

[Federal Register: December 21, 2005 (Volume 70, Number 244)]
[Proposed Rules]               
[Page 75771-75779]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr21de05-26]                         

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 122 and 412

[EPA-HQ-OW-2005-0036; FRL-8011-7]
RIN 2040-AE80

 
Revised Compliance Dates for National Pollutant Discharge 
Elimination System Permit Regulation and Effluent Limitation Guidelines 
for Concentrated Animal Feeding Operations

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: EPA proposes to extend certain compliance dates in the 
National Pollutant Discharge Elimination System (NPDES) permitting 
requirements (40 CFR part 122) and Effluent Limitations Guidelines and 
Standards (ELGs) (40 CFR part 412) for concentrated animal feeding 
operations (CAFOs) in conjunction with EPA's efforts to respond to the 
order issued by the Second Circuit Court of Appeals in Waterkeeper 
Alliance et al. v. EPA, 399 F.3d 486 (2nd Cir. 2005). The purpose of 
today's proposed rule is to address timing issues associated with the 
Agency's response to the Waterkeeper decision.
    This proposal would revise dates established in the 2003 CAFO rule, 
issued on February 12, 2003, by which facilities newly defined as CAFOs 
were required to seek permit coverage and by which all CAFOs were 
required to have nutrient management plans (NMPs) developed and 
implemented. EPA is proposing to extend the date by which operations 
defined as CAFOs as of April 14, 2003, who were not defined as CAFOs 
prior to that date, must seek NPDES permit coverage, from February 13, 
2006, to March 30, 2007. EPA is also proposing to amend the date by 
which operations that become defined as CAFOs after April 14, 2003, due 
to operational changes that would not have made them a CAFO prior to 
April 14, 2003, and that are not new sources, must seek NPDES permit 
coverage, from April 13, 2006, to March 30, 2007. Finally, EPA is 
proposing to extend the deadline by which CAFOs are required to develop 
and implement NMPs, from December 31, 2006, to March 30, 2007. This 
proposal would revise all references to the date by which NMPs must be 
developed and implemented currently in the 2003 CAFO rule.
    EPA will also be issuing a proposed rule to revise the 2003 CAFO 
regulations more broadly in order to address the Second Circuit Court 
of Appeals decision in a subsequent Federal Register Notice, which the 
Agency plans to propose for public comment in early 2006.

DATES: Comments on this proposed action must be received on or before 
January 20, 2006.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-OW-
2005-0036 by one of the following methods:
    (1) http://www.regulations.gov: Follow the on-line instructions for 

submitting comments.
    (2) E-mail: ow-docket@epa.gov, Attention Docket ID No. EPA-HQ-OW-
2005-0036.
    (3) Mail: Send the original and three copies of your comments to: 
Water Docket, Environmental Protection Agency, Mail code 4203M, 1200 
Pennsylvania Ave., NW., Washington, DC 20460, Attention Docket ID No. 
OW-2005-0036.
    (4) Hand Delivery: Deliver your comments to: EPA Docket Center, EPA 
West, Room B102, 1301 Constitution Avenue, NW., Washington, DC, 
Attention Docket ID No. OW-2005-0036. Such deliveries are only accepted 
during the Docket's normal hours of operation and special arrangements 
should be made for deliveries of boxed information.
    Instructions: Direct your comments to Docket ID No. EPA-HQ-OW-2005-
0036. EPA's policy is that all comments received will be included in 
the public docket without change and may be made available online at 
http://www.regulations.gov, including any personal information 

provided, unless the comment includes information claimed to be 
Confidential Business Information (CBI) or other information

[[Page 75772]]

whose disclosure is restricted by statute. Do not submit information 
that you consider to be CBI or otherwise protected through http://www.regulations.gov or e-mail. The http://www.regulations.gov Web site 

is an ``anonymous access'' system, which means EPA will not know your 
identity or contact information unless you provide it in the body of 
your comment. If you send an e-mail comment directly to EPA without 
going through http://www.regulations.gov your e-mail address will be 

automatically captured and included as part of the comment that is 
placed in the public docket and made available on the Internet. If you 
submit an electronic comment, EPA recommends that you include your name 
and other contact information in the body of your comment and with any 
disk or CD-ROM you submit. If EPA cannot read your comment due to 
technical difficulties and cannot contact you for clarification, EPA 
may not be able to consider your comment. Electronic files should avoid 
the use of special characters, any form of encryption, and be free of 
any defects or viruses. For additional information about EPA's public 
docket visit the EPA Docket Center homepage at http://www.epa.gov/epahome/dockets.htm
.

    Docket: All documents in the docket are listed in the http://www.regulations.gov
 index. Although listed in the index, some 

information is not publicly available, e.g., CBI or other information 
whose disclosure is restricted by statute. Certain other material, such 
as copyrighted material, will be publicly available only in hard copy. 
Publicly available docket materials are available either electronically 
in http://www.regulations.gov or in hard copy at the Water Docket in 

the EPA Docket Center, EPA West, Room B102, 1301 Constitution Ave., 
NW., Washington, DC. The Public Reading Room is open from 8:30 a.m. to 
4:30 p.m., Monday through Friday, excluding legal holidays. The 
telephone number for the Public Reading Room is (202) 566-1744, and the 
telephone number for the Water Docket is (202) 566-2426.

FOR FURTHER INFORMATION CONTACT: Kawana Cohen, Water Permits Division, 
Office of Wastewater Management (4203M), Environmental Protection 
Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460; telephone 
number: (202) 564-2345, e-mail address: cohen.kawana@epa.gov.

