5 Colo. Code Regs. § 1002-81.23
The provisions of sections 25-8-202, 25-8-205 and 25-8-401, C.R.S., provide the specific statutory authority for adoption of the attached regulatory amendments. The Commission also adopted, in compliance with section 24-4-103(4) C.R.S., the following statement of basis and purpose.
BASIS AND PURPOSE
This hearing was held to consider changes as recommended in the triennial review informational hearing for this regulation on May 14, 2007, and in subsequent testimonies provided by stakeholders and parties to the hearing process.
As a result of this rulemaking proceeding, the Commission adopted the following amendments to this regulation.
Section 81.1 (Applicability): On February 28, 2005, the U.S. Second Circuit Court of Appeals in Waterkeeper Alliance et al., v. EPA , 399 F. 3d 486 (2nd Cir. 2005) ( Waterkeeper), vacated the requirement that a concentrated animal feeding operation (CAFO) has a "duty to apply" for a National Pollutant Discharge Elimination System (NPDES) permit. This requirement was specified in the federal CAFO rule that became effective on April 14, 2003 ("federal CAFO rule"). Therefore, the Commission revised Section 81.1 to delete the requirement that all CAFOs are subject to permitting requirements, and to add a sentence that reflects the permitting requirement as found in the current federal CAFO rule.
Section 81.2 (Purpose): As discussed below, today's adopted rule added the requirements that non-permitted CAFOs protect surface water and register with the Division. The "Purpose" section, therefore, was revised accordingly.
In addition, the four purposes were arranged to cite the ground water protection purpose first, since it applies to all CAFOs, whether permitted or not, to cite as second and third the purposes pertaining only to non-permitted CAFOs, and to list in fourth position the purpose pertaining to AFOs.
Section 81.3 (Definitions): The Commission added definitions of the following words, which are used in today's adopted regulation: best management practice, chronic storm, facility, freeboard, medium animal feeding operation, solid/liquid waste separation facility, stock watering point, stormwater, "25-year, 24-hour storm", wastewater treatment strip, and waters of the U.S. The definitions of chronic storm and "25-year, 24-hour storm" were taken from the Colorado Discharge Permit System Regulations (Regulation No. 61, 5 CCR 1002-61) in order to have consistency.
Regarding the stock watering point definition, the Commission intends for the term "hardened surface" to mean one that protects against water erosion, and includes surfaces made of gravel, concrete, cushioned padding, or stone cobbles.
The Commission revised for clarity the definitions of surface water and tank overflow. The surface water definition was revised to change "subsurface waters" to "ground water" and to make two minor edits. The tank overflow definition was revised to delete the word "cattle" and the word "process" in front of "wastewater."
The Commission deleted the definition of closed facility since this term is not used in today's adopted rule.
In the statement of basis and purpose for the 2004 revisions to this regulation, the Commission stated that: "The Commission finds it appropriate to exclude harvested dry forage from being defined as a "raw material". "The Commission now notes that in some circumstances dry forage, or hay, meets the definition of a raw material, including, e.g., when it is stored for use in a location in or immediately adjacent to an animal confinement area. In view of the complexity reflected in the discussion during this hearing regarding drawing precise lines as to when hay is or is not a raw material subject to regulation as part of an animal feeding operation, the Commission believes that it is not appropriate to attempt to further define these terms in this rulemaking. Rather, interpretation and application of the regulatory language will be left to the case-by-case judgment of those implementing the regulation, taking into account the potential for adverse water quality impacts.
Section 81.4 (Designation of an AFO as a CAFO): The Commission amended this section to change "surface water" to "waters of the U.S." so that it reflects the language in the federal CAFO rule; that is, the federal CAFO rule provides for the designation of an AFO to a CAFO to be tied to waters of the U.S. This revision also makes the language consistent with that in section 61.17(4) of Regulation No. 61.
The Commission revised the word "wastes" to read "manure and wastewater" in order to clarify the regulatory meaning and intent of the word.
