5 CCR 1002-81
81.0 Authority
Section 25-8-205, C.R.S. as amended of the Colorado Water Quality Control Act.
81.1 Applicability
The provisions of this control regulation are applicable to all animal feeding operations and concentrated animal feeding operations, except those defined as housed commercial swine feeding operations under section 61.2 of the Colorado Discharge Permit System Regulations, Regulation No. 61. Concentrated animal feeding operations, including housed commercial swine feeding operations, are subject to permitting requirements under Regulation No. 61.
81.2 Purpose
The purposes of this control regulation are:
(1) to ensure that discharges to ground water from concentrated animal feeding operations are controlled in a manner consistent with the performance standards as set forth in this regulation.
(2) to ensure that animal feeding operations that are not defined as concentrated animal feeding operations protect waters of the state through proper application of "best management practices" that consider existing physical conditions and constraints at the facility site. This regulation is not intended to address public health nuisance conditions or land use controls such as zoning requirements.
81.3 Definitions
(1) “AGRONOMIC RATE”
“Agronomic rate” means the rate of application of nitrogen to plants that is necessary to satisfy the plants’ nutritional requirements while accounting for applicable nitrogen credits.
(2) "ANIMAL FEEDING OPERATION"
An “animal feeding operation” (AFO) means a lot or facility (other than an aquatic animal production facility) where the following conditions are met:
(3) “CLOSED FACILITY”
“Closed Facility” means a concentrated animal feeding operation that has ceased operation and for which a permit is not in effect.
(4) “CONCENTRATED ANIMAL FEEDING OPERATIONS”
“Concentrated Animal Feeding Operation” (CAFO) means an AFO that is defined as a Large or Medium CAFO, or that is designated by the Division as a CAFO pursuant to Section 81.4. Two or more AFOs under common ownership are deemed to be a single AFO for the purposes of determining whether they qualify as a Large or Medium CAFO, if they are adjacent to each other or if they use a common area or system for land application of manure or wastewater.
(5) “CONVEYANCE STRUCTURE”
“Conveyance Structure” means a natural or constructed conduit (e.g., berm, channel, ditch, pipe, culvert) that carries process-generated wastewater from production area buildings (such as milking barns), or that captures open-lot wastewater from production areas, and diverts the wastewater to an impoundment or between impoundments.
(6) “DISCHARGE”
“Discharge” means the introduction or addition of a pollutant into waters of the state.
(7) “DIVISION”
“Division” means the Water Quality Control Division of the Department of Public Health and Environment.
(8) “GROUND WATER”
“Ground Water” means subsurface waters in a zone of saturation which are or can be brought to the surface of the ground or to surface waters through wells, springs, seeps, or other discharge areas.
(9) “GROUND WATER RECHARGE”
“Ground water Recharge” means the entry into the saturated zone of water made available at the water- table surface, together with the associated flow away from the water table within the saturated zone.
(10) “IMPOUNDMENT”
“Impoundment” means a natural topographic depression, man-made excavation, or diked area formed primarily of earthen materials (although it may be lined with man-made materials or other seepage control materials), or any other structure which is used for the storage, treatment, evaporation or discharge of pollutant-containing waters, sludge or associated sediment.
(11) “LAND APPLICATION SITE”
“Land Application Site” means land under the control of an animal feeding operation or concentrated animal feeding operation operator, whether it is owned, rented, or leased, to which manure or wastewater from the production area is or may be applied.
(12) “LARGE CONCENTRATED ANIMAL FEEDING OPERATION”
“Large Concentrated Animal Feeding Operation” (Large CAFO) means an AFO that stables or confines as many as or more than the numbers of animals specified in any of the following categories:
(13) “MAN-MADE DRAINAGE SYSTEM”
“Man-made drainage system” means a drainage ditch, flushing system, or other drainage device which was constructed by man and is used for the purpose of transporting manure or wastewater.
(14) “MANURE”
“Manure” means feces, litter, and/or urine and materials, such as bedding, sludge, compost, feed waste, dry harvested forage, and any raw material used in or resulting from the operation of an animal feeding operation, that have been commingled with feces, litter, and/or urine.
(15) “MEDIUM CONCENTRATED ANIMAL FEEDING OPERATION”
“ Medium Concentrated Animal Feeding Operation ” (Medium CAFO) means an AFO with the type and number of animals that fall within any of the ranges listed in (a) below and which has been defined or designated as a CAFO. An AFO is defined as a Medium CAFO if:
(16) “NEW SOURCE”
“New Source” means any building, structure, facility, or installation from which there is or may be a discharge of pollutants, the construction of which commenced after the promulgation of standards of performance for the particular source, pursuant to section 306 of the Clean Water Act. The term also applies where a standard of performance has been proposed, provided that the standard is promulgated within 120 days of its proposal. Except as otherwise provided in an applicable new source performance standard, a source is a “new source” if it meets this definition of “new source” , and:
(17) “OPEN-LOT WASTEWATER”
“Open-Lot Wastewater” means any precipitation that comes into contact with manure; any spillage or overflow from animal or poultry watering systems in production area facilities that are not roof-covered; and spray-cooling water used in open-sided pole sheds that are not flushed.
(18) “OPERATOR”
“Operator” means any person who owns, leases, operates, controls, or supervises an animal feeding operation or concentrated animal feeding operation.
(19) “PERMIT”
“Permit” means a permit issued pursuant to Regulation #61 of the Water Quality Control Commission and therefore includes Colorado Discharge Elimination System permits, including new permits, renewals, general permits, GPPA permits and temporary permits.
(20) “PERSON”
“Person” means an individual, corporation, partnership, association, state or political subdivision thereof, federal agency, state agency, municipality, commission, or interstate body.