SUPPLEMENTARY INFORMATION: 

I. General Information
    A. Does this Action Apply to Me?
    B. What Should I Consider as I Prepare My Comments for EPA?
II. Background
    A. The Clean Water Act
    B. History of Actions to Address CAFOs under the NPDES 
Permitting Program
    C. Ruling by the U.S. Court of Appeals for the Second Circuit
    1. Issues Upheld by the Court
    2. Issues Vacated by the Court
    3. Issues Remanded by the Court
    D. What Requirements Still Apply to CAFOs?
    E. Status of EPA's Response to the Waterkeeper Decision
    F. Compliance Dates in the 2003 CAFO Rule Affected by the 
Waterkeeper Decision
III. Today's Proposal
    A. Application Deadline for Newly Defined CAFOs
    1. Proposal to Extend Deadline for Seeking Permit Coverage
    2. Background
    3. Rationale
    B. Deadline for Nutrient Management Plans
    1. Proposal to Extend Deadline for Nutrient Management Plans
    2. Background
    3. Rationale
IV. Statutory and Executive Order Reviews
    A. Executive Order 12866: Regulatory Planning and Review
    B. Paperwork Reduction Act
    C. Regulatory Flexibility Act
    D. Unfunded Mandates Reform Act
    E. Executive Order 13132: Federalism
    F. Executive Order 13175: Consultation and Coordination with 
Indian Tribal Governments
    G. Executive Order 13045: Protection of Children from 
Environmental
    Health and Safety Risks
    H. Executive Order 13211: Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use
    I. National Technology Transfer and Advancement Act

I. General Information

A. Does This Action Apply to Me?

    This action applies to concentrated animal feeding operations 
(CAFOs) as defined in section 502(14) of the Clean Water Act and in the 
NPDES regulations at 40 CFR 122.23. The following table provides a list 
of standard industrial codes for operations covered under this revised 
rule.

                              Table 1.--Entities Potentially Regulated by this Rule
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                                                                                                    Standard
                                                                              North American       industrial
                Category                   Examples of regulated entities     industry code      classification
                                                                                  (NAIC)              code
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Federal, State, and Local Government:
    Industry............................  Operators of animal production
                                           operations that meet the
                                           definition of a CAFO.
                                          Beef cattle feedlots (including              112112               0211
                                           veal).
                                          Beef cattle ranching and farming             112111               0212
                                          Hogs............................              11221               0213
                                          Sheep...........................       11241, 11242               0214
                                          General livestock except dairy                11299               0219
                                           and poultry.
                                          Dairy farms.....................              11212               0241
                                          Broilers, fryers, and roaster                 11232               0251
                                           chickens.
                                          Chicken eggs....................              11231               0252
                                          Turkey and turkey eggs..........              11233               0253
                                          Poultry hatcheries..............              11234               0254
                                          Poultry and eggs................              11239               0259
                                          Ducks...........................             112390               0259
                                          Horses and other equines........              11292               0272
----------------------------------------------------------------------------------------------------------------

    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

[[Page 75773]]

this action. Other types of entities not listed in the table could also 
be regulated. To determine whether your facility is regulated under 
this rulemaking, you should carefully examine the applicability 
criteria in 40 CFR 122.23. 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.

B. What Should I Consider as I Prepare My Comments for EPA?

    1. Submitting Confidential Business Information. Do not submit this 
information to EPA through http://www.regulations.gov or e-mail. 

Clearly mark the part or all of the information that you claim to be 
CBI. (For CBI information in a disk or CD ROM that you mail to EPA, 
mark the outside of the disk or CD ROM as CBI and then identify 
electronically within the disk or CD ROM the specific information that 
is claimed as CBI). In addition to one complete version of the comment 
that includes information claimed as CBI, a copy of the comment that 
does not contain the information claimed as CBI must be submitted for 
inclusion in the public docket. Information so marked will not be 
disclosed except in accordance with procedures set forth in 40 CFR 
part.)
    2. Tips for Preparing Your Comments. It will be helpful if you 
follow these guidelines as you prepare your written comments:
    i. Identify the rulemaking by docket number and other identifying 
information (subject heading, Federal Register date and page number).
    ii. Follow directions--The Agency may ask you to respond to 
specific questions or organize comments by referencing a Code of 
Federal Regulations (CFR) part or section number.
    iii. Explain why you agree or disagree; suggest alternatives and 
substitute language for your requested changes.
    iv. Describe any assumptions and provide any technical information 
and/or data that you used.
    v. If you estimate potential costs or burdens, explain how you 
arrived at your estimate in sufficient detail to allow for it to be 
reproduced.
    vi. Provide specific examples to illustrate your concerns, and 
suggest alternatives.
    vii. Explain your views as clearly as possible.
    viii. Make sure to submit your comments by the comment period 
deadline identified.

II. Background

A. The Clean Water Act

    Congress passed the Federal Water Pollution Control Act (1972), 
also known as the Clean Water Act (CWA), to ``restore and maintain the 
chemical, physical, and biological integrity of the nation's waters'' 
(33 U.S.C. 1251(a)). Among the core provisions, the CWA establishes the 
NPDES permit program to authorize and regulate the discharge of 
pollutants from point sources to waters of the U.S. 33 U.S.C. 1342. 
Section 502(14) of the CWA specifically includes CAFOs in the 
definition of the term ``point source.'' Section 502(12) defines the 
term ``discharge of a pollutant'' to mean ``any addition of any 
pollutant to navigable waters from any point source'' (emphasis added). 
EPA has issued comprehensive regulations that implement the NPDES 
program at 40 CFR part 122. The Act also provides for the development 
of technology-based and water quality-based effluent limitations that 
are imposed through NPDES permits to control the discharge of 
pollutants from point sources. CWA section 301(a) and (b).

B. History of Actions To Address CAFOs Under the NPDES Permitting 
Program

    EPA's regulation of wastewater and manure from CAFOs dates to the 
1970s. EPA initially issued national effluent limitations guidelines 
and standards for feedlots on February 14, 1974 (39 FR 5704), and NPDES 
CAFO regulations on March 18, 1976 (41 FR 11458).
    In February 2003, EPA issued revisions to these regulations that 
focused on the 5% of the nation's animal feeding operations (AFOs) that 
presented the highest risk of impairing water quality and public health 
(68 FR 7176) (the ``2003 CAFO rule''). The 2003 CAFO rule required the 
owner or operators of all CAFOs \1\ to seek coverage under an NPDES 
permit. CAFO industry organizations (American Farm Bureau Federation, 
National Pork Producers Council, National Chicken Council, and National 
Turkey Federation (NTF), although later NTF later withdrew its 
petition) and environmental groups (Waterkeeper Alliance, Natural 
Resources Defense Council, Sierra Club, and American Littoral Society) 
filed petitions for judicial review of certain aspects of the 2003 CAFO 
rule. This case was brought before the U.S. Court of Appeals for the 
Second Circuit. On February 28, 2005, the court ruled on these 
petitions and upheld most provisions of the 2003 rule but vacated and 
remanded others. Waterkeeper Alliance et al. v. EPA, 399 F.3d 486 (2nd 
Cir. 2005). The court's decision is described below.
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    \1\ The Clean Water Act regulates the conduct of persons, which 
includes the owners and operators of CAFOs, rather than the 
facilities or their discharges. To improve readability in this 
preamble, reference is made to ``CAFOs'' as well as ``owners and 
operators of CAFOs.'' No change in meaning is intended.
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C. Ruling by the U.S. Court of Appeals for the Second Circuit

