On September 11, 2013, Iowa animal producers were put in EPA's bull's eye.
EPA and the Iowa Department of Natural Resources (IDNR) signed a final work plan agreement which will likely result in major investigations, paperwork by the pound, issuance of Clean Water Act (CWA) NPDES permits and civil and criminal enforcement cases against Iowa livestock producers.
How did it come to this, you ask?
In July, 2012, EPA Region 7 issued a 40-page report with 15 appendixes charging Iowa officials with insufficiently regulating animal agriculture. EPA cannot stand the fact it has lost major cases against agriculture so it is seeking other methods to punish animal agriculture producers.
The Sierra Club, Environmental Integrity Project and Iowa Citizens for Community Improvement filed a petition including 31 allegations with EPA in 2007 claiming Iowa officials were turning a blind eye to water pollution caused by unpermitted discharges from animal producers into waters of the state.
EPA says there are 2,658 large CAFOs in Iowa not covered by an individual permit. There are 3,152 medium AFOs not covered by an individual permit. There are 182 large open lot CAFOs of which only 98 are covered by an individual NPDES permit.
These numbers infuriate EPA and its environmental fellow travelers. The reason there are no permits is because there are no discharges that the average person would determine. This is not good enough for EPA and the environmental groups.
The agreement between IDNR and EPA will require seven major steps which will impact all animal agriculture in Iowa and eventually every state which grows livestock and poultry.
IDNR must conduct a comprehensive survey of all large CAFOs and medium AFOs that currently do not have a CWA NPDES wastewater discharge permit. There must be identification of any discharge from the facility to a water of the U.S. -- which means if you have dust or litter or manure on the ground outside your production area and it washes into a stream, you need a permit.
IDNR will review all relevant and available information and evaluate site specific factors "…that may signal the likelihood of a release to a water of the U.S." IDNR will inspect manure control structures, determine if there is runoff from production areas, determine if there are discharges which are continuous, sporadic or intermittent and determine if this manure, litter or process wastewater "…originates outside of and passes over, across or through the facility or otherwise comes into contact with animals confined in the operation."
IDNR inspectors will also view areas downhill from a confinement facility to discern if there are any discharges "…to the surface of the ground, wells, sinkholes, or waters of the U.S." If IDNR observes or believes there is evidence present that may show a discharge or runoff has occurred in the past, it must document this in detail with photographs.
The work plan agreement as noted is effective on September 11, 2013…another day that lives in infamy in this country. The plan can be found on www.epa.gov/region7/water.
Standard Operating Procedures
If you are in the animal livestock business in Iowa or any other state, the work plan discusses in detail standard operating procedures to be followed for onsite inspection of open feedlots, which I predict will be hit hard by this program. There is a section on onsite inspection for confinement facilities at both large and medium concentrated feeding sites. The sections in the work plan on facility inspections include a review of your records and an exit interview.
At all inspections, you should videotape and take photographs of exactly what the inspector is seeing and doing at all times. Be ready to contest what the inspector is saying or concluding so your protests will be included in the copy of inspection notes.
Make clear what the facts are in the exit interview when the inspector covers any alleged violations or "potential" violations. Remember the courts have said there must be an actual discharge.
Prepare your own written report for the record. Have an expert on CAFO rules from your local Farm Bureau or producer group present. Have your attorney who knows CWA law and CAFO regulations present along with a video team to record every second in order to defend yourself. (You might want your county sheriff or deputy there as well.)
EPA, as you have noticed in the news media this past week, is being charged with putting the coal industry and coal fired power plants out of business through rule-making. You are next.