). The Commission's existing Regulation section 61.17 may currently be more stringent than federal law as it presently includes the following: The current CAFO general permit is based on the CAFO Rule and may contain permit terms and conditions that are more stringent than federal law. As a result, the Division is not able to issue any certifications under the general permit until the regulation and general permit are revised to reflect the current federal law. To this end, the Commission removed in section 61.17 , corresponding portions of the CAFO Rule vacated by the Second Circuit Court in Waterkeeper, including the duty for a CAFO to apply for a NPDES permit and the requirement that CAFOs demonstrate no potential to discharge. In addition, the Commission revised certain compliance deadlines according to EPA's February 10, 2006 rule that will be reflected in the Colorado Discharge Permit System general permit for CAFOs.
Scope and Purpose The Commission modified section 61.17 to make clear that section 61.17 also contains the revised compliance dates for NMPs and newly defined CAFOs as reflected in EPA's February 10, 2006 rule.
Specific Applicability The Commission added section 61.17 to clarify that any discharge from a CAFO requires a permit except those that are agricultural storm water discharges.
Duty to Apply The Commission deleted section 61.17 as the "duty to apply" for a CAFO permit was one of the portions of the CAFO Rule vacated by the Court in Waterkeeper.
Permit Application Deadlines
The permit application deadlines in this section were revised to be applicable only to CAFOs that discharge.
Sections 61.17 [now section 61.17] were revised to reflect a permit application deadline of July 31, 2007, for newly defined CAFOs.
Permit Application Requirements
The Commission deleted section 61.17 [now section 61.17] as the majority of CAFOs will be authorized under a general permit to discharge to any waters of the U.S. without associated water quality-based effluent limitations for receiving waters. For CAFOs not eligible for coverage under a general permit, the Division will work with the applicant to identify the specific receiving waters for which effluent limitations will need to be identified for inclusion in an individual permit.
No Potential to Discharge
The Commission deleted sections 61.17 and 61.17 as the "no potential to discharge" determination was one of the portions of the CAFO Rule vacated by the Waterkeeper decision.
NMP Development and Implementation Deadline
The Commission modified sections 61.17 [now section 61.17] and 61.17(6)(a)(iii)(B) to reflect a deadline of July 31, 2007, which is the revised date by which CAFOs are required to develop and implement NMPs. In addition, the Commission modified section 61.17 [now section 61.17] to reflect that the deadline for NMP development and implementation for existing source CAFOs is July 31, 2007 or upon the date of permit coverage, whichever is later, and to clarify that new source CAFOs must develop and implement a NMP upon the date of permit coverage. The specific language "or upon date of permit coverage, whichever is later" was added by the Commission to address a deadline "gap" the Commission believes existed in the February 10, 2006 rule for CAFOs that seek to obtain coverage under a permit prior to July 31, 2007, but are not certified under a permit by that date.
Administrative Revisions
The Commission modified sections 61.17 [now section 61.17] and 61.17(5)(d)(vi) [now section 61.17] to make the existing language consistent with the CAFO Rule. Regarding the request in the application for the number of animals at the CAFO, the Commission clarifies that the number provided should be the maximum number of animals that the CAFO intends to stock at any one time, which may or may not be the maximum capacity of the facility.
The Commission modified sections 61.17 [now sections 61.17] to reference the correct subsections.
The Commission modified section 61.17 [now section 61.17] to clarify that June 30, 2004 is the effective date that is referred to.
The Commission modified section 61.17 , as appropriate, where dates in the regulation have elapsed.
PARTIES/MAILING LIST TO THE RULEMAKING HEARING
5 CCR 1002-61.59