    The Second Circuit's decision in Waterkeeper upheld certain 
challenged provisions of the 2003 rule and vacated or remanded others. 
This discussion is included in the preamble to provide the reader with 
background information and context why this proposed action is 
necessary. While today's proposal deals solely with the compliance 
dates, EPA plans to publish a subsequent rulemaking that will address 
more broadly the substantive changes to the 2003 rule in response to 
Waterkeeper. The Agency plans to make available the more comprehensive 
rulemaking for public comment in early 2006.
1. Issues Upheld by the Court
    This section discusses provisions of the 2003 CAFO rule that were 
challenged by either industry or environmental petitions, but were 
upheld by the Waterkeeper court and therefore remain unchanged. EPA is 
not proposing to revise any of these provisions in today's notice and 
is not soliciting comment on them.
    a. Land Application Regulatory Framework and Interpretation of 
``Agricultural Storm Water''. The Waterkeeper court upheld EPA's 
authority to regulate, through NPDES permits, the runoff of manure, 
litter, and process wastewater that CAFOs apply to crop or forage land. 
The court rejected the Industry Petitioners' claim that land 
application runoff at CAFOs must be channelized before it can be 
considered to be a point source discharge subject to permitting. The 
court noted that the CWA expressly defines the term ``point source'' to 
include ``any * * * concentrated animal feeding operation * * * from 
which pollutants are or may be discharged,'' and found that the Act 
``not only permits, but demands'' that land application discharges be 
construed as discharges ``from'' a CAFO. Waterkeeper Alliance et al. v. 
EPA, 399 F.3d at 510.
    The Waterkeeper court also upheld EPA's determination in the 2003 
CAFO rule that precipitation-related discharges of manure, litter, or 
process wastewater from land application areas under the control of a 
CAFO qualify as ``agricultural storm water'' only where the CAFO has 
applied the manure in

[[Page 75774]]

accordance with NMPs that ensure ``appropriate agricultural 
utilization'' of the manure, litter, and process wastewater nutrients. 
EPA's interpretation of the Act in this regard was reasonable, the 
court found, in light of Congressional intent in excluding agricultural 
storm water from the meaning of the term ``point source'' and given the 
precedent set in an earlier Second Circuit case, Concerned Area 
Residents for the Environment v. Southview Farm, 34 F.3d 114 (2d Cir. 
1994). Waterkeeper Alliance et al. v. EPA, 399 F.3d at 508-09.
    b. Effluent Guidelines. The Waterkeeper court upheld the CAFO 
effluent guidelines against challenges from the litigants, except for 
the items remanded to EPA, as noted further below, as follows:

--Identification of best available technologies. The court rejected the 
environmental organizations' claim that when EPA chose the pollution 
control technologies on which to base effluent guidelines for CAFOs, 
the Agency did not meet its duty to identify the single CAFO with the 
best-performing technology. The court found that EPA had collected 
extensive data on the waste management systems at CAFOs and had 
considered approximately 11,000 public comments on the proposed CAFO 
rule, and on those bases, EPA had adequately justified its selection of 
``best available technologies'' on which to base the regulations.
--Groundwater controls. The court upheld EPA's decision to leave 
groundwater discharges to be addressed at the state level or on a site 
specific basis. EPA had determined that because such discharges depend 
greatly on local geology and other site-specific factors, the need for 
controls on groundwater discharges was a matter to be evaluated at the 
local level rather than established in a national regulation.
--Economic methodologies. The court upheld the financial methodologies 
that EPA used for determining whether the technology-based permit 
requirements for CAFOs set in the 2003 rule would be economically 
achievable by the industry as a whole.
2. Issues Vacated by the Court
    The following are the elements of the 2003 rule that the 
Waterkeeper court found to be unlawful and therefore vacated. EPA is 
not proposing to revise any of these provisions in today's notice and 
is not soliciting comment on them. As noted above, EPA intends to 
address the court's ruling vacating these provisions in a subsequent 
proposal that will follow in the coming months.
    a. Duty to Apply. The CAFO industry organizations argued that the 
EPA exceeded its statutory authority by requiring all CAFOs to either 
apply for NPDES permits or otherwise demonstrate that they have no 
potential to discharge. The court agreed with the CAFO industry 
petitioners on this issue and therefore vacated the ``duty to apply'' 
provision of the 2003 CAFO rule.
    The court found that the duty to apply, which the Agency had based 
on a presumption that most CAFOs have at least a potential to 
discharge, was invalid, because the CWA subjects only actual discharges 
to regulation rather than potential discharges. The court acknowledged 
EPA's strong policy considerations for seeking to impose a duty to 
apply--``EPA has marshaled evidence suggesting that such a prophylactic 
measure may be necessary to effectively regulate water pollution from 
Large CAFOs, given that Large CAFOs are important contributors to water 
pollution'' (399 F.3d at 506, fn.22)\2\--but found that the Agency 
nevertheless lacked statutory authority to do so.
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    \2\ Similarly, the United States Government Accountability 
Office concluded in 2003 that the measures in EPA's 2003 rule would 
solve the problems created by exemptions in the 1976 rule. (United 
States General Accounting Office. 2003. Livestock Agriculture: 
Increased EPA Oversight Will Improve Environmental Protection for 
Concentrated Animal Feeding Operations, Report to the Ranking 
Member, Committee on Agriculture, Nutrition and Forestry, U.S. 
Senate. GAO-03-285. Washington, DC)
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    b. Nutrient Management Plans. The environmental organizations 
argued that the 2003 CAFO rule was unlawful because: (1) The rule 
empowered permitting authorities to issue permits without any 
meaningful review of the CAFO's NMP, (2) the rule failed to require 
that the terms of the NMP be included in the NPDES permit, and (3) the 
permitting scheme established by the rule violated the Clean Water 
Act's public participation requirements. The court agreed with the 
environmental petitioners on these three issues.
    The court relied on provisions of the Act that authorize point 
source discharges only where NPDES permits ``ensure that every 
discharge of pollutants will comply with all applicable effluent 
limitations and standards,'' citing CWA sections 402(a)(1), (a)(2), and 
(b). Because the 2003 CAFO rule allowed CAFOs to write their own NMPs 
and because those plans were not required to be reviewed by the 
permitting agency or made available to the public for comment before 
the permit was issued, the court found that the rule did not ensure 
that each Large CAFO will develop a satisfactory plan. The court also 
found that the terms of the NMPs themselves are ``effluent 
limitations'' as that term is defined in the Act and therefore must be 
included in the permit under CWA sections 301 and 402. In addition, the 
court found that by not making the NMPs part of the permit and 
available to the public for review, the 2003 CAFO rule violated public 
participation requirements in sections 101(e) and 402 of the Act.
3. Issues Remanded by the Court
    The court also remanded other aspects of the CAFO rule to EPA ``for 
further clarification and analysis.'' EPA is not proposing to revise 
any of these provisions in today's proposal and is not soliciting 
comment on them. As previously noted, the agency plans to address these 
issues in its forthcoming proposed rule. They are as follows:
    a. Water Quality-Based Effluent Limits. The court agreed with EPA 
that agricultural storm water is excluded from the meaning of the term 
``point source'' and therefore is not subject to water quality-based 
effluent limitations in permits. However, the court directed EPA to 
``clarify the statutory and evidentiary basis for failing to promulgate 
water quality-based effluent limitations for discharges other than 
agricultural storm water discharges as that term is defined in 40 CFR 
122.23(e),'' and to ``clarify whether States may develop water quality-
based effluent limitations on their own.''
    b. New Source Performance Standards--100-Year Storm. Standard. The 
2003 CAFO rule set the new source performance standards (NSPS) for 
swine, poultry, and veal CAFOs at a level of zero discharge. A CAFO in 
these categories could fulfill this requirement by showing that either 
(1) Its production area was designed to contain all manure, litter, 
process wastewater, and precipitation from the 100-year, 24-hour storm, 
or (2) it would comply with ``voluntary superior performance 
standards'' based on innovative technologies, under which a discharge 
from the production area would be allowed if it was accompanied by an 
equivalent or greater reduction in the quantity of pollutants released 
to other media (e.g., air emissions). The court found that EPA had not 
justified in the record nor provided adequate public participation with 
respect to either of these provisions. As a result, the court remanded 
these provisions to EPA to clarify, via a process that adequately

