5 Colo. Code Regs. § 1002-81.15
The provisions of sections 25-8-202(7), 25-8-205, 25-8-206, and 25-8-308, C.R.S. 1973, as amended provide the specific statutory authority for adoption of this regulation. The Commission also adopted, in accordance with section 24-4-103(4), C.R.S. the following Statement of Basis and Purpose.
Overview
The original Feedlot Control Regulation, 5 C.C.R. 1002-5 et. seq. was adopted by the Commission in 1974. The format of the regulation was changed in 1976 and there have been no further changes to it since then. Several recent developments have indicated the need for the Commission to modify the regulation both in terms of substance and format. Such developments include the establishment of the Basic Standards for Groundwater and the adoption of the groundwater discharge amendments to the Permit Regulations.
A strict interpretation of the previously adopted Feedlot Control Regulation would indicate that discharges of process wastewater from any operation that meets the definition of a feedlot are prohibited. That definition encompasses a wide variety of operations of all sizes. The Commission has determined that it is desirable to improve the focus of the regulation upon water quality in terms of protecting beneficial uses and insuring applicable standards are not violated, while maintaining consistency with federal regulations. Therefore the regulation presently being adopted addresses two different categories of confined animal feeding operations: concentrated animal feeding operations and other animal feeding operations.
Purpose of the Regulation
Based upon the information received into the record during this rulemaking hearing, the Commission has determined that the purposes of this control regulation are to prevent the discharge of manure or process wastewater from concentrated animal feeding operations into waters of the state and to encourage that these materials be retained and utilized beneficially on agricultural land. The Commission recognizes that livestock produce manure and process wastewater which when properly used, supply nutrients and organic matter to soils. The mere presence of livestock manure and process wastewater in a given location does not denote pollution, but may, when improperly stored, transported or disposed of, create adverse impacts upon public health and the environment. A primary concern of the Commission is to ensure that manure and process wastewater associated with confined animal feeding operations is handled in a manner which does not cause exceedances of applicable standards or harm to existing or classified uses of state waters. While the Commission has drawn a distinction between the regulatory requirements pertaining to concentrated animal feeding operations and other animal feeding operations, it intends that the latter types of operations nevertheless protect surface water, ground water and soil resources, through proper application of "best management practices" based upon existing physical conditions and constraints at the facility site.
The Commission, in adopting this regulation does not intend to address public health nuisance conditions or land use controls such as zoning requirements or policies.
Concentrated Animal Feeding Operations
The Commission has defined concentrated animal feeding operations as those facilities with a larger capacity or which are located in areas where the potential adverse impacts associated with a discharge are particularly severe. For these facilities, the adopted rule establishes specific manure and process wastewater retention and disposal requirements which focus on proper design, construction and operation as the primary means to prevent discharges of pollutants into surface and ground waters.
Concentrated animal feeding operations are confined operations that fall under one of three specific criteria. The first criterion is based on the number and type of animals confined. The second criterion is a case-by-case designation based on certain discharges to surface waters. The last criterion is based on the facility's location in a hydrologically sensitive area. In the noticed proposal, these sensitive areas were described as sensitive environmental areas. The rule adopted by the Commission renames these areas to more accurately reflect the types of potential impacts the regulation addresses (i.e., water quality and human health impacts).
The Commission finds that prevention of process wastewater and manure discharges is particularly important when such discharges may impact areas of significant groundwater recharge, waters which are currently used for drinking water purposes or which could be used for drinking water purposes in the future, and waters subject to antidegradation review. Therefore, operations located within these hydrologically sensitive areas are considered to be concentrated animal feeding operations.
Some parties have expressed concern with the inclusion of facilities in the Concentrated Animal Feeding Operation category, based on their potential impacts on reasonably likely future drinking water supplies. It is the Commission's intent, through this regulation, to protect classified as well as existing but unclassified drinking water uses from the potential impacts of animal feeding operations. In addition, the Commission intends this regulation to preserve existing drinking water supplies which are not currently used but which may be used for public consumption in the future. For that reason, the rule adopted by the Commission includes within the definition of hydrologically sensitive areas, areas where contamination from animal feeding operations could impact reasonably likely future public drinking water system withdrawals. In order to determine whether these future withdrawals are reasonably likely, the Division must take into account the background quality as well as the decreed or permitted use of the water. A definition of public drinking water systems, consistent with the definition found in the state's safe drinking water regulations, is adopted by the Commission as part of this regulation.
