Code of Colorado Regulations
1000 - Department of Public Health and Environment
1002 - Water Quality Control Commission (1002 Series)
5 CCR 1002-61 - REGULATION NO. 61 - COLORADO DISCHARGE PERMIT SYSTEM REGULATIONS
Section 5 CCR 1002-61.65 - STATEMENT OF BASIS, SPECIFIC STATUTORY AUTHORITY, AND PURPOSE - AUGUST 2011 RULEMAKING HEARING; EFFECTIVE SEPTEMBER 30, 2011

A. BACKGROUND

In February of 2003, the United States 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 these operations. The 2003 CAFO rule (CAFO Rule) more fully developed a framework for state implementation of National Pollutant Discharge Elimination System (NPDES) CAFO programs. The 2003 CAFO Rule included a duty for most CAFOs to apply for a discharge permit and to develop and implement a nutrient management plan (NMP). In an April 2004 rulemaking, the Commission adopted regulatory provisions that closely followed the language of the revised 2003 federal regulations.

On February 28, 2005, the United States Court of Appeals for the Second Circuit 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, and remanded portions of the CAFO Rule back to EPA for further revision and clarification.

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 rule established a July 31, 2007 deadline for compliance.

Section 25-8-504 (2), C.R.S., of the Colorado Water Quality Control Act (WQCA) and Colorado Water Quality Control Commission Regulation No. 61, section 61.3 , 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). As such, effective November 30, 2006 the Commission removed in section 61.17 , corresponding portions of the CAFO Rule vacated by the Second Circuit Court in Waterkeeper and revised certain compliance deadlines according to EPA's February 10, 2006 rule.

Because EPA did not complete a rulemaking in response to the Waterkeeper decision prior to the July 31,

2007 deadline, EPA finalized a second rule change revising all of the above compliance dates from July 31, 2007 to February 27, 2009. To this end, the Commission revised certain compliance deadlines according to EPA's July 24, 2007 rule.

In response to the Waterkeeper decision, on December 4, 2008 the EPA promulgated revisions to the federal CAFO Rule under the National Pollutant Discharge Elimination System (NPDES). The revisions became effective on December 22, 2008. Revisions were made to the permitting requirements (40 CFR 122) and to the effluent limitation guidelines (40 CFR 412). Pursuant to page 70457 of the preamble to the revised federal CAFO Rule, delegated states, such as Colorado, were required to revise applicable state CAFO permit regulations within one year of the date of promulgation of the revised rule, where no amended or enacted statute is necessary.

In 2009, the federal CAFO Rule was challenged by numerous livestock producer and environmental organizations. Multiple legal petitions were consolidated in the United States Court of Appeals for the Fifth Circuit to capture challenges from industry. The industry challenge was subsequently delayed, with oral arguments extending into 2010. Based on the history of rule promulgation, judicial annulments, rule revision, and compliance date extensions experienced during appeal of the 2003 CAFO Rule, the Commission postponed this rulemaking beyond the one year anniversary of the federal rule promulgation date in order minimize further changes.

During the stakeholder process leading up to this rulemaking, the United States Court of Appeals for the Fifth Circuit issued a ruling on March 15, 2011, in National Pork Producers Council, et al., v. EPA, vacating portions of the 2008 CAFO Rule. Specifically, the court vacated the requirement for CAFOs that "propose to discharge" to apply for a NPDES permit. Because neither the commission nor the division can be more stringent than federal requirements (25-8-504, C.R.S.) these provisions were removed from this regulatory revision. As a result, only those CAFOs that discharge are required to apply for a permit. The Court's decision upheld the requirement to include the terms of a CAFO's nutrient management plan as terms of the CAFO's NPDES permit.

In this rule revision, the Commission has adopted regulatory provisions that closely track the language of the revised federal regulations and the Fifth Circuit Court decision. Revisions are incorporated in section 61.13 and section 61.17 . Additional detail and clarifications have been added where appropriate to allow for effective implementation of the new requirements.

The final rule modifies the requirement to apply for a permit by specifying that a CAFO that discharges must apply for a NPDES permit. The rule also requires CAFOs seeking permit coverage to submit nutrient management plans (NMPs) with an application for either an individual permit or with the notice of intent to be authorized under a general permit. The Division is required to review the NMPs and provide the public with an opportunity for meaningful public review and comment. The terms of the NMPs must be incorporated as NPDES permit conditions.