Because the Waterkeeper ruling removed the "duty to apply" for a permit provision in the federal CAFO rule, the Commission revised section 81.4 to provide a designated CAFO the option to either apply for a permit or comply with the CAFO surface and ground water protection provisions of the regulation. In addition, section 81.4 was revised to require that a designated CAFO apply for a permit where it has discharged to waters of the U.S., which is required by section 61.17(2)(c) of Regulation No. 61.
New Section 81.5 (Register with Division): CAFOs are, by definition, point sources of pollution [per Section 25-8-103(14), C.R.S., of the Colorado Water Quality Control Act]. The Commission believes that CAFOs have the potential to discharge to waters of the state as a result of, for example, blizzards, sudden and intense rainfall events, or operational errors. Where a discharge is to waters of the U.S., it is subject to permit requirements (except those that are agricultural stormwater discharges as described in section 81.7), in accordance with sections 61.17 (b-c) of Regulation No. 61. However, as a result of the Waterkeeper ruling, a CAFO no longer has a duty to apply proactively for a NPDES permit. Where a CAFO elects to not apply for a permit, the Division may not have knowledge of its location and contact information. Such knowledge is important to help ensure that non-permitted CAFOs are in compliance with this regulation, including the ground water and agricultural stormwater exemption provisions, and with the permit requirement language in section 61.17(2)(b) of Regulation No. 61.
The information also is important for use by the Division to respond in a timely and effective manner to citizen complaints about a facility, including allegations of a discharge to waters of the U.S. Therefore, this regulation was revised to include a new section that requires non-permitted CAFOs to register with the Division by submitting information such as facility name, location, facility phone number, mailing address, and number of animals to be confined.
Regarding the number of animals that will be confined, the Commission intends for the number to represent the maximum number that a facility will confine in a year, and for the number to be broken down by the type of animals that will be confined (e.g., cattle, horses, dairy heifers, mature dairy cows, buffalo). It is not intended to be the cumulative or additive number of animals to be confined in a year.
New Section 81.6 (Facility Management Plan): Agreement among parties existed of the need for core documents required by the regulation (as opposed to dynamic documents, such as inspection records) to be located in one discrete place on a CAFO site for the benefit of the producer and for facilitation of inspections. As a result, the Commission created a new section that requires non-permitted CAFOs to compile a Facility Management Plan (FMP) that contains specified information under the following categories:
Similarly some CAFOs that elect to not hold a discharge permit are located where a release of wastewater could discharge into waters of the U.S. Where such a CAFO elects to not hold a permit, significant discharges to surface waters (albeit unauthorized discharges) can result from either no or a minimum of wastewater runoff controls being in place. In addition, wastewater runoff could flow unabated onto a crop field or neighboring property, which could be considered a nuisance.
Agreement among parties to the hearing existed of the desire to have non-permitted CAFOs design their production areas, and to operate their production areas and application sites, substantially consistent with the standards specified for permitted CAFOs in section 61.17 of Regulation No. 61. This results in greater water quality protection, as well as a less confusing regulatory environment and equalization of economic positions among facilities.
The Commission is aware, based on the above discussion, that such standards would affect all non-permitted CAFOs, whether or not a facility could discharge into waters of the U.S. In addition, the Commission considered the fact that where a non-permitted CAFO implements such standards and discharges to waters of the U.S., the discharge is a violation of sections 61.17 (b-c) of Regulation No. 61 (i.e., no discharge without a permit).
The Commission concluded that, in the interest of protecting surface waters, and in light of the fact that surface water protection requirements for CAFOs existed in the regulation prior to May 2004, it is appropriate to have non-permitted CAFOs proactively protect surface waters by amending this regulation to require surface water protection provisions that reflect, where reasonable, those required of permitted CAFOs. Specifics of the requirements are discussed below.
