Notice of Proposed NPDES General Permit for Discharges From Concentrated Animal Feeding Operations (CAFOs) in New Mexico, Oklahoma, and on Indian Lands in New Mexico and Oklahoma (NMG010000 and OKG010000)

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Notice of draft NPDES general permit.

SUMMARY:

EPA Region 6 is proposing to reissue NPDES General Permit No. NMG010000 and OKG010000 for discharges from CAFOs in New Mexico, Oklahoma, and on Indian lands in New Mexico and Oklahoma. This permit was originally issued in the Federal Register at 58 FR 7610 with an effective date of March 10, 1993, and an expiration date of March 10, 1998. The applicable requirements from that 1993 permit are continued in the current proposal to reissue. The current proposal also adds additional requirements contained in revised CAFO regulations at 40 CFR parts 122 and 412 which were published in the Federal Register at 68 FR 7175 on February 12, 2003.

DATES:

Comments on this proposed permit must be submitted by February 7, 2005.

ADDRESSES:

Comments on this proposed permit should be sent to the Regional Administrator, EPA Region 6, 1445 Ross Avenue, Dallas, Texas 75202-2733.

FOR FURTHER INFORMATION CONTACT:

Ms. Diane Smith, EPA Region 6, 1445 Ross Avenue, Dallas, Texas 75202-2733, telephone (214) 665-2145. The complete fact sheet and proposed permit can be found on the Internet at http://www.epa.gov/earth1r6/6wq/6wq.htm. Copies of the fact sheet and proposed permit may also be obtained from Ms. Smith. In addition, the current administrative record on the proposal is available for examination at the Region's Dallas offices during normal working hours after providing Ms. Smith 24 hours advanced notice.

SUPPLEMENTARY INFORMATION:

EPA's comments and public hearing procedures may be found at 40 CFR 124.10 and 124.12 (48 FR 14264, April 1, 1983, as amended at 49 FR 38051, September 26, 1984). The comment period during which written comments on the draft permit may be submitted extends for 60 days from the date of this notice. During the comment period, any interested person may request a Public Hearing by filing a written request which must state the issues to be raised. A public hearing will be held when EPA finds a significant degree of public interest.

Regulated categories and entities include:

This table is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be regulated by this action. This table lists the types of entities that EPA is now aware could potentially be regulated by this action. Other types of entities not listed in the table could also be regulated. To determine whether your (facility, company, business, organization, etc.) is regulated by this action, you should carefully examine the applicability criteria in Part I of the permit. If you have questions regarding the applicability of this action to a particular entity, consult the person listed in the preceding FOR FURTHER INFORMATION CONTACT section.

Section 301(a) of the Clean Water Act (CWA or the Act), 33 U.S.C. 1311(a), makes it unlawful to discharge pollutants to waters of the United States in the absence of authorizing permits. CWA section 402, 33 U.S.C. 1342, authorizes EPA to issue National Discharge Elimination System (NPDES) permits allowing discharges on condition they will meet certain requirements, including CWA sections 301, 304, and 401 (33 U.S.C. 1331, 1314 and 1341). Those statutory provisions require that NPDES permits include effluent limitations requiring that authorized discharges: (1) Meet standards reflecting levels of technological capability, (2) comply with EPA-approved state water quality standards and (3) comply with other state requirements adopted under authority retained by states under CWA 510, 33 U.S.C. 1370.

A. Application for Coverage

To be covered by this permit, CAFO owners/operators must submit a Notice of Intent (NOI) for permit coverage. The information required in the NOI is listed in the permit and is required by Federal regulations at 40 CFR 122.21(a)(1). For CAFOs that are not new sources, the Endangered Species and National Historic Preservation Act eligibility provisions contained in Appendices A and B of the permit must be met. For new source CAFOs (Large CAFOs whose construction began after April 14, 2003), and new source expansions of existing CAFOs, the facility must submit an Environmental Information Document (EID) that must contain information for EPA's use in consultations under the Endangered Species Act and National Historic Preservation Act. The EID enables EPA in performing a National Environmental Policy Act (NEPA) environmental review. Region 6 must have completed the NEPA review and issued an Environmental Impact Statement (EIS) or Finding of No Significant Impact (FNSI) for a new source CAFO before the facility is eligible for coverage under the general permit.