Additionally, the provision that allowed CAFOs to use a 100-year, 24-hour containment structure to fulfill the no discharge requirement for new source swine, poultry, and veal calf operations has been removed. Instead, upon request by such CAFOs that are new sources, permit writers can establish best management practice (BMP) no discharge effluent limitations when the facility demonstrates that it has designed an open containment system that will comply with the no discharge requirement.

B. DISCUSSION OF AMENDED SECTION 61.13 (HCSFO REGULATIONS)

Scope and Purpose [61.13(1)]: Dates have been updated to reflect recent changes per the federal rule.

Specific Applicability [61.13(2)]: Citations updated to reflect changes in this revision.

Applications and Required Plans [61.13(3)]: The Commission revised the language in 61.13(3)(d)(i)(C) for additional clarification. The Commission removed past compliance dates from 61.13(3)(f) associated with previous rule revisions. For the purpose of having the housed commercial swine feeding operation (HCSFO) regulations (section 61.13) be at least as stringent as the federal regulations, the Commission has added specificity to the requirements associated with Swine Waste Management Plans (SWMPs). Specificity has been added to capture all of the requirements of CAFO nutrient management plans.

New language was added to this section [61.13(3)(f)(vi)] that requires each crop planted and the crop rotation for each field to be identified within the SWMP. Subsequent subsections in 61.13(3)(f) were renumbered as a result of this addition.

This rule revision specifies the procedures that HCSFOs must follow to make changes to their swine waste management plans. The terms of the SWMP must be incorporated as permit conditions. Therefore, changes to the SWMP require review by the Division and an opportunity for meaningful public review and comment. The Commission has added new language in this section [61.13(3)(f)(xix)] that details the process for submitting SWMP changes to the Division for review, the types of changes that would necessitate a permit change, and the public notification requirements associated with the review and approval process.

Requirements for Housed Commercial Swine Feeding Operations [61.13(4)]: The previous citation in 61.13(4)(b)(i) to subsection 61.14 was incorrect. The citation was corrected to read 61.13(4)(a).

The Commission has removed the provision that allowed HCSFOs to use a 100-year, 24-hour containment structure to fulfill the no discharge requirement. HCSFOs that are new sources may now meet the no discharge effluent limitations by using best management practices (BMPs) based on a rigorous site-specific technical evaluation as detailed below. Language referring to 100-year, 24-hour storm containment has been removed throughout section 61.13 and replaced with the requirement to meet the technical evaluation requirements now specified in 61.13(4)(d)(xvi)(B).

The acronym HCSFO has been added to 61.13(4)(d)(xvi) for clarification and consistency. In section 61.13 , the Commission removed past compliance dates associated with a previous rule revision.

New language that prescribes the methods for performing technical evaluations in support of best management practice effluent limitations for no discharge has been added in 61.13(4)(d)(xvi)(B). HCSFOs that are new sources can satisfy the no discharge requirement by using BMPs based on a defensible technical evaluation. The HCSFO must demonstrate that it has designed its open containment system to comply with the no discharge requirement through the use of the most recent version of United States Department of Agriculture, Natural Resource Conservation Service (NRCS) Animal Waste Management (AWM) software, or equivalent, and the most recent version of the NRCS Soil Plant Air Water (SPAW) Hydrology Tool, or an equivalent model. The Commission added language in 61.13(4)(d)(xvi)(B)(I)(1)(c) to allow facilities to use climate data from the most proximate weather stations, such as those utilized by the Colorado Climate Center or the National Oceanic and Atmospheric Administration, in the absence of site specific data for use in site-specific modeling.

The Commission added the provisions for upset/bypass conditions, as provided in 61.8(3)(i) and (j), to apply to a new source subject to 61.13(4)(d)(xvi)(B).

The Commission removed the language in 61.13(4)(d)(xvii)(B), regarding Voluntary Alternative Performance Standards for new source HCSFOs, as these standards are no longer allowable under the federal rule. Subsequent subsections in 61.13(4)(d)(xvii) were renumbered as a result of this deletion.

The Commission corrected a typographical error in 61.13(4)(g)(ii) and updated citations in 61.13(4)(j) to reflect changes created by this revision.

The previous citation in 61.13(4)(k)(viii) to subsection 61.13 , and (v) was incorrect. The Commission corrected the citation to read 61.13(4)(k)(i), (ii), and (v).

C. DISCUSSION OF AMENDED SECTION 61.17 (CAFO REGULATIONS)

Scope and Purpose [61.17(1)]: Dates have been revised to reflect recent changes per the federal rule.

Specific Applicability [61.17(2)]: On page 70427 of the preamble to the revised federal regulations, the EPA strongly recommends that CAFOs that have any doubt about their ability to operate under all circumstances without discharging seek NPDES permit coverage. The Commission has adopted the federal language that requires the owner or operator of a CAFO to seek coverage under a permit if the CAFO discharges.