In recognition that a number of CAFOs currently do not have in place the required control structures, the Commission determined that three-years was a reasonable amount of time for the structures to be constructed. Therefore, a deadline of May 31, 2011 was placed in the regulation for production area requirements to be developed, implemented, and included in the FMP.
The adopted regulation includes language from section 61.17 of Regulation No. 61 indicating when an impoundment must be dewatered once the storage capacity is less than that required to store runoff from the designed storm event ("pumping level"). The language from section 61.17 requiring that a minimum of two feet of freeboard exist in an impoundment was not included in today's adopted rule since it is a moot requirement where it is the pumping level that must be maintained and this level is lower than two feet of freeboard.
Section 81.6 of the adopted rule includes the requirement from section 61.17 of Regulation No. 61 that depth markers be clearly marked, at minimum, in one (1) foot increments. The Commission intends that the markers show the depth of the impoundment, beginning at the top of the impoundment. In addition, Section 81.6 specifies that only impoundments that are necessary to hold the runoff from the applicable storm event must have depth markers.
The surface water protection requirements are the same as those required of permitted CAFOs, except as follows:
As in the CAFO permit regulation (section 61.17 of Regulation No. 61), the adopted regulation requires that phosphorus transport risk assessments be made using a screening tool approved by the Division that is current, readily available, peer-reviewed, and appropriate for use in Colorado. The Commission is aware that one evaluation tool, the Colorado Phosphorus Index Risk Assessment published by the United States Department of Agriculture - Natural Resources Conservation Service ("P Index"), exists for phosphorus transport risk assessments and that this tool is useful and applicable to Colorado agronomic conditions. This tool rates transport risks as "low", "medium", "high", or "very high". Therefore, today's adopted language specifies that assessments of phosphorus transport risk be made using a screening tool that results in a risk score of "low", "medium", "high", or "very high". The Commission intends that the most current P Index be the preferred assessment tool, unless the Division has approved an equivalent or better tool.
The Commission is aware that a published tool suitable for assessing nitrogen transport risk does not currently exist. Therefore, it finds that use by operators of the technical standards specified in sections 81.6 , in conjunction with the requirement that land application sites be evaluated for phosphorus runoff risk, will result in nitrogen transport to surface waters being minimized.
The Commission is aware that an evaluation of the risk of phosphorus runoff from land application sites has not previously been a requirement for CAFOs applying process wastewater or manure, and that some land application sites may have a very high risk of such runoff. Therefore, the Commission adopted language that provides for a three (3) year phased implementation of phosphorus-based nutrient management for land application sites that have a very high risk of phosphorus runoff when first evaluated after the adoption of today's rules.
Regarding soil sampling protocols, the Commission clarifies that the appropriate soil sampling depth be governed by commonly accepted nutrient budget methodologies, such as Colorado State University Cooperative Extension fertilizer recommendations or a nutrient management plan that meets United States Department of Agriculture - Natural Resources Conservation Service standards. Where a methodology indicates that a certain sampling depth is necessary and a deeper depth is preferred, sampling to the former depth meets the intent of these regulations.
The adopted regulation requires that land application equipment be inspected for leaks. The Commission intends that such inspections be made within the six-month period prior to the first application of manure or wastewater being made in any given year. In addition, such equipment shall be inspected at least once daily when applying process wastewater.
The adopted regulation requires that manure and wastewater be applied as uniformly as possible with properly calibrated equipment. Dry manure is notably difficult to apply uniformly and evenly. Testimony in the record showed that contract haulers typically apply dry manure at a rate of between 10%-20% of the target agronomic rate (e.g., 20 tons/acre) and that Colorado State University research shows that the amount of manure applied to a field as calculated from two common calibration methods is not significantly different from the amount that contract haulers stated that they applied to the same field. In addition, where manure is applied within 10%-20% of the calculated agronomic rate, the nitrogen loading of the soil will self-balance over time as the result of subsequent soil samples and agronomic rate calculations based on the nitrogen concentration in those samples. Therefore, the Commission concludes that where the amount of dry manure applied to a field with properly calibrated equipment is within 10%-20% of the calculated agronomic rate, the application is compliant with this adopted provision. In addition, the Commission recognizes as an appropriate calibration method where a contract hauler adjusts his/her application rate "on-the-go" during application to a field. The Commission emphasizes that the expectation of the regulation is that dry manure be applied at the calculated agronomic rate using an appropriate calibration method.