(21) “POLLUTANT”
“Pollutant” means dredged spoil, dirt, slurry, solid waste, incinerator residue, sewage, sewage sludge, garbage, trash, chemical waste, biological nutrient, biological material, radioactive material, heat, wrecked or discarded equipment, rock, sand, or any industrial, municipal, or agricultural waste.
(22) “PROCESS-GENERATED WASTEWATER”
“Process-generated Wastewater” means wastewater, except tank overflow and open-lot wastewater, resulting from waters being directly or indirectly used in the operation of an animal feeding operation for any or all of the following: spillage or overflow from animal or poultry watering systems, washing, cleaning, or flushing barns, manure pits, or other roof-covered production area facilities; washing of animals; spray-cooling of animals (except in open-sided pole barns in open lots); cooling or cleaning feed mills (also known as blowdown water); or direct contact swimming by animals. Process-generated wastewater includes any wastewater, except tank overflow and open-lot wastewater, which results from water coming into contact with any raw materials, products, or byproducts, including manure, litter, feed, milk, or eggs.
(23) “PRODUCTION AREA”
“Production Area” means that part of an AFO or CAFO that includes the animal confinement area, the manure storage area, the raw materials storage area, and wastewater containment areas. The animal confinement area includes but is not limited to open lots, housed lots, feedlots, confinement houses, stall barns, free stall barns, milkrooms, milking centers, cowyards, barnyards, medication pens, walkers, animal walkways, and stables. The manure and residual solids storage area includes but is not limited to lagoons, runoff ponds, storage sheds, stockpiles, under house or pit storages, liquid impoundments and tanks, static piles, and composting piles. The raw materials storage area includes but is not limited to feed silos, silage bunkers, and bedding materials. The waste containment area includes but is not limited to settling basins, and areas within berms and diversions which separate uncontaminated storm water. Also included in the definition of production area is any egg washing or egg processing facility, and any area used in the storage, handling, treatment, or disposal of mortalities.
(24) “PUBLIC DRINKING WATER SYSTEM”
“Public Drinking Water System” means a system for the provision to the public of piped water for human consumption, if such system has at least 15 service connections or serves an average of at least 25 persons daily at least 60 days out of the year. A public drinking system includes both community and non- community systems.
(25) “SETBACK”
“Setback” means a specified distance from waters of the state, or potential conduits to waters of the state.
(26) “SMALL CONCENTRATED ANIMAL FEEDING OPERATION”
“Small Concentrated Animal Feeding Operation” (Small CAFO) means an AFO that is designated by the Division as a CAFO, and is not a Medium CAFO.
(27) “SURFACE WATER”
“Surface Water” means all waters of the state, except subsurface waters, and including ground water that may be hydrologically connected to non-subsurface water.
(28) “TANK”
“Tank” means a stationary device designed to contain an accumulation of pollutant-containing water, which is constructed primarily of non-earthen materials (e.g., wood, concrete, steel, plastic) which provide structural support.
(29) “TANK OVERFLOW”
“Tank Overflow” means livestock drinking water in constant-flow cattle watering troughs that overflows into in-trough drain pipes and is retained separately from process wastewater storage.
(30) “WASTEWATER”
“Wastewater” means process-generated wastewater and open-lot wastewater.
(31) “WATERS OF THE STATE”
“Waters of the State” means any and all surface and subsurface waters which are contained in or flow in or through this state, except waters in sewage systems, waters in treatment works of disposal systems, waters in potable water distribution systems, and all water withdrawn for use until use and treatment have been completed.
(32) “WATER QUALITY STANDARD”
“Water Quality Standard” means any standard promulgated pursuant to section 25-8-204, C.R.S.
81.4 Designation of an Animal Feeding Operation as a Concentrated Animal Feeding Operation The Division may designate any AFO as a CAFO upon performing an on-site inspection and determining that it reasonably could be a significant contributor of pollutants to surface water.
(1) The following criteria shall be considered to determine if an AFO will be designated as a CAFO:
(2) No AFO with animal numbers below those established for a Medium CAFO shall be designated as a CAFO unless:
(3) Where an AFO is at risk of being designated a CAFO, the AFO operator shall submit to the Division, within 60 days of receiving written notice by the Division of such a risk, one of the following:
(4) Where an operator does not complete and implement a work plan pursuant to section 81.4(3)(a), or does not submit a written statement pursuant to section 81.4(3)(b), the AFO may be designated a CAFO by the Division and be required to submit a complete application to be covered under a CAFO discharge permit within 90 days of receiving written notice by the Division of such a designation and permit application requirement.
81.5 Ground Water Protection Requirements - Concentrated Animal Feeding Operations (1) Tanks at concentrated animal feeding operations shall be operated and maintained so as not to discharge wastewater to ground water.
(2) Impoundment liners
(3) Removal of manure or wastewater from an impoundment shall be accomplished in a manner that does not damage the integrity of the liner. The operator shall submit to the Division for approval a Standard Operating Procedure (“SOP” ) that demonstrates how manure, including sludge, will be removed such that the liner integrity of impoundments is not damaged. The SOP also shall indicate the expected frequency with which manure will be removed from impoundments.
(4) Any depth marker in an impoundment shall be installed in a manner that maintains the integrity of the liner and maintains the required seepage rate standard.