[[Page 75775]]

involves the public, the statutory and evidentiary basis for their 
allowance.
    c. BCT Effluent Guidelines for Pathogens. The court held that the 
2003 CAFO rule violated the CWA because EPA had not made an affirmative 
finding that the BCT-based ELGs `` i.e., the ``best conventional 
technology'' guidelines for conventional pollutants such as fecal 
coliform `` do in fact represent BCT technology. The court remanded 
this issue to EPA to make such a finding based on the best available 
control technology economically achievable (BAT)/best practicable 
control technology currently available (BPT) technologies EPA studied 
or to establish specific BCT limitations for pathogens based on some 
other technology.

D. What Requirements Still Apply to CAFOs?

    The Waterkeeper decision either upheld or did not address most 
provisions of the 2003 CAFO rule. This section describes certain key 
portions of the rule that were not challenged in Waterkeeper. EPA is 
not proposing to revise any of these provisions and is not soliciting 
comment on them.
    The definitions provided in 40 CFR 122.23(b) of the 2003 CAFO rule 
remain in effect and are unchanged. First, an operation must be defined 
as an animal feeding operation (AFO) before it can be defined as a 
concentrated animal feeding operation (CAFO). 40 CFR 122.23. The term 
``animal feeding operation'' is defined by EPA regulation as a ``lot or 
facility'' where animals ``have been, are or will be stabled or 
confined and fed or maintained for a total of 45 days or more in 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.''
    Whether an AFO is a CAFO depends primarily on the number of animals 
confined, which is also unchanged. Large CAFOs are AFOs that contain 
more than the threshold number of animals detailed in 40 CFR 
122.23(b)(4). Medium CAFOs contain fewer animals than Large CAFOs and 
also: (1) Discharge pollutants into waters of the U.S. through a man-
made ditch, flushing system, or other similar man-made device; or (2) 
discharge pollutants directly into waters of the U.S. that originate 
outside of and pass over, across, or through the facility or otherwise 
come into direct contact with the confined animals. 40 CFR 
122.23(b)(6)(ii). The NPDES permitting authority also may, on a case-
by-case basis, designate any AFO, including Small CAFOs, as a CAFO 
after conducting an on-site inspection and finding that the facility 
``is a significant contributor of pollutants to waters of the United 
States.'' 40 CFR 122.23(c). The permitting authority may not exercise 
its authority to designate a facility as a Small CAFO unless pollutants 
are discharged into waters of the U.S. through a man-made ditch, 
flushing system, or other similar man-made device, or are discharged 
directly into waters of the U.S. which originate outside of the 
facility and pass over, across, or through the facility or otherwise 
come into direct contact with the animals confined in the operation.
    The 2003 CAFO rule also eliminated the provision in the original 
regulations stating that a facility was not defined as a CAFO if it 
discharged only in the event of a 25-year, 24-hour storm. The 
Waterkeeper decision did not affect this aspect of the 2003 rule, under 
which facilities no longer have an exemption from the definition of a 
CAFO if they discharge only in the event of a 25-year, 24-hour storm. 
Likewise, the Waterkeeper decision did not affect the 2003 rule's 
inclusion, for the first time, of certain animal sectors within the 
definition of a CAFO, such as chicken operations with dry systems for 
handling manure.
    Any discharge of manure, litter, or process wastewater from the 
production area of a CAFO to a water of the U.S. violates the CWA 
unless it is authorized by an NPDES permit. By eliminating the 25-year, 
24-hour storm exemption in the 2003 rule, any overflow (see definition 
in Sec.  412.2(g)), from any containment structure under any climatic 
condition, including chronic or catastrophic rainfall events, is an 
illegal discharge unless authorized by a permit. Additionally, any 
runoff of manure, litter, or process wastewater from a CAFO land 
application area to waters of the U.S. that is not agricultural storm 
water is illegal unless authorized by a permit. Examples include, but 
are not limited to, the discharge of litter, manure, or process 
wastewater directly to waters of the United States (e.g., application 
of liquid manure directly to surface water); dry-weather discharges due 
to the land application of manure, litter, or process wastewater; or 
the discharge of process wastewater or liquid manure from subsurface 
drains during dry weather.
    Nutrient management planning requirements for permitted CAFOs 
established in the 2003 CAFO rule also remain in place following the 
court's ruling. All permitted CAFOs must develop and implement an NMP 
that meets the requirements of 40 CFR 122.42(e) and 40 CFR 412.4, where 
applicable. The NMP identifies the necessary actions to ensure that 
runoff is eliminated or minimized through proper and effective manure, 
litter, and wastewater management, including compliance with the ELGs. 
NMPs for Large CAFOs must also contain additional provisions regarding 
the land application of manure. Permitted CAFOs must comply with all 
applicable recordkeeping and reporting requirements including those 
specified in 40 CFR 122.42(e).
    ELG requirements for existing Large CAFOs also are largely 
unchanged following the court's ruling. ELG requirements ensure the 
appropriate storage of manure, litter, and process wastewater and 
proper land application practices. They vary depending upon the types 
of animals confined: Subpart A for horses and sheep; Subpart B for 
ducks; Subpart C for dairy cattle, heifers, steers, and bulls; and 
Subpart D for swine, poultry, and veal calves (40 CFR part 412). 
Additionally, New Source requirements for beef and dairy operations 
remain unchanged (40 CFR 412.35).
    Permitted Small and Medium CAFOs are not subject to the ELGs 
specified in part 412. Rather, they must comply with all case-by-case 
technology-based requirements developed by the permitting authority 
(i.e., Best Professional Judgment (BPJ)).