The Commission decided that the discharge reporting requirements are necessary because the Division does not have adequate staff to monitor, in real time, all discharges to waters of the U.S. Certain timely information is needed about a discharge prior to making the determination that a CAFO must apply for a discharge permit, in accordance with sections 61.17(2)(b-c) of Regulation No. 61.
Section 81.7 includes language allowing the Division to approve an alternative to recording weekly depths of wastewater as indicated by depth markers. For example, depths could be measured and recorded using sonar or pressure transducers. Requests from operators to use an alternative method should demonstrate why the alternative will be at least as accurate as using depth markers, how an alternative instrument will be calibrated (for example, by comparing monthly the wastewater levels shown on the depth markers with those recorded by the alternative instrument), and how records of wastewater measurements will be taken and maintained (for example, on the web).
New Section 81.8 (Ground water protection - CAFOs): This section previously existed as section 81.5 . The section title was revised to show that it applies to both permitted and non-permitted CAFOs, as opposed to the new sections 81.6 and 81.7 , which are applicable to only non-permitted CAFOs.
The previous regulation required that liner certifications be available on facility sites. Today's ruling retains this requirement and adds as section 81.8 the requirement that certifications for impoundments constructed after February 1, 2007, be submitted to the Division by specified deadlines so that the Division has assurance that these important documents pertaining to ground water protection have been generated. As a result of an operator self-certification process conducted by the Division, liner certifications for impoundments constructed prior to February 1, 2007, should have been submitted to the Division.
The Commission revised subsection 81.8 to show that a liner re-certification needs to be made by a professional engineer registered in Colorado.
The Commission modified for clarity section 81.8 to have the phrase "a new CAFO" read "a CAFO that comes into existence after December 31, 2004."
Subsection 81.8 requires an operator to certify after each manure removal event that the manure was removed in accordance with the approved SOP. Implementation of this provision revealed that some concrete-lined impoundments are cleaned of manure daily, and some are cleaned a number of times daily, such as slurry pits in some dairy freestall barns. For such impoundments, it is not reasonable to expect an operator to certify after each cleaning that manure was removed in accordance with the approved SOP. However, where a certification is not provided after each removal event, the Commission is aware that concrete liner integrity can deteriorate with time, which can result in the rate of seepage exceeding the 1 x 10 -6 cm/sec threshold. Therefore, the Commission provided the option that where the operator does not complete a certification after each manure removal event, the impoundment must be drained and cleaned every five years and evaluated for liner integrity. The Commission expects that the evaluation determine whether the concrete is free of visible defects and distress that would reasonably cause the liner to not be capable of having a maximum seepage rate of 1 x 10 -6 cm/sec. It is appropriate to have the operator use best professional judgment in making the integrity evaluation as opposed to having a professional engineer make the evaluation. The adopted regulation specifies that damaged concrete liners be repaired and that evidence of liner evaluations and repairs, such as photographs, be kept and be submitted to the Division.
The previous subsection 81.8 [which is now subsection 81.8] required a setback distance of four feet from seasonally high ground water to the liner of a new source impoundment. The intent of this setback was to ensure that hydrostatic pressure from ground water will not affect the liner integrity; that is, it provided an insurance factor that allowed for some increase in the ground water level after impoundment construction to occur without the ground water contacting the liner. The Commission believes that the four foot setback is still appropriate as an insurance factor, but finds that a liner can also be protected from hydrostatic pressure where ground water is less than four feet from the liner by installation of an engineered feature (such as a dewatering system) that prevents ground water from contacting the liner. Thus, the adopted regulation includes a new subsection 81.8 that allows for a liner to be constructed closer than four feet to ground water where the impoundment is constructed and maintained in accordance with the design by a professional engineer registered in Colorado that prevents ground water from contacting the impoundment liner. The purpose of such a design is to prevent hydrostatic pressure from affecting liner integrity.