(5) Earthen Wastewater Conveyance Structures - Earthen conveyance structures shall be maintained to minimize ponding of wastewater. In addition, such structures shall be constructed and maintained as follows for the purpose of limiting seepage of wastewater in the structures:
(6) Setbacks for Impoundments – Impoundments of new source CAFOs shall not be located:
(7) Ground Water Monitoring - Where an impoundment is not in compliance with section 81.5(2), or where the Division determines that an impoundment liner is not being properly maintained, the Division may require the operator to conduct site-specific ground water quality monitoring of, but not limited to, total nitrogen, ammonia-nitrogen, nitrate-nitrogen, and fecal coliform. In making a determination of whether ground water monitoring is required, the Division shall consider all pertinent factors, including but not limited to: whether the impoundment poses a significant potential risk to beneficial uses of ground water, whether there is suspected contamination of ground water attributable to the facility, whether early detection of ground water contamination is essential to protect valuable drinking water sources, and whether there has been a significant failure on the part of the operator to comply with Section 81.5(2), (3), (4), (6), or (7).
(8) Impoundment Closure – A closed facility shall remove manure and wastewater from all impoundments, to the fullest extent practicable, and backfill earthen impoundments with at least five (5) feet of soil within one hundred twenty (120) days of the facility being closed, unless an alternative procedure and timeline is approved by the Division.
81.6 Animal Feeding Operations - Best Management Practices
The following Best Management Practices (BMPs) shall be utilized by animal feeding operations, as appropriate based upon existing physical conditions, and site constraints. Best management practices means, for purposes of this regulation, activities, procedures, or practices necessary for the reduction of impacts from animal feeding operations on surface or ground water, as described in Section 81.6. The following practices, designed to decrease runoff volume from animal feeding operations, are BMPs within the meaning of this regulation:
(1) Operators of animal feeding operations shall divert runoff from uncontaminated areas away from animal confinement areas and manure and wastewater control facilities to the extent practicable through:
(2) Practices to decrease open lot surface area:
(3) Practices to decrease water volume:
(4) Practices to decrease wastewater discharges to watercourses:
(5) Practices to minimize manure transport to watercourses:
(6) Practices to Protect Groundwater.
81.7 Severability
The provisions of this regulation are severable, and if any provisions or the application of the provisions to any circumstances is held invalid, the application of such provision to other circumstances, and the remainder of this regulation shall not be affected thereby.
81.8 – 81.14 Reserved
81.15 Statement of Basis, Specific Statutory Authority, and Purpose (1992 Confined Animal Feeding Operation Control Regulation Revisions)
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 CCR1002-2, 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.
81.16 Statement of Basis, Specific Statutory Authority and Purpose: July, 1997 Rulemaking The provisions of sections 25-8-202 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 The Commission has adopted a revised numbering system for this regulation, as a part of an overall renumbering of all Water Quality Control Commission rules and regulations. The goals of the renumbering are: (1) to achieve a more logical organization and numbering of the regulations, with a system that provides flexibility for future modifications, and (2) to make the Commission's internal numbering system and that of the Colorado Code of Regulations (CCR) consistent. The CCR references for the regulations will also be revised as a result of this hearing.
81.17 Findings Regarding Basis for Emergency Rule Amendments Adopted On October 6, 1997 The Commission has previously included incorporation by reference provisions in both the Pretreatment Rules, Regulation #63 (5 CCR 1002-63) and the Confined Animal Feeding Operations Control Regulation, Regulation #81 (5 CCR 1002-81). As a part of its statutorily required review of regulations adopted by state agencies, staff in the Office of Legislative Legal Services brought to the Commission's attention an inconsistency between the incorporation by reference language in these two regulations and the requirements of the State Administrative Procedure Act, 24-4-103(12.5) C.R.S. To eliminate this inconsistency, the Commission is adding a statement to each rule that all material incorporated by reference may be examined at any state publications depository library. Both of these regulations are an important part of Colorado's overall water quality management system. Therefore, in order to avoid any interruption in the applicability of these regulations and to avoid the time and expense that would be required for the Committee on Legal Services to conduct a formal hearing to consider this matter, the Commission finds that adoption of these amendments is imperatively necessary to preserve public health, safety and welfare.
81.18 Statement of Basis, Specific Statutory Authority and Purpose: February, 1998 Rulemaking The provisions of sections 25-8-202 and 25-8-01, 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 The Commission held this rulemaking hearing to make permanent changes adopted in an Emergency Rulemaking Hearing that was held on October 6, 1997.
These changes add incorporation by reference language to assure compliance with the requirements of the State Administrative Procedure Act, 24-4-103(12.5) C.R.S.
81.19 Findings Regarding Basis for Emergency Rule for Amendments Adopted on March 9, 1999 The Commission adopted identical revisions to this Regulation #81 on both a permanent and emergency basis at its meeting on March 9, 1999. Amendment 14 requires the Commission to promulgate rules by March 31, 1999 to ensure the issuance and effective administration of permits by July 1, 1999. The Commission heard approximately fourteen hours of testimony at its February, 1999 meeting regarding implementation of Amendment 14, but was unable to complete deliberations in the time available. The permanent rule adopted on March 9, 1999 will become effective in the normal course of business on April 30, 1999. The provisions of that rule, however, require that housed commercial swine feeding operations submit permit applications by April 15, 1999. This date cannot practically be delayed without potentially delaying issuance of permits beyond the July 1, 1999 deadline for issuance of permits under Amendment 14. In order to provide continuous regulatory coverage so that the implementation can begin promptly, an emergency rule is necessary to cover the period until April 30, 1999. Accordingly, the Commission finds that immediate adoption of the temporary rule is imperatively necessary in order to comply with the mandates and deadlines of Amendment 14. Adoption of the permanent rule implementing Amendment 14 complied with the requirements of section 24-4-103, C.R.S. (1998). The permanent and temporary rules are substantively identical. The Commission therefore further concludes that compliance with the provisions of section 24-4-103, C.R.S. (1998) in adoption of a rule for the period March 30, 1999 to April 30, 1999 would be contrary to the public interest. The Commission designates the effective period for this emergency rule as March 30, 1999 through April 30, 1999.