The permit specifies the deadlines by which facilities must apply for permit coverage. For facilities that were defined as CAFOs under regulations in effect prior to April 14, 2003, and are not new sources, coverage must be sought within 30 days after the effective date of this permit. For newly defined CAFOs (operations defined as CAFOs as of April 14, 2003), but not defined as CAFOs under regulations in effect prior to that date (for example, dry manure-handling poultry operations having as many or more than 125,000 birds), coverage must be sought no later than February 13, 2006. For new sources, coverage must be sought at least 30 days prior to the time the CAFO commences operation.

B. Limitations on Permit Coverage

In the proposed permit, certain CAFOs are not eligible for coverage under this NPDES general permit, but must apply for an individual NPDES permit:

1. CAFOs that have been notified by EPA to apply for an individual NPDES permit in accordance with 40 CFR 122.28(b)(3).

2. CAFOs that have been notified by EPA Region 6 that they are ineligible for coverge because of a past history of non-compliance.

3. CAFOs not meeting the Endangered Species and/or Historic Properties eligibility requirements specified in the permit.

4. CAFOs commencing operation after June 25, 1992, discharging to certain waters in Oklahoma that are designated as Outstanding Resource Waters and/or Scenic Rivers in the Oklahoma Water Quality Standards, Appendices A and B.

C. Effluent Limitations

The permit generally requires that there shall be no discharge of manure, litter or process wastewater pollutants into waters of the U.S. from the CAFO production area. Whenever precipitation causes an overflow of manure, litter or process wastewater, however, pollutants in the overflow may be discharged into U.S. waters provided the production area is designed, constructed, operated and maintained to contain all manure, litter and process wastewater, including the runoff and direct precipitation from a 25-year, 24-hour rainfall event. The design standard for new source swine, poultry and veal calf CAFOs is a 100-year, 24-hour rainfall event. The permit requires no discharge of manure, litter or process wastewater from retention or control structures to groundwater with a direct hydrologic connection to surface waters of the U.S., and no discharge of rainfall runoff from manure or litter storage piles. The permit also requires no discharge of manure, litter or process wastewater to waters of the U.S. from land application areas under the operational control of the CAFO. These requirements are contained in the CAFO regulations at 40 CFR part 412 and/or the previous Region 6 NPDES general permit for CAFOs in New Mexico and Oklahoma. The permit also contains a number of additional requirements, which were contained in the previous Region 6 CAFO general permit, for a CAFO's animal confinement, storage and handling areas, and manure/wastewater land application areas.

D. Nutrient Management Plan (NMP)

The permit requires each CAFO covered by the permit to develop and implement a site-specific NMP, as required by Federal regulations at 40 CFR parts 122 and 412. The permit gives the schedule for developing and implementing an NMP. New source CAFOs are required to develop and implement an NMP upon the date of permit coverage. The requirement for other than new source CAFOs is to develop and implement an NMP no later than December 31, 2006.

Other Legal Requirements

A. State/Tribal Certification

Under section 401(a)(1) of the Act, EPA may not issue an NPDES permit until the State or Tribe in which the discharge will originate grants or waives certification to ensure compliance with appropriate requirements of the Act, state or tribal law. The Region has solicited certification from the States of New Mexico and Oklahoma, and the Pueblos of Acoma, Isleta, Nambe, Picuris, Pojoaque, Sandia, San Juan, Santa Clara and Tesuque.

B. National Environmental Policy Act

With the exception of issuance of a permit to a “new source”, section 511(c)(1) of the Clean Water Act exempts EPA NPDES permit actions from the requirements of the National Environmental Policy Act of 1969 (NEPA). New source CAFOs are Large CAFOs on which construction began after April 13, 2003. EPA anticipates that relatively few CAFOs seeking coverage under the general permit will be such “new sources”. In the proposed CAFO general permit, a new source CAFO must go through the NEPA environmental review process prior to applying for coverage under the permit. A similar NEPA review procedure was used under the previous Region 6 CAFO general permit issued in 1993.

C. Endangered Species Act

The Endangered Species Act (ESA) requires federal agencies, in consultation with the U.S. Fish and Wildlife Service (FWS), to insure that any action they authorize is not likely to jeopardize the continued existence of any listed species or result in the destruction or adverse modification of critical habitat. In order to fulfill it's obligations under ESA, Region 6 has begun consultation with FWS regarding reissuance of this general permit.