Animal Feeding Operations
For those confined animal feeding operations not included in the concentrated animal feeding operations category the Commission has prescribed best management practices (BMPs) which are aimed at reducing the water quality impacts from these operations. The BMPs provide guidance to the small operations for solids removal, runoff and process water reduction and groundwater protection. The goal of these requirements is the same as that for concentrated animal feeding operations-i.e., preventing discharge of pollutants to ground and surface water. However, considering the lesser likelihood of adverse impacts from these facilities, and the goal of economic reasonableness, the Commission has determined that the establishment of BMPs is the most appropriate control mechanism for these facilities at this time.
Surface and Ground Water Protection Requirements for Concentrated Animal Feeding Operations
The adopted rule preserves the general performance, design, and operation requirements for the protection of surface waters established in the feedlot regulation which it amends. Facilities are required to operate as no-discharge operations by designing and constructing structures to retain contaminated storm and wastewater within an applicable storm event. The adopted rule adds specificity to these requirements.
While the existing feedlot regulation requires no discharge to state waters, including groundwater, from confined animal feeding operations, it provides no direction regarding what is expected from a facility in order to achieve the no discharge to groundwater requirement. The amendment adopted by the Commission fills that void by specifying design and construction requirements for manure and process wastewater retention and conveyance structures. The Commission recognizes that existing facilities may find it difficult to demonstrate that retention structures which have been constructed prior to the effective date of this rule are in compliance with these specific design and construction requirements. It is not the Commission's intent in adopting this rule to cause operators to be automatically in noncompliance. For this reason, the adopted rule does not require operators to demonstrate that manure and process wastewater retention structures in existence at the time the rule becomes effective meet design and construction requirements. If, however, the Division determines that seepage at a rate greater than allowed is occurring, the operator may be required to redesign and reconstruct existing structures in order to meet the seepage rates required.
The evidence presented at the hearing indicates that process-generated wastewater from animal feeding operations may contain levels of nitrates and other pollutants equivalent to those contained in domestic wastewater treatment facilities. The Commission finds that, in order to comply with the no discharge requirement, structures which retain process-generated wastewater, whether in combination with stormwater or not, must be lined so as not to exceed a seepage rate of 1/32" per day. This approach is consistent with the approach adopted by the Commission in the groundwater amendments to the Regulations for the State Discharge Permit System, (5 CCR 1002-2, Section 6.10).
The Commission recognizes that structures which retain runoff from open animal feeding operations for a short term, which runoff is not combined with process-generated wastewater, do not pose the same potential impacts to groundwater as full-time process-generated wastewater retention structures. The runoff retained in the former type of structures comes into contact with manure or raw, intermediate, or final products of operation and is, therefore, process wastewater. However, given the dilute nature of the waste retained and the short retention time allowed (i.e., they must kept in a dewatered status as defined in subsection 4(B)), these structures are subject to a more lenient maximum seepage rate requirement The rule adopted by the Commission requires that these structures be designed, constructed, and maintained, so as not to exceed a seepage rate of 1/4" per day. The Commission also understands that these runoff retention structures often retain, in addition to runoff sources of process wastewater, raw water, such as boiler cooling water and flow-through livestock drinking water. These raw water sources are isolated from areas where manure or raw, intermediate or final products are found. Therefore, while not considered process wastewaters while diverted, they become process wastewaters when commingled with the runoff contained in the retention structures. Structures which retain commingled process wastewater runoff and these raw water sources are subject to the 1/4" per day maximum seepage rate requirement.
Beneficial Use and Disposal of Manure and Process Wastewater
Two primary means of disposal of manure and process wastewater are addressed in the adopted rule: land application and treatment and discharge. Innovative methods of disposal are encouraged and require the Division's approval. Treatment and discharge of manure and process wastewater into state waters requires a CDPS permit.
The Commission recognizes that proper land application of manure and process wastewater from animal feeding operations may be quite beneficial to agricultural land. The Commission also recognizes, however, that improper land application or land application at a rate greater than that which plants can utilize, may result in adverse impacts to the state's waters. In order to ensure that the maximum benefits of land application are obtained, without impacting the quality of ground and surface waters, the rule adopted specifies land application practices requirements and a tiered approach to maximum land application rates to be allowed.