81.20 Statement of Basis, Specific Statutory Authority and Purpose: March, 1999 Rulemaking The provisions of sections 25-8-202(1)(c) and (2), 25-8-205, 25-8-401, 25-8-501.1, and 25-8-504, C.R.S. provide the specific statutory authority for the amendments to this regulation adopted by the 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:
Amendment 14, approved by the Colorado voters on November 3, 1998, adds a new section 25-8-501.1 to the Colorado Water Quality Control Act. These provisions establish a new requirement that an individual discharge permit be obtained by any person who operates, constructs, or expands a “housed commercial swine feeding operation.” In this rulemaking hearing, the Commission adopted revisions to the Colorado Discharge Permit System Regulations to implement these new requirements. Regulation #61 (5 CCR 1002-61). In addition, corresponding revisions were adopted for the Confined Animal Feeding Operations Control Regulation, Regulation #81 (5 CCR 1002-81) to avoid regulatory overlap. In particular, the Commission has added a new section 81.9 to this regulation, to clarify that housed commercial swine feeding operations that obtain a permit under new section 61.13 of the discharge permit regulations are excluded from coverage under this control regulation.
81.21 Statement of Basis, Specific Statutory Authority and Purpose: August, 2002 Rulemaking The provisions of sections 25-8-202(1)(c) and (2), 25-8-205, 25-8-401, 25-8-501.1, and 25-8-504, C.R.S. provide the specific statutory authority for the amendments to this regulation adopted by the 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:
Federal regulation 40 CFR 123.26 requires states that have been designated to administer federal regulations to adopt regulations that are at least as stringent as the corresponding federal regulations. Colorado has administered the federal Concentrated Animal Feeding Operations (CAFOs) under Regulation #81 since 1974. However, certain provisions of Regulation #81 are not as stringent as the federal CAFO regulations. The existence of these provisions has resulted in confusion among CAFO operators regarding what regulatory standards should be followed. In addition, some CAFOs may be in compliance with the state regulation but not with the federal regulations, which are still fully enforceable. The Commission has determined that it is appropriate to modify the regulation by making certain provisions of the regulation equivalent to the federal CAFO regulatory requirements. Therefore, the regulation presently being adopted includes revisions to four (4) different sections. Section 81.2(2) was revised to reflect animal unit equivalency factors for animal species that are as stringent as those reflected in the federal regulations.
Sections 81.3(6) and 81.3(C)(2) were revised to reflect the federal requirement that all CAFO facilities be designed, constructed, and operated to contain all process generated wastewaters plus the runoff from a 25-year, 24-hour rainfall event for the location of the CAFO. Section 81.3(C)(5) was modified to delete Section 81.3(C)(5)(1) since it was inconsistent with this federal requirement. The effect of the revisions to Sections 81.3(6), 81.3(C)(2), and 81.3(C)(5)(1) is that the regulation now consistently indicates that CAFOs can only discharge as the result of receiving within a 24-hour period rainfall that is in excess of a 25-year, 24-hour rainfall event. In contrast, CAFOs that do not have sufficient storage capacity in their retention structures to retain all process wastewater plus the runoff resulting from any series of rainfall events occurring over a short period of time (days or weeks) (also known as chronic storm events) cannot discharge as the result of such a series of events unless covered as point sources under a discharge permit, per Section 61.3 of the Colorado Discharge Permit System regulations.
81.22 Statement of Basis, Specific Authority and Purpose: February and April, 2004 Rulemaking The provisions of sections 25-8-202 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 A. BACKGROUND Revisions to the Federal concentrated animal feeding operation regulations under the National Pollutant Discharge Elimination System (NPDES) became effective on April 14, 2003. Revisions were made to the permitting requirements (40 CFR 122) and to the effluent limitation guidelines (40 CFR 412). The revised regulation requires, among others, a mandatory duty for CAFOs to apply for an NPDES permit and to develop and implement a nutrient management plan. 40 CFR Part 412.4(c)(3) of the revised federal regulations requires state NPDES permitting programs to be revised to reflect the regulatory changes within one year of the effective date of the new regulations, where no amended or enacted statute is necessary. Part 25-8-504(2) of the Colorado Water Quality Control Act prohibits the Division from issuing permits for animal or agricultural waste on farms and ranches except as may be required by the federal act or regulations. Therefore, Colorado does not need to amend or enact a statute for the purpose of revising its CAFO permitting program and has until April 14, 2004 to revise its CAFO permitting program to reflect the new federal regulations.
As a result of the revised Federal regulations, all but a very few CAFOs will be required to be covered under a permit. Part 25-8-504(2) states that provisions of any permit for animal or agricultural waste on farms and ranches shall not be any more stringent than, and shall not contain any condition for monitoring or reporting in excess of, the minimum required by the Federal Act or regulations. The revised Federal CAFO regulations focus on protection of the nation’s surface waters and do not include provisions for protection of ground water from pollutants in manure or process wastewater. Therefore, surface water protection provisions must be included in a permit, and groundwater protection provisions cannot be included in a permit. As a result, the Commission has taken final action on revising this Regulation #81, which is a control regulation and not a permit regulation, to remove provisions pertaining to protection of surface waters and to monitoring of surface waters, and to retain provisions pertaining to protection of ground water Also in this rulemaking hearing, the Commission adopted revisions to the Colorado Discharge Permit System Regulations [Regulation #61 (5 CCR 1002-61) to include regulatory requirements for CAFOs to protect surface waters, in response to the revised Federal CAFO regulations and to the revisions made to this Regulation #81.