As detailed on page 70423 of the preamble of the revised federal regulations, the 2008 federal CAFO rule calls for a case-by-case evaluation by the CAFO as to whether the CAFO discharges from its production area or land application area based on actual design, construction, operation and maintenance of the facility. The preamble further clarifies that discharge is not limited to continuous discharges, but also includes intermittent, sporadic, or occasional discharges which may in fact be the norm for many CAFOs. Such non-continuous discharges are still prohibited unless authorized under the terms of a permit.

Definitions [61.17(3)]: The Commission deleted a definition that is no longer applicable, and moved definitions to correct previously incorrect alpha-numeric ordering. For example, the definition of "25-Year, 24-Hour Storm" was moved to 61.17(3)(a). As a result, previous paragraphs (a) through (c) were moved to (b) through (d), respectively. The Commission moved the definition of "Freeboard" to paragraph (d), which was not previously used.

Regarding the definition of "Land Application Site" in section 61.17 , the Commission in the Statement of Basis, Specific Statutory Authority, and Purpose from the February and April 2004 Rulemaking Hearing (section 61.54), clarified that a land application site is under the control of a CAFO where it is owned or leased by the CAFO, where cropping and/or nutrient budget decisions for the site are made by the CAFO, or where the CAFO land applies process wastewater or manure to such land. The Commission amended the definition of "Land Application Site" to incorporate this clarification.

The Commission deleted the definition of "100-Year, 24-Hour Storm" from paragraph (i), as this design standard was removed from federal requirements and therefore, the definition no longer has relevance in Colorado's regulation. Previous paragraphs (j) through (l) were moved to (i) through (o), respectively. The definition of "100-Year, 24-Hour Storm" was not removed from section 61.2, as discussed above.

Permit Applications [61.17(5)]: The Commission amended the language in 61.17(5)(a)(i) and (ii), to incorporate comments received from EPA Region 8 and to remove past compliance dates. Subsequent subsections in this section were renumbered as a result of these deletions. The Commission updated citations in 61.17(5)(c)(ix)(B), (E) and (F) to reflect changes created by this revision.

The paragraph header "Permit Renewal" was added to 61.17(5)(b).

In order to more accurately follow the federal language, the Commission revised the language in 61.17(5)(c)(ix)(F) requiring that clean water be diverted from CAFO production areas, manure stockpiles, and composting areas, as appropriate.

The Commission revised the language in 61.17(5)(c)(xiv) requiring that a complete nutrient management plan be submitted to the Division for review as part of the permit application.

40 CFR 122.23(h) of the federal CAFO rule specifies the procedures for CAFOs seeking coverage under a general permit. The Commission included these procedures in 61.17(5)(d) under the header "Permit Review and Processing". Since the federal rule does not prescribe the procedures states must follow with regards to nutrient management plans, the Commission finds it appropriate to establish alternative processes and time periods for public comment and hearing requests that may differ from those specified in section 61.5 . Flexibility with NMP public notice procedures and timelines will allow the state to more efficiently and effectively inform the public using real-time technologies (i.e., Internet, social media, etc.) without impeding a CAFO's cropping decisions that may require expeditious processing of a NMP amendment.

Under the federal rule, incorporation of the terms of a particular CAFO's NMP into that CAFO's certification under a general permit is not considered a modification of the general permit itself. The Commission found it appropriate to include federal language in 61.17 (5)(d)(i) for clarification to this effect.

Effluent Limitation Requirements For Concentrated Animal Feeding Operations [61.17(6)]: The Commission revised the paragraph header for 61.17(6)(a), from "Existing Operations" to "All Existing CAFOs", for clarification and ease of reference. The requirements specified in 61.17(6)(a)(iii)(A)(I) have been categorized into subparagraphs 1) and 2) for ease of reference. The Commission removed language in 61.17(6)(a)(iii)(B) referring to past compliance dates.

The Commission revised the paragraph header for 61.17(6)(b), from "New Source Operations" to "New Source CAFOs". The Commission added "publicly owned treatment works" to 61.17(6)(b)(ii)(B) to clarify the acronym POTW. Past compliance dates were removed from 61.17(6)(b)(iii)(B).