E. Status of EPA's Response to the Waterkeeper Decision

    EPA is developing a rulemaking to respond to all of the issues in 
the 2003 CAFO rule vacated or remanded by the Second Circuit Court of 
Appeals. EPA plans to issue a proposed rulemaking for public comment in 
early 2006 and a final rulemaking as expeditiously as possible.

F. Compliance Dates in the 2003 CAFO Rule Affected by the Waterkeeper 
Decision

    The 2003 CAFO rule required all newly defined CAFOs, as of the date 
of the final rule, and some new dischargers to seek permit coverage by 
February 13, 2006, or April 13, 2006, respectively. The rule also 
required all CAFOs to develop and implement an NMP by December 31, 
2006. EPA is proposing to revise each of these dates in order: (1) To 
provide the Agency sufficient time to take final action on the 
regulatory revisions it plans to propose in the near future with 
respect to the Second Circuit's decision; and (2) To require NMPs to be 
submitted at the time of the permit application, consistent with the 
court's decision.

[[Page 75776]]

III. Today's Proposal

    Today's proposal is intended to extend certain dates for compliance 
specified in the 2003 CAFO rule. EPA proposes to extend the dates for 
newly defined CAFOs to seek NPDES permit coverage and the date by which 
all CAFOs must develop and implement NMPs. Because EPA is not likely to 
have completed the rulemaking responding to the Waterkeeper decision 
prior to the dates by which newly defined CAFOs must seek permit 
coverage, the Agency proposes in today's notice to revise these dates 
to a time that is subsequent to the forthcoming CAFO rule revision.
    Inasmuch as these proposed revisions precede the other regulatory 
revisions that EPA plans to propose to respond to the Waterkeeper 
decision, they are made strictly in the context of existing regulations 
promulgated in the 2003 CAFO rule. Today's proposal is simply a means 
of avoiding conflict with existing deadlines that precede EPA's 
upcoming revisions to the 2003 rules. Today's proposal does not, for 
example, address issues associated with the court's vacature of the 
requirement that all CAFOs seek coverage under an NPDES permit. That 
issue and other related issues will be addressed in the separate 
upcoming rulemaking. Therefore, EPA is today soliciting comment only on 
its proposal to revise specific dates in the 2003 rule, as described 
below.

A. Application Deadline for Newly Defined CAFOs

1. Proposal To Extend Deadline for Seeking Permit Coverage
    EPA is proposing to extend the date by which operations defined as 
CAFOs as of April 14, 2003, that were not defined as CAFOs prior to 
that date, must seek NPDES permit coverage, from February 13, 2006, to 
March 30, 2007. EPA is also proposing to amend the date by which 
operations that become defined as CAFOs after April 14, 2003, due to 
operational changes that would not have made them a CAFO prior to April 
14, 2003, and that are not new sources, must seek NPDES permit 
coverage, from April 13, 2006, to March 30, 2007.
    Today's proposal would not affect the requirements applicable to 
new source CAFOs that discharge or propose to discharge, even those in 
categories that were added to the definition of a CAFO in the 2003 CAFO 
rule. New source CAFOs that discharge or propose to discharge are 
required by the 2003 CAFO rule to seek NPDES permit coverage at least 
180 days prior to the time that they commence operating.
2. Background
    The 2003 CAFO rule added facilities that had not been previously 
defined as CAFOs (in the 1976 regulations) to the definition of a CAFO. 
Operations newly defined as CAFOs in the 2003 CAFO rule included veal 
operations, chicken and layer operations using other than liquid manure 
handling systems, and AFOs that were previously not defined as CAFOs 
because they discharged only in the event of a 25-year/24-hour storm 
(see 40 CFR 122.23(b)). Those CAFOs in these categories that were in 
existence on the date the 2003 CAFO rule took effect (April 14, 2003) 
represent the group of CAFOs currently subject to the February 13, 
2006, deadline (see 40 CFR 122.23(g)(2)). This group of CAFOs 
represented most of the newly defined CAFOs that were covered by the 
2003 rule. In addition, other existing facilities that might become 
CAFOs, as a result of the revised CAFO definitions in the 2003 CAFO 
rule, are so-called ``new dischargers'' that might at some date 
subsequent to the effective date of the 2003 CAFO rule become a CAFO 
due to changes in their operations, where those changes would not have 
made the operation a CAFO prior to April 14, 2003. This second group of 
facilities is currently required to seek permit coverage by April 13, 
2006, or 90 days after becoming defined as a CAFO (whichever date is 
later) (see 40 CFR 122.23(g)(3)(iii)).
    Both of these groups of CAFOs were allowed three years to seek 
permit coverage when EPA issued the 2003 CAFO rule. In the preamble to 
the 2003 CAFO rule, EPA reasoned that such an approach was consistent 
with Congressional intent with respect to newly established point 
sources, in the 1972 Clean Water Act, and with Agency practice in a 
similar prior rulemaking. Moreover, the Agency believed that the three 
year delay provided other advantages, including adequate time for 
States to provide permit coverage for CAFOs that were not previously 
required to be permitted and to revise state regulatory programs (see 
68 FR 7204).
3. Rationale
    These newly defined CAFOs are required by the current regulations 
to seek NPDES permit coverage by the dates established in the 2003 CAFO 
rule (either in February 2006 or April 2006). Both of these dates occur 
before the time when EPA will be issuing the upcoming rule revisions. 
EPA is proposing to extend those dates to allow EPA time to complete 
that rulemaking. EPA believes that, under these circumstances, there 
are compelling reasons to provide these CAFOs, who are required to 
apply for an NPDES permit for the first time under the 2003 rule, an 
extension of time so that they need not apply for permits until after 
EPA has completed the forthcoming revisions to the 2003 rule. This is 
appropriate, for example, because among other things the revisions will 
address the court's ruling on which CAFOs need to apply for permits at 
all and, where permits are issued, the need to include terms of the 
NMPs in the permit.
    Because today's proposed extension would add another year to the 
three years originally provided for these facilities to obtain NPDES 
permit coverage, EPA does not believe that a further extension beyond 
March 2007, is either necessary or appropriate at this time.