B. REVISION OF TITLE OF REGULATION The Commission is aware that the existing title of the regulation, “Confined Animal Feeding Operations Control Regulation” has been a source of confusion in the regulated community, primarily as a result of trying to discern the difference between a “ confined ” animal feeding operation and a “ concentrated ” animal feeding operation. The terms have often been used interchangeably, even though they do not mean the same thing. Since the regulation pertains to animal feeding operations, and a concentrated animal feeding operation must first meet the definition of an animal feeding operation before it is defined as a CAFO, the title of the regulation was revised to be the “Animal Feeding Operations Control Regulation.”
C. DISCUSSION OF AMENDED SECTIONS Sections 81.3, 81.5, and 81.7: The adopted regulations deleted the existing sections 81.3 (Surface Water Protection Requirements), 81.5 (Beneficial Use and Disposal of Manure and Process Wastewater), and 81.7 (Manure and Process Wastewater Plans) of this Regulation #81. Provisions of these sections pertain to protection of surface waters and now must be included in a permit, pursuant to the revised Federal CAFO regulations. In addition, since information in the existing Appendices A, B, C, and D of this Regulation #81 pertain to surface water protection (and to the existing section 81.3 or 81.5), the four appendices were eliminated in the adopted rule.
Applicability: The Commission finds it appropriate to clarify near the beginning of this regulation the applicability of the regulatory provisions, including the fact that housed commercial swine feeding operations are excluded, since such operations are regulated under section 61.13 of Regulation #61. This exception is currently stated in section 81.9 (“Exclusions” ). Therefore, the regulation was revised to add an “Applicability” section (81.1) and to delete the existing section 81.9. Purpose of the regulation: As discussed above, a focus of the regulation has been changed to ensure protection of ground water by CAFOs, instead of protection of both surface and ground waters. The “Purpose” section of this Regulation #81 was revised accordingly. The existing purpose of animal feeding operations using best management practices to protect waters of the state was retained. Definitions: The revised Federal CAFO regulations modified the definition of a concentrated animal feeding operation by, for example, deleting reference to animal equivalency factors and adding operations that can now be defined as CAFOs (for example, veal calf operations). Instead of using equivalency factors, the revised Federal regulation specifies threshold numbers of animal species that define a CAFO. It also defines Large, Medium, and Small CAFOs. In addition, the existing definition for “animal feeding operation” is not consistent with the federal definition. Since today’s adopted rule retains provisions pertaining to AFOs and CAFOs, the Commission revised the existing definitions to include new Federal definitions of “animal feeding operation” and of “concentrated animal feeding operation.” Regarding the definition of an AFO, the Commission clarifies that wildlife and other non-traditional livestock animals, such as elk and llamas, are considered “animals” within the definition. The Commission added the following definitions that pertain to ground water protection requirements: closed facility, conveyance structure, discharge, ground water, ground water recharge, impoundment, new source, open-lot wastewater, permit, process-generated wastewater, production area, raw material, setback, tank, tank overflow, wastewater, and water quality standard. The Commission intends that a conveyance structure be interpreted as runoff diversion structures, and does not include natural sheet flow within a production area.
The definition of ground water was taken from Colorado’s Basic Standards for Ground Water regulation [Regulation No. 41 (5 CCR 1002-41)]. The definitions of discharge, impoundment, new source, permit, tank, and water quality standard were taken from Regulation #61. The definition of ground water recharge was taken from page 211 of “Groundwater” by R. Allan Freeze and John A. Cherry, Prentice-Hall, Inc. 1979.
The production area, as defined, includes the raw materials storage area, which includes but is not limited to feed silos, silage bunkers, and bedding materials. The Commission finds it appropriate to clarify that the raw materials storage area does not include locations where harvested dry forage (such as hay bale stacks) is stored outside of the production area or in hay fields. The Commission finds it appropriate to clarify the definition of “new source” by adding the following new source criteria language from 40 CFR 122.29(b)(1) and (2): “Except as otherwise provided in an applicable new source performance standard, a source is a “new source” if it meets [this] definition of “new source” , and: 1) it is constructed at a site at which no other source is located; or 2) it totally replaces the process or production equipment that causes the discharge of pollutants at an existing source; or 3) its processes are substantially independent of an existing source at the same site. In determining whether these processes are substantially independent, the [Division] shall consider such factors as the extent to which the new facility is integrated with the existing plant, and the extent to which the new facility is engaged in the same general type of activity as the existing source. A source meeting the requirements of the [1), 2), or 3) above] is a new source only if a new source performance standard is independently applicable to it. If there is no such independently applicable standard, the source is a new discharger.” Regarding the definition of “closed facility” , the Commission clarifies that it is not the intent of this regulation to define a CAFO as closed where it has ceased operation but intends to sell the facility within a reasonable amount of time, or where the facility will restock animals within two years, or within some other reasonable period of time.
The Commission finds it appropriate to exclude harvested dry forage from being defined as a “raw material.” Such forage is commonly found and stored in rural areas, runoff from such forage is not common, and contaminant concentrations in runoff are insignificant. In addition, water quality regulations do not contain provisions regarding runoff from dry harvested forage stored on farm fields or farmsteads. A best management practice for AFOs is to apply manure and wastewater at agronomic rates. Since the existing regulation does not define “agronomic rate” , the Commission added a definition of this term in order to clarify the performance standard for land applications of manure and wastewater. The expectation for meeting the requirements of the definition is use of the most current fertilizer suggestions of Cooperative Extension in Colorado or neighboring states, use of a qualified consultant’s fertilizer calculation, or use of the fertilizer calculation in the most current United States Department of Agriculture- Natural Resources Conservation Service Comprehensive Nutrient Management Plan that has been prepared for the AFO.