The Commission revised the effluent limitations for new source large swine, poultry and veal calf CAFOs in 61.17(6)(b)(iv) to reflect the federal revisions. This language is very similar to the requirements for new source HCSFOS. In this section the Commission removes the provision that allowed new source large swine, poultry and veal calf CAFOs to use a 100-year, 24-hour containment structure in conjunction with best management practices (BMPs) to fulfill the no discharge requirement. New source large swine, poultry and veal calf CAFOs must now meet the no discharge effluent limitations by using BMPs based on a rigorous site-specific technical evaluation like those described for new HCSFOs. Language referring to 100-year, 24-hour storm containment has been removed throughout section 61.17 and replaced with the requirement to meet the technical evaluation requirements now specified in 61.17(6)(b)(iv) where appropriate.

New language that prescribes the methods for performing technical evaluations in support of best management practice effluent limitations for no discharge was added in 61.17(6)(b)(iv). Large swine, poultry, and veal calf CAFOS that are new sources can satisfy the no discharge requirement by using BMPs based on a defensible technical evaluation. Such a CAFO must demonstrate that it has designed its open containment system to comply with the no discharge requirement through the use of the most recent version of the NRCS Animal Waste Management (AWM) software, or equivalent, and the most recent version of the NRCS Soil Plant Air Water (SPAW) Hydrology Tool, or an equivalent model. The Commission added language in this section to allow facilities to use climate data from the most proximate weather stations, such as those utilized by the Colorado Climate Center or the National Oceanic and Atmospheric Administration, in the absence of site specific data for use in site-specific modeling.

The Commission added the provisions for upset/bypass conditions, as provided in 61.8(3)(i) & (j), to apply to a new source subject to 61.17(6)(b)(iv)(A)(III). The Commission removed redundant language 61.17(6)(b)(iv)(B) and past compliance dates were removed from 61.17(6)(b)(v).

Voluntary Alternative Performance Standards 61.17(7): The Commission removed all of the prior language in 61.17(7)(b) regarding Voluntary Alternative Performance Standards for new source large swine, poultry and veal calf CAFOs, as these standards are no longer allowable under the federal rule. Subsequent subsections 61.17 were renumbered as a result of this deletion.

Additional Requirements For Concentrated Animal Feeding Operations 61.17(8):

The Commission made revisions to the introductory language of subsection 61.17 to provide clarity and consistency with federal regulations. The Commission removed the provision in 61.17(8)(a)(i)(B)(I) that allowed new source swine, poultry or veal calf CAFOs to use a 100-year, 24-hour containment structure to fulfill the no discharge requirement. Such CAFOs that are new sources may now meet the no discharge effluent limitations by using best management practices (BMPs) based on a rigorous site-specific technical evaluation as detailed above. Language referring to 100-year, 24-hour storm containment has been removed throughout section 61.17 and replaced with the requirement to meet the technical evaluation requirements now specified in 61.17(6)(b)(iv).

In order to more closely follow the federal language, the Commission revised the language in 61.17(8)(a)(iv) requiring that clean water be diverted from CAFO production areas, manure stockpiles, and composting areas, as appropriate.

The Commission included language in subsection 61.17 regarding nutrient management plans, which are required in the revised federal rule. For clarity and ease of reference section 61.17 has been restructured to capture the new requirements. The nutrient management plan (NMP) must now be reviewed and approved by the Division prior to issuing a permit. The terms of the NMP become terms of the permit. As such, the terms of the NMP must be made available to the public for review and comment along with the rest of the permit before the permit is finalized.

The Commission is aware that the federal rule allows two possible approaches for establishing the terms of a CAFOs nutrient management plan, the "linear approach" and the "narrative rate approach". The Commission added the specific requirements associated with only the narrative rate approach to section 61.17 , as this approach is the most common and allows CAFOs the most flexibility in managing their operations while maintaining permit compliance without the need for frequent revisions. In 61.17(8)(b)(xii)(C) the Commission makes an allowance for those CAFOs that prefer to use the linear approach for establishing the terms of the NMP.

The stakeholder comment record shows that stakeholder discussion was devoted to understanding both approaches acceptable under the federal rule. The linear approach articulates the field-specific maximum rates of application in terms of the amount of nitrogen and phosphorus from manure and process wastewater allowed to be applied. Under the linear approach the terms of the NMP include maximum application rates for each year of permit coverage, for each crop, for each field. This approach is considered "linear" because it is based on only those crops included in the planned crop rotations in the NMP, the amounts of nitrogen and phosphorus from manure and process wastewater to be land applied according to the planned schedule for land application, and the projected values for plant available nitrogen and phosphorus from other sources. Under the linear approach, a single set of field-specific rates of application would be established, based on the predicted sequence of activities the CAFO plans to follow in implementing its NMP, and a CAFO would be required to follow the sequence identified in the NMP for each field-specific crop rotation and each planned step for land application of manure or process wastewater.