B. Deadline for Nutrient Management Plans

1. Proposal To Extend Deadline for Nutrient Management Plans
    EPA is proposing to extend the deadline by which permitted CAFOs 
are required to develop and implement NMPs, from December 31, 2006, to 
March 30, 2007. This proposal would revise all references to the date 
by which NMPs must be developed and implemented currently in the 2003 
CAFO rule. Thus the deadlines established in 40 CFR 122.21(i)(1)(x), 
122.42(e)(1), 412.31(b)(3), and 412.43(b)(2) are all proposed to be 
revised accordingly.
    Today's proposal would not affect CAFOs operating under existing 
permits so long as those permits remain in effect. If their existing 
permits require development and implementation of an NMP, currently 
permitted CAFOs must develop and implement their NMPs in accordance 
with the terms of their current permit.
2. Background
    The 2003 CAFO rule required all CAFOs to develop and implement a 
NMP by December 31, 2006, except that CAFOs seeking to obtain coverage 
under a permit subsequent to that date were required to have a NMP 
developed and implemented upon the date of permit coverage. The same 
dates were established for the implementation of the land application 
requirements in the Effluent Limitation Guidelines (ELGs), including 
the NMP requirements in the ELGs. As discussed in the preamble to the 
2003 CAFO rule, EPA believed that these dates were reasonable given 
that operations would have had three and a half years from the time the 
2003 rule

[[Page 75777]]

was issued to employ the necessary planning and construction to 
implement an NMP. For Large CAFOs that are new sources (i.e., those 
commencing construction after the effective date of the 2003 CAFO 
rule), the land application requirements at 40 CFR 412.4(c) applied 
immediately.
    EPA concluded that this timeframe also allowed States to update 
their NPDES programs and issue permits to reflect the NMP requirements 
of the 2003 CAFO rule and provided flexibility for permit authorities 
to establish permit schedules based on specific circumstances, 
including prioritization of NMP development and implementation based on 
site-specific water quality risks and the available infrastructure for 
development of NMPs.
3. Rationale
    The proposal to extend the date by which CAFOs must develop and 
implement their NMPs is consistent with today's proposal to extend the 
deadline for newly defined CAFOs to seek permit coverage, and would 
mean that CAFOs would be required to have developed and implemented an 
NMP as of the date they apply for an NPDES permit.
    As previously discussed, EPA plans to address in a separate 
proposal the Second Circuit's ruling with respect to including terms of 
the NMP in permits issued to CAFOs. For present purposes, EPA notes 
that making these two deadlines coincide would be consistent with the 
Court's direction to include terms of the NMP in permits issued to 
CAFOs.
    EPA does not believe that additional time beyond March 2007 is 
necessary at this time because the substantive NMP requirements have 
been in place since February 2003, and CAFOs have thus had adequate 
time to prepare NMPs. By extending the original deadline for NMP 
development by three additional months, today's proposal allows the 
CAFO operator time during the winter season to prepare the NMP 
paperwork and to begin implementing the practices in the NMP.

IV. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory Planning and Review

    Under Executive Order 12866, (58 FR 51735; October 4, 1993), the 
Agency must determine whether the regulatory action is ``significant'' 
and therefore subject to Office of Management and Budget (OMB) review 
and the requirements of the Executive Order. The Order defines 
``significant regulatory action'' as one that is likely to result in a 
rule that may:
    1. Have an annual effect on the economy of $100 million or more or 
adversely affect in a material way the economy, a sector of the 
economy, productivity, competition, jobs, the environment, public 
health or safety, or State, local, or tribal governments or 
communities;
    2. Create a serious inconsistency or otherwise interfere with an 
action taken or planned by another agency;
    3. Materially alter the budgetary impact of entitlements, grants, 
user fees, or loan programs or the rights and obligations of recipients 
thereof; or
    4. Raise novel legal or policy issues arising out of legal 
mandates, the President's priorities, or the principles set forth in 
the Executive Order.
    It has been determined that this proposed rule is not a 
``significant regulatory action'' under the terms of Executive Order 
12866 and, therefore, is not subject to OMB review.

B. Paperwork Reduction Act

    This proposed action does not impose any new information collection 
burden. As discussed above, the purpose of today's proposed rule is 
solely to address timing issues associated with the Agency's response 
to the Waterkeeper court ruling based on litigation ensuing from the 
2003 CAFO rule. However, the Office of Management and Budget (OMB) has 
previously approved the information collection requirements contained 
in the existing regulations at 40 CFR parts 9, 122, 123, and 412 under 
the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. 
and has assigned OMB control number 2040-0250. The EPA ICR number for 
the original set of regulations is 1989.02. A copy of the OMB approved 
Information Collection Request (ICR) may be obtained from Susan Auby, 
Collection Strategies Division; U.S. Environmental Protection Agency 
(2822T); 1200 Pennsylvania Ave., NW., Washington, DC 20460 or by 
calling (202) 566-1672.
    Burden means the total time, effort, or financial resources 
expended by persons to generate, maintain, retain, or disclose or 
provide information to or for a Federal agency. This includes the time 
needed to review instructions; develop, acquire, install, and utilize 
technology and systems for the purposes of collecting, validating, and 
verifying information, processing and maintaining information, and 
disclosing and providing information; adjust the existing ways to 
comply with any previously applicable instructions and requirements; 
train personnel to be able to respond to a collection of information; 
search data sources; complete and review the collection of information; 
and transmit or otherwise disclose the information.
    An agency may not conduct or sponsor, and a person is not required 
to respond to, a collection of information unless it displays a 
currently valid OMB control number. The OMB control numbers for EPA's 
regulations in 40 CFR are listed in 40 CFR part 9.

C. Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA) generally requires an agency 
to prepare a regulatory flexibility analysis of any rule subject to 
notice and comment on rulemaking requirements under the Administrative 
Procedure Act or any other statute unless the agency certifies that the 
rule will not have a significant economic impact on a substantial 
number of small entities. Small entities include small businesses, 
small organizations, and small governmental jurisdictions.
    For purposes of assessing the impacts of today's proposed rule on 
small entities, small entity is defined as: (1) A small business based 
on Small Business Administration (SBA) size standards; (2) a small 
governmental jurisdiction that is a government of a city, county, town, 
school district or special district with a population of less than 
50,000; and (3) a small organization that is any not-for-profit 
enterprise which is independently owned and operated and is not 
dominant in its field.
    After considering the economic impacts of today's proposed rule on 
small entities, I certify that this action will not have a significant 
economic impact on a substantial number of small entities. In 
determining whether a rule has a significant economic impact on a 
substantial number of small entities, the impact of concern is any 
significant adverse economic impact on small entities, since the 
primary purpose of the regulatory flexibility analyses is to identify 
and address regulatory alternatives ``which minimize any significant 
economic impact of the rule on small entities.'' 5 U.S.C. 603 and 604. 
Thus, an agency may certify that a rule will not have a significant 
economic impact on a substantial number of small entities if the rule 
relieves regulatory burden, or otherwise has a positive economic effect 
on all of the small entities subject to the rule.
    The effect of the proposal, if implemented is solely to extend 
certain compliance deadlines related to NPDES CAFO permitting. EPA 
believes that this will have the effect of relieving the regulatory 
burden for affected CAFOs.

[[Page 75778]]

We continue to be interested in the potential impacts of the proposed 
rule on small entities and welcome comments on issues related to such 
impacts.

D. Unfunded Mandates Reform Act

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public 
Law 104-4, establishes requirements for Federal agencies to assess the 
effects of their regulatory actions on State, local, and tribal 
governments and the private sector. Under section 202 of the UMRA, EPA 
generally must prepare a written statement, including a cost-benefit 
analysis, for proposed and final rules with ``Federal mandates'' that 
may result in expenditures to State, local, and tribal governments, in 
the aggregate, or to the private sector, of $100 million or more in any 
one year. Before promulgating an EPA rule for which a written statement 
is needed, section 205 of UMRA generally requires EPA to identify and 
consider a reasonable number of regulatory alternatives and to adopt 
the least costly, most cost-effective, or least burdensome alternative 
that achieves the objectives of the rule. The provisions of section 205 
do not apply when they are inconsistent with applicable law. Moreover, 
section 205 allows EPA to adopt an alternative other than the least 
costly, most cost-effective or least burdensome alternative if the 
Administrator publishes with the final rule an explanation why that 
alternative was not adopted. Before EPA establishes any regulatory 
requirements that may significantly or uniquely affect small 
governments, including tribal governments, it must have developed under 
section 203 of the UMRA a small government agency plan. The plan must 
provide for notifying potentially affected small governments, enabling 
officials of affected small governments to have meaningful and timely 
input in the development of EPA regulatory proposals with significant 
Federal intergovernmental mandates, and informing, educating, and 
advising small governments on compliance with the regulatory 
requirements.
    EPA has determined that this proposed rule would not contain a 
Federal mandate that may result in expenditures of $100 million or more 
for State, local, and tribal governments, in the aggregate, or the 
private sector in any one year. As discussed above, the purpose of 
today's proposed rule is solely to address timing issues associated 
with the Agency's response to the Waterkeeper court ruling based on 
litigation ensuing from the 2003 CAFO rule.

E. Executive Order 13132: Federalism

    Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August 
10, 1999), requires EPA to develop an accountable process to ensure 
``meaningful and timely input by State and local officials in the 
development of regulatory policies that have federalism implications.'' 
``Policies that have federalism implications'' is defined in the 
Executive Order to include regulations that have ``substantial direct 
effects on the States, on the relationship between the National 
Government and the States, or on the distribution of power and 
responsibilities among the various levels of government.''
    Under section 6(b) of Executive Order 13132, EPA may not issue a 
regulation that has federalism implications, that imposes substantial 
direct compliance costs, and that is not required by statute, unless 
the Federal Government provides the funds necessary to pay the direct 
compliance costs incurred by State and local governments, or EPA 
consults with State and local officials early in the process of 
developing the proposed regulation. Under section 6(c) of Executive 
Order 13132, EPA may not issue a regulation that has federalism 
implications and that preempts State law, unless the Agency consults 
with State and local officials early in the process of developing the 
proposed regulation.
    EPA has concluded that this proposed rule does not have federalism 
implications. It will not have substantial direct effects on the 
states, on the relationship between the National Government and the 
states, or on the distribution of power and responsibilities among the 
various levels of government, as specified in Executive Order 13132. 
EPA does not consider an annual impact of $2 million on States to be a 
substantial effect. In addition, EPA does not expect this rule to have 
any impact on local governments.
    Further, the revised regulations would not alter the basic State-
Federal scheme established in the Clean Water Act under which EPA 
authorizes States to carry out the NPDES permitting program. EPA 
expects the revised regulations to have little effect on the 
relationship between, or the distribution of power and responsibilities 
among, the Federal and State governments. Thus, Executive Order 13132 
does not apply to this rule.
    In the spirit of Executive Order 13132, and consistent with EPA 
policy to promote communications between EPA and State and local 
governments, EPA specifically solicits comment on this proposed rule 
from State and local officials.