The Commission also adopted the Federal definition of “land application site” since it is applicable to AFOs. The definition of “land application site” makes reference to land under the control of an AFO or CAFO. The Commission finds it appropriate to clarify that such land is under the control of an AFO where it is owned or leased by the AFO, where cropping and/or nutrient budget decisions for the site are made by the AFO, or where the AFO land applies wastewater or manure to such land. Such land is not under the control of an AFO where the AFO simply agrees to release wastewater or manure to the owner/operator of land that does not otherwise meet the criteria of being under the control of the AFO. The Commission added a definition of “surface water” since it is this specific subset of waters of the state that is of concern in the process that the Division must use to designate an AFO as a CAFO. In keeping with the Federal interpretation, surface water includes subsurface water that may be hydrologically connected to surface water. The Commission intends that the hydrological connection aspect is pertinent only where it results in a contribution of pollutants being conveyed from ground water to surface water. The Commission revised the definitions section to delete the following definitions that are obsolete as a result of the new federal CAFO regulations, that are no longer applicable to today’s adopted rule, or have been superceded by definitions of other terms: animal unit, average working capacity, expanded facility, housed animal feeding operation, hydrologically sensitive area, new facility, no-discharge, open animal feeding operation, process wastewater, reactivated facility, reconstructed facility, significant groundwater recharge, “ ten year twenty-four hour storm and twenty five year twenty-four hour storm ” , and vadose zone.
To provide clarification of language in the rule and to be consistent with other regulations, the Commission revised the existing definitions of operator, man-made drainage system, and manure, deleted the definition of director , and added definitions for “Division” and “person” . Designation of an AFO as a CAFO: The Federal regulatory language for the process of determining if an AFO will be designated a CAFO was separated from the CAFO definition and placed into its own section (new Section 81.4) for the purpose of more readily finding and identifying the process. As presented in Part A, above, of today’s statement of basis, the Federal regulations focus on protection of surface water and a permit can address only protection surface water. This means that an AFO can be designated as a CAFO only where it could reasonably be expected to adversely affect surface water. The existing regulation has language that provides for an AFO to be designated as a CAFO where it is located in a hydrologically sensitive area, which includes areas where contamination of ground water could occur. Therefore, the “hydrologically sensitive area” language was removed in favor of the Federal criteria. However, the ground water protection aspects of the language were added to the “Practices to Protect Groundwater” subsection of the Animal Feeding Operations – Best Management Practices” section [section 81.6(6)].
The Commission understands that as part of the process of determining whether an AFO should be designated as a CAFO, the Division will consider the five criteria listed in today’s adopted regulation in order to conclude whether an AFO could cause significant degradation of surface water subject to antidegradation review, or could cause an exceedance of any adopted surface water quality standard. The latter standards are specified in Regulation No. 31, “The Basic Standards and Methodologies for Surface Water.”
Since the preamble of the Federal regulation allows States to provide an opportunity for an AFO that may be designated a CAFO to take actions that eliminate conditions that pose a risk to surface water quality, the Commission included provisions in the regulations that provides for such an opportunity in the form of an approvable work plan that is developed in consultation with the Division. The Commission is aware that some AFOs may have no easy solutions for eliminating or significantly abating risks to surface water. Such AFOs may indicate to the Division that it intends to remain in its location and operate as a CAFO and apply for a permit. Where an AFO does not complete and implement a work plan as required, the Commission added language that the Division may designate the AFO as a CAFO and be required to submit a complete CAFO discharge permit application.
AFOs can be designated as CAFOs where they directly discharge wastewater or manure into surface water through man-made drainage systems. The Commission clarifies that an overflow from an AFO impoundment or conveyance structure into surface water, or sheet flow runoff from and AFO into surface waters, are not direct discharges through man-made drainage systems. Clarification of AFO definition: The Commission finds it appropriate to provide clarification of what confined animal feeding operations are AFOs, and what are not AFOs. To be an animal feeding operation (AFO), a lot or facility must have animals stabled or confined for at least 45 days out of any 12 month period, and crops, vegetation, forage growth, or post-harvest residues are not sustained in the normal growing season over any portion of the lot or facility. Using this criteria, it is not the intent of this regulation to include true pasture and rangeland operations as AFOs. Nor is it the intent of this regulation to include properly grazed crop residues or winter-feeding sites on pastures or rangeland as AFOs. A winter feeding site is not an AFO where it shows no vegetation during the winter but shows regrowth of desirable forage in the spring. However, pasture and grazing operations may have confinement areas (e.g., feedyards, barns, pens) that may meet the definition of an AFO.
Regarding the “no vegetation” cover part of the criteria, page 7189 of the revised Federal regulations states that incidental vegetation existing in a part, or parts, of a confined area, does not exclude the feeding operation from meeting the definition of an AFO. The Commission encourages the Division to use common sense and sound judgment in evaluating confined areas with incidental vegetation for meeting the definition of an AFO.
Part of the AFO definition refers to no vegetative cover being present during the normal growing season. However, Page 7189 of the revised Federal regulations states that the “no vegetation” criteria in the definition is meant to be evaluated during the winter, if animals are confined during that time. The Commission is aware that backgrounding operations are common in the State, where cattle weaned in the fall are fed in pens through the winter until they are turned out to pasture or rangeland in the spring. In keeping with the Federal preamble language, the Commission finds that backgrounding feedlots are AFOs where no vegetation is present for 45 days or more (whether during the winter or normal growing season), and animals are confined for 45 days out of any 12-month period. The Commission encourages the Division to use common sense and sound judgment in evaluating backgrounding feedlots for meeting the definition of an AFO.
