In February 2010, DNR released for public comment two Draft General WPDES Permits (“GPs”) for CAFOs.  It is DNR’s intention to use GPs, rather than Individual Permits issued on a farm-by-farm basis, for large dairy CAFOs up to 5,270 animal units (“AU”) in size.  DNR has stated that use of General Permits will allow the agency to redirect staff time away from needless paperwork and towards increased field presence to ensure CAFO compliance.

CAFOs, like other “point sources” of water pollution, are required by the Clean Water Act and federal and state implementing regulations to obtain discharge permits.  In Wisconsin, these permits are called Wisconsin Pollutant Discharge Elimination (WPDES) permits, and they contain limitations on the amounts of pollutants that may be discharged to surface waters as well as required management practices designed to limit water pollution.

Because most large CAFOs in Wisconsin are “presumed to discharge to waters of the State,” they must obtain a WPDES Permit.  At present, all of the approximately 192 WPDES-permitted CAFOs in Wisconsin hold an Individual Permit.  In an ideal world, these Individual Permits would be carefully tailored based on local conditions and the state of nearby waterways.  Since DNR’s revision to the “CAFO Rule” (NR 243) in 2007, however, most CAFO permits have simply incorporated, practically verbatim, the complex and technical requirements found in the Rule.

For CAFOs, a central component of the permit application process is the development of a nutrient management plan (NMP).  These NMPs describe how the facility will manage and dispose of animal manure, ideally in a way that eliminates the risk of nutrient or bacteria runoff to nearby lakes and streams.

What Might Be Lost Under a General Permitting Scheme?

General Permits are not written on a site-specific basis.  Instead, the same exact permit conditions would apply uniformly to all CAFOs.  There are also changes to the way a CAFO applies for and obtains a permit, and the public’s ability to participate in or challenge a permitting decision.

1.  No site-specific permit conditions

WPDES Permits have one overarching purpose: to ensure compliance with applicable water quality standards.  Because those standards vary around the state (some streams might be meeting water quality standards, for example, while others may not be), General Permits are not able to ensure that water quality standards will be met in all cases.  Most General Permits used for other sources, such as dischargers of industrial stormwater, are not focused on “end-of-pipe” pollution limits; instead, they rely on best management practices and other pollution limitation techniques.  A CAFO’s nutrient management plan would fit this description, so this would not be a significant change from the status quo.

To date, DNR has never issued a CAFO permit with true water quality-based pollution limits, and the agency has argued that it does not have the authority to do so under NR 243.

2.  Reduced opportunity to challenge the permit language

Under a General Permitting scheme, the General Permit itself is only issued or revised once every five years.  That single permit could eventually replace all of the 192 Individual Permits DNR has issued to date.  The public would only be able to review and comment upon (i.e., request DNR to strengthen) the permit language when the General Permit is revised after five years.

3.  No Environmental Analysis or Environmental Impact Statement on each CAFO

DNR must prepare at least an Environmental Analysis (EA) for each WPDES permit it issues.  In the case of the Rosendale Dairy WPDES Permit, DNR developed a full Environmental Impact Statement (EIS) which is more robust and detailed than an EA.  Under the General Permitting scheme, the DNR would prepare only one EA or EIS for the General Permit, and would not do so on each individual CAFO.

What Would Not be Lost Under a General Permitting Scheme?

While use of a General Permit reduces our ability to participate in permitting decisions for individual CAFOs, citizens may still be active participants in the regulatory process.

1.  Public Notice, Hearing, and Comment Opportunities

State law requires DNR to provide notice to the public of “each complete application for a permit.”  Because each CAFO, even under a General Permitting scheme, will be required to submit a permit application, DNR must continue to provide this public notice for each proposed CAFO.  In addition, state law requires DNR to hold a public hearing “with respect to a permit application” if requested by “the petition of 5 or more persons[.]”  Therefore citizens can still request hearings to voice their concerns on each individual CAFO application.  DNR must also include a 30-day public comment opportunity on the application; any comments received must be “considered in the formulation of the final determinations for the permit application.”

2.  Opportunity to Review Nutrient Management Plans and Other Application Materials

Regulatory obligations for CAFOs under an Individual or a General Permitting scheme come from two places: the requirements of NR 243 (the “CAFO Rule”) and the CAFO’s permit application.  Prior to receiving permit coverage, a CAFO must submit (and, in most cases, DNR must approve) some key documents as part of the application process:

• A Nutrient Management Plan (NMP) that complies with NR 243 and the conservation standard for nutrient uptake developed by state and federal experts called the “590 Standard.”
• Engineering plans and specifications (P&S) for certain structures and facilities associated with the storage, containment, treatment or handling of manure or process wastewater.
• Additional site-specific background documentation such as site maps, aerial photographs, and soil maps; scaled drawings of manure storage facilities, runoff control systems, irrigation or treatment systems, and ancillary service or storage areas.