The narrative rate approach for establishing NMP terms prescribes how to calculate the amount of manure and process wastewater allowed to be applied on a field-specific basis. The NMP terms include the maximum amounts of nitrogen and phosphorus from all sources of nutrients, for each crop, in pounds per acre, for each field. The narrative rate approach accommodates changes in field conditions or practices at a CAFO, including those that alter the projected levels of plant available nitrogen and phosphorus in the soil or in the manure over the period of permit coverage, by allowing a CAFO to compensate for changes by adjusting the application rates accordingly without the need for a permit modification. In the second and subsequent years of the permit term, this approach provides an accurate and verifiable means of achieving production goals while minimizing transport of phosphorus and nitrogen from the fields.

The Commission believes, based on stakeholder consensus, it is reasonable to include the specific requirements for only the narrative rate approach within the revised language. For those CAFOs that choose to pursue the linear approach, the Division will review such permit applications and NMPs pursuant to the requirements specified in 40 CFR 122.42(e)(5)(i).

The Commission removed the prior language in 61.17(8)(b) and added the permit requirement to implement an NMP as of the date of permit coverage in 61.17(8)(b)(i) and (ii). Previous paragraphs (i) through (x) were moved to (iii) through (xii), respectively. The Commission added language to paragraph 61.17(8)(b)(iv) for clarification with regards to the requirements for handling animal mortalities. Paragraph 61.17(8)(b)(xii) details the required terms of the NMP. The Commission added the specific terms that must be detailed using the narrative rate approach in 61.17(8)(b)(xiii)(B)(1) through (7). Within this section the Commission included some existing language that references the use of USDA - Natural Resource Conservation Service and Colorado State University Cooperative Extension reference materials for establishing nitrogen and phosphorus application recommendations.

The Commission added the projections that must be included in the NMP, but are not terms of the NMP, to 61.17(8)(b)(xiii). The Commission added the calculations that must be performed, at least annually, as part of the NMP to 61.17(8)(b)(xiv).

The Commission found it appropriate to include language that describes changes to nutrient management plans and how such changes must be reviewed and processed as part of the permit. This language is included in 61.17(8)(b)(xv).

The CAFO owner or operator must provide the Ag Program with the most current version of the CAFO's nutrient management plan and identify changes from the previous version. If the terms of the NMP do not require revision, the CAFO may implement the revised nutrient management plan upon notification from the Division.

If the changes to the NMP necessitate revision to the terms of the NMP incorporated into the permit, the Division must determine whether such changes are substantial changes to the permit issued to the CAFO. If the Division determines that the changes are not substantial, the Division must make the revised NMP publicly available and include it in the permit record, the terms of the NMP must be revised, and the Ag Program must notify the CAFO and inform the public of any changes to the terms of the NMP that are incorporated into the permit.

If the changes to the NMP are substantial changes, the Division must notify the public and make the proposed changes and the information submitted by the CAFO available for public review and comment. Substantial changes to the NMP must be incorporated into the terms of the permit. Changes that would be considered substantial changes are detailed in 61.17(8)(b)(xv)(A)(III).

The Commission found it appropriate to move the language detailing the requirement to inspect land application equipment from 61.17(8)(b) to 61.17(8)(f) with other operation and maintenance requirements. The Commission also finds it appropriate to move the language detailing the setback requirement for land application of wastewater from 61.17(8)(b) to 61.17(8)(f).

The Commission restructured the headings in sections 61.17 for clarity and ease of reference. Citations in each section were updated to reflect changes in this revision. The Commission added annual reporting requirements associated with planted crops, actual yields, NMP calculations and soil testing to 61.17 (8)(e) to reflect new requirements in the federal rule.

The Commission found it appropriate to delete paragraphs (i), (ii), and (iv) through (vii) in 61.17(8)(f), as these are redundant to requirements stated elsewhere in the regulation. Paragraph (iii) was renumbered to (i) and paragraph (vii) was renumbered to (ii).

The language detailing the requirement to inspect land application equipment from 61.17(8)(b) has been added as 61.17(8)(f)(iii) and the language detailing the setback requirement from 61.17(8)(b) has been added as 61.17(8)(f)(iv). The Commission revised the language in 61.17(8)(f)(iv)(B) regarding an alternative setback requirement to more closely follow the federal requirement. Associated references to the revised paragraphs in 61.17(8)(f) have been updated throughout section 61.17.

PARTIES TO THE RULEMAKING HEARING