Ground water protection requirements: As discussed above, the revised Federal CAFO regulations focus on protection of the nation’s surface waters and do not, therefore, require provisions for protection of ground water from pollutants in manure or process wastewater. As a result, ground water protection provisions cannot be included as a condition in a CAFO permit, pursuant to section 25-8-504(2) of the Colorado Water Quality Control Act. The Commission recognized in 1992 the need to protect ground water under CAFOs by including in this Regulation #81 the previously existing section 81.4, “Ground Water Protection Requirements – Concentrated Animal Feeding Operations.” Therefore, the Commission finds that such provisions should be retained in this control regulation, with the following revisions. The previous provisions were revised to retain a maximum seepage rate of 1 x 10 -6 cm/sec as the baseline liner requirement for impoundments. This seepage rate standard is consistent with the allowable seepage standard provided in subsection 61.14(9) of Regulation No. 61 (the ground water permit regulations) which states that where the seepage from an impoundment, “does not exceed 1 x 10 -6 cm/sec” such an impoundment “will be considered not to have a discharge to waters of the state, by virtue of the insignificant nature of the seepage…” This standard also is consistent with the statement of basis and purpose language (in Regulation #61) for the July 10, 1989 ground water permitting regulation hearing which states that, “the Division’s design criteria requires that domestic wastewater and storage impoundments be sealed such that the seepage from the impoundment does not exceed 1 x 10 -6 cm/sec. This criteria has been used in the design of numerous domestic facilities, and it generally is considered to require an “impervious” liner to meet it. “ For impoundments that collect wastewater runoff only, the previous provisions were retained that required a maximum seepage rate of 7.35 x 10 -6 cm/sec (1/4” per day). The Commission recognizes that this weaker seepage standard, relative to the baseline standard, is appropriate for the more dilute nature of the retained wastewater and the short retention time allowed (see statement of basis and purpose for 1992 revisions to this regulation), but it may not be sufficiently protective of ground water where porous, low nutrient-retaining soil, such as sands, exists below an impoundment. The primary constituent of concern regarding ground water quality that typically seeps below impoundments is ammonium-nitrogen, which has a positive charge. Where ammonium-nitrogen is exposed to air (such as after an impoundment is abandoned), it can rapidly be converted to nitrate-nitrogen, which is negatively-charged and soluble and can move rapidly to ground water in sandy-type soils. Positively-charged ions can be adsorbed by negatively-charged soil particles, thereby being deterred from leaching to any significant depth in the soil. Therefore, the adopted rule specifies that the more lenient seepage rate can be used only where the ten (10) foot soil depth zone immediately beneath the impoundment has a cation exchange capacity (CEC) of at least 15 meq/100 g of soil, which is based on information in the Journal of Environmental Quality (Volume 29, November-December 2000) entitled, “Toward Site-specific Design Standards for Animal- Waste Lagoons: Protecting Ground Water Quality.” The intent of these regulations is that the required CEC must exist below the entire surface of the impoundment, which requires that representative soil sampling be made in multiple locations, including perimeter and interior locations, within the “foot print” surface area of the impoundment.
As discussed above, ground water protection measures cannot be included as conditions in CAFO permits. While the existing rule required some, but not all, CAFOs to have evidence of a completed liner having been constructed in impoundments, the amended rule specifies that such evidence is required of all CAFOs, that it be prepared by a professional engineer certified in Colorado, and that it be provided to the Division upon request. The Commission recognizes that most CAFOs do not currently have the newly required evidence. To allow time for the CAFOs to obtain the evidence, the Commission set a deadline of April 13, 2006 by which CAFOs must have the evidence. This date is the latest deadline by which existing CAFOs must have applied for a permit under the revised federal CAFO regulations. After the deadline, the Division will request the evidence when a permit application is received, and during an inspection. The Commission is aware that ground water located too close to impoundment bottoms can cause functional problems with construction and maintenance of impoundments. It also recognizes that impoundments pose a greater risk to ground water quality where they are located in close proximity to ground water. This risk is heightened where ground water supplies drinking water for the public. The Commission also recognizes that existing impoundments may be difficult to re-locate, but that it is appropriate to subject newly-constructed lagoons at new source CAFOs to location constraints. In order to provide for reasonable locations of impoundments, but not where they pose a potentially high risk to ground water quality or to proper construction and maintenance, the adopted rule specifies setbacks for impoundment locations for new source CAFOs.
The Commission added language requiring that manure and wastewater be removed from impoundments in a manner that does not damage the integrity of the liner. Liner integrity is at risk where manure is removed from impoundments using mechanical equipment and where it is difficult to discern the bottom of settled out manure versus the top of a soil liner, or where liquid remains in the impoundment. Mechanical equipment includes rubber- tired or track machinery, track hoes, and agitator pumps. It does not include other pumps such as floating pumps. Where an impoundment will be dewatered via pumps, agitators, or the like, the potential impacts to the structure should be considered and necessary protective features should be put into place, such as concrete pads, rip rap or additional sacrificial material, or an indicator of the impoundment bottom to signal an equipment operator where to stop pumping. The Commission believes that a high level of assurance needs to exist that the liner standard continues to be met after manure removal, in order to assure the public that ground water is being protected. Therefore, the regulation was revised to require CAFOs to submit to the Division for approval a Standard Operating Procedure (“SOP” ) that the CAFO will use and that demonstrates how manure will be removed such that the liner integrity is not damaged. Examples of appropriate methods include, but are not limited to, removing teeth from mechanical cleaning equipment and adding a protective “lip” to mechanical cleaning buckets to prevent digging. The adopted regulation also requires the operator to certify that manure was removed according to the SOP, maintain on-site copies of the SOP and certifications, and submit the SOP or certifications to the Division upon request. Where the SOP was not followed, it is appropriate to require that the liner be made available for inspection and, where just cause exists upon inspection, to require that the liner be re-certified by a professional engineer. The Commission added an additional provision to the regulations that requires an operator to visually inspect exposed liners weekly to assure that a liner is maintained to minimize seepage. The requirement is applicable to exposed liners since the liner on impoundment bottoms is commonly not visible, being hidden by wastewater or manure sludge. The exposed liners would be inspected to identify physical changes or deficiencies that may affect the liner, such as rodent burrows, deep-rooted plants, rills, and step erosion caused by wave action. The weekly inspection frequency is the same as required for other inspections that must be made of impoundments, in accordance with the CAFO permit provisions in section 61.17 of the Colorado Discharge Permit System Regulations. Where deficiencies are found, the adopted regulation requires that they be corrected within 30 days, unless a longer correction period that was used by the operator is accompanied by an explanation of why the longer time period was necessary. These provisions are also consistent with the CAFO permit provisions in section 61.17 of the Colorado Discharge Permit System Regulations.