EPA proposes use of an eligibility screening mechanism to ensure protection of listed species and their critical habitat. It is designed to allow coverage under this general permit only to those existing CAFOs that (1) have no listed species or critical habitat in their county or in proximity to their CAFO or discharge locations; or (2) have completed an ESA section 7 consultation that considered all currently listed species and critical habitat and which resulted in either a “no jeopardy” opinion by FWS or FWS concurrence that the CAFO's permit-related activities are “unlikely to adversely affect” listed species or critical habitat; or (3) have an ESA section 10 permit which considers all currently listed species and critical habitat; or (4) can document that the CAFO's permit-related activities are “not likely to adversely affect” listed species or critical habitat, or has reached agreement with FWS on measures to avoid or eliminate adverse effects. Existing CAFOs that do not certify compliance with one or more of those criteria cannot obtain coverage under the general permit and must submit an individual permit application. This eligibility screening mechanism is similar to that included in several previously issued and proposed NPDES general permits, including the proposed NPDES general permit for Small Municipal Separate Storm Sewer Systems in New Mexico and in other areas where Region 6 retains NPDES permitting authority, and the Multi-sector Stormwater General NPDES Permit and the Construction Stormwater NPDES General Permit for those same areas in Region 6.

Note:

As a possible alternative to the ESA eligibility screening mechanism requirements (1) and (4), above, EPA Region 6 is currently working with the U.S. Fish and Wildlife Service (FWS), as a part of its ESA consultation on the general permit, to geographically designate areas of concern for endangered species and critical habitat. Under this geographic alternative, the eligibility requirement (1) would be met if a CAFO, or the point(s) where authorized discharges reach waters of the U.S., is outside of any designated areas of concern. Where a CAFO, or the point(s) where authorized discharges reach waters of the U.S., is located within a designated area of concern, the eligibility requirement (4) would require the CAFO to meet conditions and measures to avoid or eliminate adverse effects to listed species or critical habitat that were caused by authorized discharges.

New source CAFOs and new source expansions of existing CAFOs must include analysis of their potential effects on federally listed species and critical habitat in their EIDs. If the CAFO may affect listed species or critical habitat, EPA will integrate the required ESA consultation with its NEPA review.

D. National Historic Preservation Act

Section 6 of the National Historic Preservation Act (NHPA) requires that federal agencies consider the effects of their undertakings (such as issuance of an NPDES permit) on properties listed or eligible for listing in the National Register of Historic Places. Prior to completion of such an undertaking, the Federal agency shall provide the Advisory Council on Historic Preservation a reasonable opportunity to comment on the undertaking. To fulfill its NHPA obligations, Region 6 is initiating consultation with the Oklahoma Historical Commission, the New Mexico Historical Commission and Indian tribes in New Mexico and Oklahoma.

EPA proposes an eligibility screening mechanism designed to minimize harm to any properties listed or eligible for listing on the National Register of Historic Places that may be directly and adversely affected by the reissuance of this general permit. This mechanism is designed to allow coverage under this general permit only to those existing CAFOs (i.e., those on which construction commenced prior to April 13, 2003) that (1) document that their permit-related activities do not affect properties listed or eligible for listing on the National Register of Historic Places; or (2) have obtained and are in compliance with a written agreement with the appropriate State Historic Preservation Officer and/or Tribal Historic Preservation Officer that outlines measures to be taken to mitigate or prevent adverse effects to historic properties. Existing CAFOs that do not certify compliance with one of these criteria cannot obtain coverage under the general permit and must submit an individual permit application. This eligibility screening mechanism is similar to that included in several issued and proposed NPDES general permits, including the proposed NPDES general permit for Small Municipal Separate Storm Sewer Systems in New Mexico and in other areas where Region 6 retains NPDES permitting authority, and the Multi-sector Stormwater General NPDES Permit and the Construction Stormwater NPDES General Permit for those same areas in Region 6.

New source CAFOs must include an analysis of their potential effects on properties listed or eligible for listing on the National Register of Historic Places in their EIDs. If the CAFO may affect eligible properties, EPA will integrate the required section 106 consultation with its NEPA review.