F. Executive Order 13175: Consultation and Coordination With Indian 
Tribal Governments

    Executive Order 13175, entitled, ``Consultation and Coordination 
with Indian Tribal Governments'' (65 FR 67249; November 9, 2000), 
requires EPA to develop an accountable process to ensure ``meaningful 
and timely input by tribal officials in the development of regulatory 
policies that have tribal implications.''
    This proposed rule does not have tribal implications. It will not 
have substantial direct effects on tribal governments, on the 
relationship between the Federal Government and Indian tribes, or on 
the distribution of power and responsibilities between the Federal 
Government and Indian tribes, as specified in Executive Order 13175. 
Thus, Executive Order 13175 does not apply to this rule.
    In the spirit of Executive Order 13175, and consistent with EPA 
policy to promote communications between EPA and tribal governments, 
EPA specifically solicits additional comment on this proposed rule from 
tribal officials.

G. Executive Order 13045: Protection of Children From Environmental 
Health and Safety Risks

    Executive Order 13045: ``Protection of Children from Environmental 
Health Risks and Safety Risks'' (62 FR 19885, April 23, 1997) applies 
to any rule that: (1) Is determined to be ``economically significant'' 
as defined under E.O. 12866, and (2) concerns an environmental health 
or safety risk that EPA has reason to believe may have a 
disproportionate effect on children. If the regulatory action meets 
both criteria, the Agency must evaluate the environmental health or 
safety effects of the planned rule on children, and explain why the 
planned regulation is preferable to other potentially effective and 
reasonably feasible alternatives considered by the Agency.
    This regulation is not subject to Executive Order 13045 because it 
is not economically significant as defined under E.O. 12866, and 
because the Agency does not have reason to believe the environmental 
health and safety risks addressed by this action present a 
disproportionate risk to children. The benefits analysis performed for 
the 2003 CAFO rule determined that the rule would result in certain 
significant benefits to children's health. (Please refer to the 
Benefits Analysis in the record for the 2003 CAFO final rule.)

[[Page 75779]]

Since today's action would not affect the environmental benefits of the 
rule, these benefits are retained.

H. Executive Order 13211: Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use

    This proposed rule would not be subject to Executive Order 13211, 
``Actions Concerning Regulations That Significantly Affect Energy 
Supply, Distribution, or Use'' (66 FR 28355 (May 22, 2001)) because it 
is not a significant regulatory action under Executive Order 12866.

I. National Technology Transfer and Advancement Act

    Section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (``NTTAA''), Public Law 104-113, section 12(d) (15 U.S.C. 
272 note) directs EPA to use voluntary consensus standards in its 
regulatory activities unless to do so would be inconsistent with 
applicable law or otherwise impractical. Voluntary consensus standards 
are technical standards (e.g., materials specifications, test methods, 
sampling procedures, and business practices) that are developed or 
adopted by voluntary consensus standard bodies. The NTTAA directs EPA 
to provide Congress, through OMB, explanations when the Agency decides 
not to use available and applicable voluntary consensus standards.
    This proposed rulemaking does not involve technical standards. 
Therefore, EPA is not considering the use of any voluntary consensus 
standards.

List of Subjects

40 CFR Part 122

    Environmental protection, Administrative practice and procedure, 
Confidential business information, Hazardous substances, Reporting and 
recordkeeping requirements, Water pollution control.

40 CFR Part 412

    Environmental protection, Feedlots, Livestock, Waste treatment and 
disposal, Water pollution control.

    Dated: December 15, 2005.
Stephen L. Johnson,
Administrator.

    For the reasons stated in the preamble, the Environmental 
Protection Agency proposes to amend 40 CFR parts 122 and 412 as 
follows:

PART 122--EPA ADMINISTERED PERMIT PROGRAMS: THE NATIONAL POLLUTANT 
DISCHARGE ELIMINATION SYSTEM

    1. The authority citation for part 122 continues to read as 
follows:

    Authority: The Clean Water Act, 33 U.S.C. 1251 et seq.

    2. Amend Sec.  122.21 by revising paragraph (i)(1)(x) to read as 
follows:


Sec.  122.21  Application for a permit (applicable to State programs, 
see Sec.  123.25).

* * * * *
    (i) * * *
    (1) * * *
    (x) For CAFOs that must seek coverage under a permit after March 
30, 2007, certification that a nutrient management plan has been 
completed and will be implemented upon the date of permit coverage.
* * * * *
    3. Sections 122.23 (g)(2) and (g)(3)(iii) are revised to read as 
follows:


Sec.  122.23  Concentrated animal feeding operations (applicable to 
State NPDES programs, see Sec.  123.25).

* * * * *
    (g) * * *
    (1) * * *
    (2) Operations defined as CAFOs as of April 14, 2003, who were not 
defined as CAFOs prior to that date. For all CAFOs, the owner or 
operator of the CAFO must seek to obtain coverage under an NPDES permit 
by a date specified by the Director, but no later than March 30, 2007.
    (3) * * *
    (iii) If an operational change that makes the operation a CAFO 
would not have made it a CAFO prior to April 14, 2003, the operation 
has until March 30, 2007, or 90 days after becoming defined as a CAFO, 
whichever is later.
* * * * *
    4. Section 122.42 is amended by revising the third sentence in 
paragraph (e)(1) introductory text to read as follows:


Sec.  122.42  Additional conditions applicable to specified categories 
of NPDES permits (applicable to State NPDES programs, see Sec.  
123.25).

* * * * *
    (e) * * *
    (1) * * * Permitted CAFOs must have their nutrient management plans 
developed and implemented by March 30, 2007. CAFOs that seek to obtain 
coverage under a permit after March 30, 2007 must have a nutrient 
management plan developed and implemented upon the date of permit 
coverage. * * *
* * * * *

PART 412--CONCENTRATED ANIMAL FEEDING OPERATIONS (CAFO) POINT 
SOURCE CATEGORY

    1. The authority citation for part 412 continues to read as 
follows:

    Authority: 33 U.S.C. 1311, 1314, 1316, 1317, 1318, 1342, 1361.

    2. Amend Sec.  412.31 by revising paragraph (b)(3) to read as 
follows:


Sec.  412.31  Effluent limitations attainable by the application of the 
best practicable control technology currently available (BPT).

* * * * *
    (b) * * *
    (3) The CAFO shall attain the limitations and requirements of this 
paragraph by March 30, 2007.
    3. Amend Sec.  412.43 by revising paragraph (b)(2) to read as 
follows:


Sec.  412.43  Effluent limitations attainable by the application of the 
best practicable control technology currently available (BPT).

* * * * *
    (b) * * *
    (2) The CAFO shall attain the limitations and requirements of this 
paragraph by March 30, 2007.

[FR Doc. 05-24303 Filed 12-20-05; 8:45 am]

BILLING CODE 6560-50-P