As a result of the addition of subsection 81.8 (6(a), any new impoundment, not just one at a new source facility, can comply with the ground water setback requirements. In addition, a significantly expanded impoundment can be designed to protect the liner from shallow ground water. Thus, the Commission revised section 81.8 to pertain to new and significantly expanded impoundments, instead of to just new source impoundments. The Commission finds it reasonable to have a significantly expanded impoundment mean one that is expanded by 50 percent or more of its existing storage capacity.
To provide needed clarity, section 81.8 was revised to refer to the bottom of an impoundment liner instead of to an impoundment bottom.
The Commission is aware that it may be desirable to construct a CAFO impoundment nearby to a structure that contains surface water, such as a berm of an irrigation canal. Where such an impoundment meets the liner construction and protection requirements of this regulation, a release of pollutants from the liner to ground water is not considered a discharge to the ground water, in accordance with subsection 61.14 of Regulation No. 61. The Commission clarifies, however, that where a release of pollutants from the liner is to surface water (for example, the irrigation canal water), such a discharge is a discharge to surface water that is subject to the permitting requirements of section 61.17(2)(b) of Regulation No. 61.
The Commission retained the provision that an operator can close an impoundment using an alternative procedure and timeline approved by the Division. The Commission intends that one approvable alternative is backfilling with at least two feet of soil that is graded to reasonably prevent water ponding and provides for stormwater to drain from the impoundment through, for example, a breached berm of the impoundment.
In addition, the adopted language requires that manure and wastewater be removed from a closed pond within 60 days of closure, but flexibility is provided to have the Division approve an alternative timeline proposed by an operator that addresses site specific needs, conditions, and/or circumstances.
New Section 81.9 (Animal Feeding Operations - BMPs): This section previously existed as section 81.6 . The following revisions were adopted as a result of this rulemaking.
in this general BMP header was changed to "surface water", which is a defined term in this regulation.
An existing BMP provides for an AFO to "collect and allow wastewater to evaporate." The Commission has concerns that storage and evaporation of open-lot wastewater (which results primarily from runoff from pens as a result of precipitation) may cause material injury to state water rights. As a result, the BMP was modified to have it pertain to process-generated wastewater only. In addition, since process-generated wastewater typically has a higher concentration of pollutants than open-lot wastewater, and a Medium AFO can produce a significant volume of process-generated wastewater (such as from a dairy milking parlor), and inadequately controlled process-generated wastewater can have a significant impact on surface water quality, the Commission added a design standard that a Medium AFO have the capability of storing process-generated wastewater for 180 days, at minimum. However, where a Medium AFO anticipates eventually confining enough animals to be defined as a Large CAFO, the Commission encourages the operation to construct the impoundment to meet the capacity standard required of CAFOs.
An existing BMP provides for an AFO to "collect and evenly apply wastewater to land application sites at an agronomic rate". Since a Medium AFO can produce a significant volume of wastewater (open-lot plus process-generated wastewater), and a number of Medium AFOs operate with animal numbers that are close to the Large CAFO threshold numbers, and inadequately controlled wastewater can have a significant impact on surface water quality, the Commission established a minimum design standard that a Medium AFO have the capability of storing wastewater for 120 days, at minimum. This is a reasonable length of time during which no land application can typically occur due to conditions during winter months (e.g., cold weather). However, where a Medium AFO anticipates eventually confining enough animals to be defined as a Large CAFO, the Commission encourages the operation to construct the impoundment to meet the capacity standard required of CAFOs.