The existing regulation has language regarding the design, construction, and performance standards of wastewater conveyance structures. The existing language requiring that conveyance structures be constructed to prevent exceedances of water quality standards was deleted since wastewater is conveyed by such structures for only a short period of time (during storms) and the depth of flow is minimal. In addition, the process of determining whether seepage in a structure will prevent an exceedance of ground water quality standards can be complicated and expensive. The existing language requiring seepage of wastewater from conveyances to be limited through the use of very low permeability materials and proper compaction was revised in response to stakeholder input and information provided by the Colorado conservation engineer for the United States Department of Agriculture- Natural Resources Conservation Service. Based on this information, conveyance structures constructed in soils with less than 35 percent gravel do not need to be compacted or lined. Structures placed in soils with greater than 35 percent gravel need to be compacted or lined in order to sufficiently minimize seepage in the structures.
The Commission is aware that conveyance structures that carry process-generated wastewater have a higher risk of seepage from the structures impacting ground water as a result of the higher concentrations of pollutants in the wastewater and the greater frequency of flow of the wastewater. The Commission also is aware that the extent of seepage below a conveyance structure can be greater where the structure is constantly in a wetted condition, such as where process-generated wastewater flows daily from a milking parlor. The Commission considers such a structure to be essentially an impoundment and, therefore, required in the adopted regulations that conveyances that carry process-generated wastewater non- intermittently (48 hours or less between conveyance events) be constructed and maintained to seep at a maximum rate of 1 x 10 -6 cm/sec.
The existing section 81.8 (Monitoring) was deleted since it addressed water quality monitoring that may be required of either surface or ground water, or both. Since ground water protection provisions are being retained in today’s adopted rule, ground water monitoring language was added to the new section 81.5. The Commission believes that ground water monitoring beneath impoundments is not justified, except where the liner in an impoundment is not being properly maintained, or where required evidence of ground water protection measures does not exist or is not provided to the Division upon request. In such situations, the Commission found it appropriate to specify the factors the Division shall consider before determining whether ground water monitoring is required. Where the Division determines that ground water monitoring is necessary, it is reasonable to allow the monitoring to be done using, to the extent practicable, existing facility wells, such as irrigation wells and drinking water wells. Impoundment Closure: Closed impoundments are a risk to ground water quality once they become dry since ammonium-nitrogen that has seeped below a lagoon can be exposed to air. The oxygen in air can convert the ammonium to nitrate-nitrogen, which is negatively-charged and soluble and movable to ground water. Therefore, the Commission revised the regulation to include the requirement that a closed CAFO remove wastewater and manure from impoundments and backfill the impoundments with at least five feet of soil to minimize the access of oxygen to soil ammonium. Because backfilling may be difficult during the winter, the Commission allowed 120 days for the backfilling to be completed. It also included language that provides a CAFO the opportunity to submit to the Division for approval an alternative closure procedure that provides for protection of ground water. Practices for AFOs to Protect Ground Water: As presented in the “Designation of an AFO as a CAFO” section above, the ground water protection provisions of the existing “hydrologically sensitive area” language can no longer be included as criteria for designating an AFO as a CAFO. As a result, these provisions were added to subsection 81.6(6) as a best management practice for protecting ground water quality. In this way, the Commission’s intent is maintained whereby ground water is protected where it is at risk from an AFO being located above it.
The Commission finds it appropriate to clarify in today’s rulemaking the existing “hydrologically sensitive area” language pertaining to ground water. Regarding an AFO being in a location where significant ground water recharge occurs, stakeholders indicated their preference that specific criteria be stated in the regulation for how such recharge will be determined, so that AFOs are aware of the standard to which they may be held. Stakeholders also agreed that the following publication be used for making a determination: the United States Department of Agriculture- Natural Resources Conservation Service’s current “Agricultural Waste Management Field Handbook, Part 651, Chapter 7, Geologic and Ground Water Considerations.” The Commission found it appropriate to specify in the regulation use of this document.
Regarding protection of future drinking water system withdrawals, the Commission added language that requires the Division to perform a water source susceptibility analysis. The goal of the analysis is to reveal whether an AFO has a “medium-high” or “high” potential for contaminating existing or reasonably likely future drinking water system withdrawals from ground water. The Commission clarifies that “reasonably likely future drinking water system withdrawals” refers to any new development or public facility, such as a new housing area or school, proposed to be located within a Source Water Assessment area. In addition, the Commission intends that the Division use its current “Source Water Assessment Methodology for Ground Water Sources” document for conducting the water source susceptibility analysis, and that the Division may accept the use of other methodologies that appropriately evaluate the physical setting of the ground water and the contaminant threat from the AFO, using the factors stated in the regulation.
Where an AFO could adversely affect ground water quality, the Commission adopted language requiring that the AFO protect ground water by installing a liner such that the seepage rate from each impoundment does not exceed 1 x 10 -6 cm/sec, which is the same seepage rate standard required of CAFOs. Language also was added that provides for liners to be installed according to an approvable plan that is developed in consultation with the Division.
PARTIES TO THE RULEMAKING HEARING