The adopted rule specifies three alternative methods of calculation of appropriate land application rates. The first two methods contemplate the use of manure and/or process wastewater to supply plant nutrients. Accordingly, land application rates under either method is limited to the amount of nutrients which are plant available at any given time. The first method contemplates a text-book approach to rate calculation, based on a number of preestablished conditions. Because they are preestablished, these conditions are conservative and may result in application rates which are more restrictive than necessary to ensure that all nutrients are plant available at any given site. Operators who want to avoid the cost of site-specific conditions analysis may use this first method, provided that commercial fertilizers are not used in addition to manure and or process wastewater at the land application site. Operators who want to land apply at a rate that takes into account site-specific conditions may do so after performing site-specific agronomic analyses as specified under the second method provided in the adopted rule. The Commission finds that all the elements specified under the second method are necessary to derive an appropriate site-specific application rate. Operators who rely on either method need not obtain the Division's prior approval, but an operator relying on the second method must keep copies of all agronomic analyses and make them available for inspection.
The second method of calculating manure and/or process wastewater application rates requires an agronomic analysis comparable to that which is performed by farmers and ranchers in order to determine appropriate levels of nutrients which must be added to growing crops in a given growing season. This analysis requires a determination of the residual nutrient content of the soil in order to determine the amount of nutrients that can be added through land application or any other nutrient sources, including commercial fertilizers, in order to supply the necessary crop requirements. An operator who utilizes this method may also rely on commonly accepted mineralization rates, i.e., the rates at which organic nitrogen in manure and process wastewater converts to inorganic forms, such as nitrates, which are available to plants, but which pose a risk of ground water contamination.
The third land application rate calculation method provided in the adopted rule contemplates not only the supply of plant nutrients, but also the disposal of excess manure and process wastewater beyond that which is available for plant uptake. For example, other potential mechanisms for nutrient losses, such as volatilization and denitrification, may be considered. The Commission finds that the combination of plant uptake and land treatment techniques could be an adequate method to remove pollutants in the context of concentrated animal feeding operations. The Commission also finds, however, that reliance on the third method of land application rates calculation poses a significantly increased risk of adverse impacts to state waters. Therefore, an operator who wishes to land apply manure and/or process wastewater at rates allowed under the third calculation method must incur the expense of comprehensive studies and, if deemed necessary by the Division, of monitoring, to ensure that applicable water quality standards and protection levels are not exceeded. In addition, operators relying on the third rate calculation method must obtain interim and/or final approval from the Division prior to land application.
Operators who choose to exceed the rates of application allowed under the second method of calculating application rates must perform a comprehensive analyses required under Section 5(A)(5)(c). Operators who land apply manure and/or process wastewater on a "continuous or near continuous basis" must also comply with those provisions. The phrase "on a continuous or near continuous basis" is designed to include those facilities which, due to their size and intensity, land apply waste on a regular, year-round basis, rather than on a seasonal or sporadic basis utilized in more common farming operations.
Manure and Process Wastewater Management Plans
The Commission intends this regulation, including the amendment hereby adopted, to be a self-implementing control regulation which requires no permit as a condition for operation of a confined animal feeding facility, whether concentrated or not. The Commission finds, however, that planning is necessary in order to ensure that concentrated animal feeding facilities meet the regulation's requirements. Such planning is necessary whenever an improvement to an existing facility or the construction of a new facility will take place. Planning is also crucial when an existing facility is not performing in accordance with the no discharge parameters established in the regulation, and may be in need of improvement. The Commission further finds that in order to better monitor compliance with this self-implementing regulation, and in order to be more responsive to public inquiries, the Division needs to be informed of the existence and operation of concentrated animal feeding operations. Therefore, the adopted rule requires new, reactivated, reconstructed, and expanded concentrated animal feeding operations, as well as existing operations which are in significant noncompliance, to submit to the Division a Manure and Process Wastewater Management Plan.
Such plan need not be approved by the Division unless it includes the land application plan which may be required pursuant to section 5. If a land application plan is included, only the land application plan must be approved. However, the Division will review the plan submitted and may provide comments to the operator within 45 days of receipt. The Commission does not intend the Division's comments to be binding on the operator, nor does the Commission intend the Division's comments or lack thereof to be relied upon as an approval or a denial of the matters addressed in the plan. The Commission finds, however, that the Division's input early in the planning process may help to prevent noncompliance after construction has taken place.
Monitoring
The Commission, in its notice for this rulemaking hearing, specifically requested input from the public regarding the need for water quality monitoring at concentrated animal feeding operations. There was a great deal of concern expressed by the regulated community about the possible imposition of monitoring requirements on top of the mandatory management practices set forth in this regulation. Some parties expressed the view that monitoring is appropriate and should be required by the Division.
The Commission recognizes that this regulation consists, for the most part, of stringent technology-based requirements aimed at achieving no discharge of manure and process wastewater to waters; of the state. Where these are complied with, further monitoring is not required. The Commission feels, however, that there are circumstances where the potential risk to beneficial uses of state waters, as reflected, for example, by potential violations of water quality standards and numerical protection levels, posed by a concentrated animal feeding operation may warrant monitoring. Such circumstances and some of the factors which must be considered prior to requiring a facility to monitor are outlined in the adopted rule.