All of these documents and application materials will remain available from DNR for public review.  DNR approval of the NMP and the P&S is a necessary precursor to permit approval.  Furthermore, the components and restrictions of the NMP essentially become enforceable parts of the permit; even under the General Permitting scheme, each CAFO is required to “apply manure and process wastewater in compliance with the Department approved nutrient management plan.”

What Might Be Gained Under a General Permitting Scheme?

On March 18, 2010, MEA sent a letter to DNR Secretary Matt Frank urging him to withdraw DNR’s Draft General Permits for CAFOs until two critically important actions have been taken.  MEA believes that without these actions, any General Permit program for CAFOs is a step backwards for the environment and will likely result in decreased compliance with water pollution standards. 

1.  Increase CAFO permit application and annual fees to grow DNR staff and fund critical field efforts.

Permitted CAFOs currently pay a paltry $345 annual fee to DNR.  This amount falls far short of what is needed for a robust regulatory program and has kept DNR understaffed, overworked, and at times ineffective.  Consider the following:

• Municipalities that handle and dispose of as much waste as Wisconsin’s largest CAFOs pay tens of thousands of dollars annually to support DNR’s programs.  They also have to spend money actually treating their waste before disposal, unlike CAFOs.
• DNR spent in excess of $100,000 of taxpayer money on the permitting process for Rosendale Dairy, Wisconsin’s largest CAFO at 8,300 head of cattle.  Rosendale Dairy involved private investments of over $65 Million.
• Even though the number of permitted CAFOs in Wisconsin has increased nearly five-fold over the past 15 years, DNR staffing for CAFO regulation has been stagnant.
• DNR has only one staff expert dedicated to reviewing the nutrient management plans for all of Wisconsin’s 194 existing CAFOs.  In addition, DNR currently has over a dozen pending permit applications for CAFOs that must be reviewed.

We propose, at a minimum, that a CAFO permit application fee of $1,500, and annual fees of $.50 per animal unit, be assessed.  Annual fees would range from $350 for the smallest permitted CAFO to $5,750 for the largest.

2.  Develop, and publicly commit to, a robust and transparent investigation and compliance program for CAFOs.

New revenue from increased CAFO permit fees should be dedicated to the development and enforcement of a clear, robust, and transparent compliance program for CAFOs.  DNR’s compliance program for CAFOs is lackluster at best, and neither the agency nor the public has any real way of knowing whether the terms and conditions of those permits issued to CAFOs are meaningful or protective of water quality.  The system as it stands now is “self regulation” at its worst.

DNR has stated that the use of General Permits will allow it to save time doing paperwork that is better spent in the field.  While this approach sounds reasonable, without assurances there is a great risk that any increase in resources will be stripped away from the agency.  Political influence within the DNR is tremendous, and the CAFO lobbyists have kept the compliance program weak.  Consider these facts:

• According to an investigation by the Wisconsin State Journal, DNR conducted inspections of only 19 CAFOs in 2009.  At this rate, it would take the agency nearly ten years to inspect all of Wisconsin’s existing CAFOs for permit compliance.  Other WPDES permittees are inspected several times during a typical 5-year permit cycle.
• Enforcement of pollution requirements against CAFOs is sporadic at best, and most commonly triggered by citizen complaints as opposed to DNR investigations.
• CAFOs rely on limited reporting and monitoring, and typically only submit an annual compliance report.  Other WPDES-permitted sources must extensively monitor their waste and submit monthly reports to DNR.
• In 2009, DNR entered into a “Memorandum of Understanding” with the Dairy Business Association and the Department of Agriculture, Trade and Consumer Protection.  This MOU established a working relationship between the regulators and the regulated industry that streamlines the permit application review process.

We propose that DNR develop, in partnership with the public and key stakeholders, a new CAFO Compliance Policy including a “yardstick” for tracking DNR progress over time.  Essential elements of any such policy must include: standards for field investigation by DNR staff (including frequency, methodology, and reporting requirements); a clear strategy for identifying violators and holding them accountable to the law; and a web-based public accountability tool (including key permit documents and compliance reports available for download from the DNR website).

If, and only if, these two important actions are taken by DNR should members of the public concerned about clean water consider supporting the use of General Permits for CAFOs.  If DNR takes these actions, however, the program as a whole has the potential to be stronger than the status quo.