Where a BMP requires that manure or wastewater be applied at an agronomic rate, the Commission finds it appropriate that an AFO keep records showing that agronomic rate applications have occurred. Thus, sections 81.9 and 81.9(5)(e) of the regulation were revised accordingly.
The Commission has become aware that management methods other than impoundments, such as a wastewater treatment strip, are available that can appropriately satisfy the intent of decreasing wastewater discharges to surface water. In addition, impoundments typically are not appropriate for AFOs located over shallow ground water. Therefore, the Commission added flexibility to this regulation by adding a wastewater treatment strip as a BMP, and stating that other methods are appropriate where approved by the Division. These methods are appropriate for managing open-lot wastewater only, for reasons previously discussed above.
As specified in sections 81.3 and 81.4 of the regulation, where animals at an AFO have direct contact with waters of the U.S., the AFO is either defined as a Medium CAFO or is at risk of being designated as a CAFO. Because of these provisions, the Commission added to section 81.9 a BMP prohibiting animal access to surface water. However, the Commission is aware that a number of AFOs were historically located adjacent to flowing water, which served as the water source for the confined animals. This flowing water often is the sole source of water for the animals because, for example, a well permit or diversion right (which could be used to divert water from a river to a stock tank) can't be acquired in these times of heavily appropriated water. In recognition of these realities, the Commission concluded that it is reasonable to allow animals to obtain drinking water from surface water where the animals do not reasonably have access to any other source of drinking water, and that for such situations, surface water will be reasonably protected by animal access to the surface water being strictly limited via a constructed stock watering point. The Commission provided in the BMP and in the definition of a stock watering point the design and operational standards for a stock watering point.
Improperly handled animal mortalities can be a significant source of surface water contamination. In recognition of this, section 25-1-612, C.R.S., specifies that dead animals shall not be placed in surface water or other specified areas. The Commission decided to emphasize the need for AFOs to properly handle mortalities by requiring that a discharge from mortalities to surface water be prevented.
As a result of this regulatory addition, the Commission amended sections 81.9 and 81.9(6)(c)(i) to have them not pertain to Medium AFOs.
The Commission recognizes that Medium AFOs will need time to test existing liners and, where a seepage rate is in excess of 1 x 10 -6 cm/sec, time to install a compliant liner. Therefore, a deadline of May 30, 2011, was set for a Medium AFO to have at the facility the required documentation from a professional engineer for an impoundment constructed on or prior to December 31, 2008. This is the same deadline by which non-permitted CAFOs must have constructed in the production area the surface water protection structures specified in section 81.6 . For an impoundment constructed after the effective date of this rulemaking, the documentation from a professional engineer must be available prior to wastewater entering the impoundment.
Administrative Revisions
The Commission added the following phrase to the first sentence of the introductory paragraph of this regulation because the acronym C.F.R. is used in the regulation: "including references to the Code of Federal Regulations (C.F.R.)."
In sections 81.8 , 81.8 (b and d), and 81.8(7), the Commission amended references to section 81.5 to be section 81.8 , because section 81.5 was changed to be section 81.8.
The Commission modified for correctness section 81.8 to have the outline notations I, II, III, and IV read A, B, C, and D, respectively.
The Commission modified for correctness section 81.9(3)(a) to have "caterers" read "waterers."
In order to segregate two requirements, the Commission moved the phrase "avoid applications on saturated soils and lands subject to erosion" from section 81.9 and placed it in a new subsection 81.9(5)(f).
The Commission modified for clarity section 81.9 to have the phrase "edge of field, grassed strips filter fences" read "edge of field grassed strips, filter fences."
The Commission modified for correctness sections 81.9 to have the outline notation I, II, and III read A, B, and C, respectively.
The Commission modified for correctness sections 81.9 to have the outline notation I and II read A and B, respectively.
PARTIES TO THE RULEMAKING HEARING
5 CCR 1002-81.23