Because there is a potentially significant cost associated with groundwater monitoring, the Commission has decided that it should be involved in each decision to require monitoring from a concentrated animal feeding operation, except as provided in subsection 5(A)(5)(c) of the regulation. Therefore, except as provided in subsection 5(A)(5)(c), the Division will be required to bring cases to the Commission where it feels monitoring is needed. Then, upon the request of the Commission, the Division may require monitoring to be conducted by an operator.
An exception to the stringent no discharge requirements set forth in this regulation is the manure and process wastewater land application rate allowed under subsection 5(A)(5)(c). Given the potential risk of groundwater contamination associated with such practices, the Commission has determined that monitoring may be required directly by the Division when such practices are proposed by the operator.
Statutory Considerations
In adopting this amendment the Commission has considered several additional statutory provisions beyond the authorities underlying this regulation. Section 25-3-205(5) restricts the Commission from adopting control regulations which require agricultural "nonpoint source dischargers'' to utilize treatment techniques which require additional consumptive or evaporative use which would cause material injury to water rights. This section also provides that control regulations related to agricultural practices shall be promulgated only if incentive, grant and cooperative programs are determined by the Commission to be inadequate and such regulations are necessary to meet state law or the federal act. The Commission has determined, that discharges from Confined Animal Feeding Operations are point sources under federal and state law. Moreover, no grant or incentive programs are currently in place to address the water quality impacts which may be associated with confined animal feeding operations. The Commission heard testimony from the Colorado Cattle Feeders Association, to the effect that efforts are under way to develop a program which would offer technical assistance to its membership. The Commission feels that while such program, if developed may proved to be of valuable assistance to the Division in furtherance of the purposes of the amended regulation, such program alone would be inadequate to achieve the regulation's purposes. Given the limited scope of the program and the nature of the regulation and sources affected, the Commission has determined that the self-implementing regulations, as adopted, is the appropriate means to address potential impacts from confined animal feeding operations.
Section 25-8-504(2) restricts the Division from issuing a permit for animal or agricultural waste on farms and ranches except as may be required by the federal act or regulations. The Commission has chosen to regulate the discharge of process wastewater and manure through a control regulation which is "self implementing" rather than through a permit mechanism. The Commission has not made any findings with respect to the question of whether the discharges of pollutants associated with confined animal feeding operations may be subject to permitting requirements.
Section 25-8-202(8) provides that the Commission may promulgate rules more stringent than corresponding enforceable federal requirements only if based on sound scientific evidence in the record and the Commission determines that such rules are necessary to protect the public health, beneficial use of water, or the environment of the state. The Commission recognizes that certain elements of this regulation go beyond corresponding enforceable federal requirements. For example, the class of facilities which belong to the concentrated animal feeding operation category under this regulation is somewhat broader than would meet the federal criteria for determining a concentrated animal feeding operation. Evidence in the record demonstrates that significant quantities of nitrogenous wastes and oxygen demanding wastes are potentially associated with animal feeding operations which are smaller than 1,000 animal units. Unless proper measures such as best management practices are implemented, these operations may have significant impacts on the quality of ground waters. These potential impacts to the state's groundwater are not addressed by the federal regulations; therefore, there are no corresponding enforceable federal requirements with respect to ground water. The Commission has included facilities located in significant groundwater recharge areas, or where drinking water withdrawals are currently taking place, or where public drinking water system withdrawals are reasonably likely, within the definition of concentrated animal feeding operations, in order to provide such protection.
The Commission adopted requirements affecting animal feeding operations which do not meet the definition of concentrated animal feeding operations. While these requirements also go beyond corresponding enforceable federal requirements for surface water protection, the Commission was persuaded by the written and oral testimony which indicated that given the runoff associated with thunderstorms and large snowmelt events which occur in Colorado and the significant quantities of nitrogen compounds and biochemical oxygen demanding compounds which can accumulate at animal feeding operations, even small facilities should be controlled with accepted best management practices. Given the tendency of most streams in the state to exhibit extremely low flows from late summer to early spring each year, the Commission determined that the mandatory application of best management practices was necessary to protect the beneficial uses of state waters from runoff containing animal wastes. The Commission was also concerned with the need to prevent groundwater pollution, especially where existing or reasonably likely withdrawals for drinking water may occur. As indicated above, there are no corresponding enforceable federal ground water requirements.
5 CCR 1002-81.15