R317-8-10. Animal Feeding Operations (AFOs) and Concentrated Animal Feeding Operations (CAFOs)

10.1 Applicability of R317-8, Rule Compatibility, and Federal Rule Incorporation.

(1) This rule R317-8-10, including the federal regulations incorporated by reference in R317-8-10.1(3), shall be applicable to animal feeding operations and concentrated animal feeding operations in Utah as provided in the rule.

(2) Where any requirements, definitions, or conditions in R317-8-10 conflict with the requirements, definitions, or conditions pertaining to animal feeding operations or concentrated animal feeding operations in other parts of R317-8, the requirements, definitions, and conditions in this R317-8-10 shall govern.

(3) Included in the federal regulations incorporated by reference under R317-8-1.10 are the following federal regulations governing concentrated animal feeding operations, effective as of July 30, 2012, which have been incorporated by reference as specified in R317-8-1.10:

(a) 40 CFR 122.21(i);

(b) 40 CFR 122.23(a), (b)(3), (b)(5), (b)(7), (b)(8), (c), (d)(2), (e) and (h);

(c) 40 CFR 122.28(b)(2);

(d) 40 CFR 122.42(e);

(e) 40 CFR 122.62(a)(17);

(f) 40 CFR 122.63(h);

(g) 40 CFR Part 412.

(4) The following substitutions apply to the federal regulations incorporated by reference:

(a) Substitute "Director of the Division of Water Quality" for all federal regulation references to "Director".

(b) Substitute "UPDES" for all federal regulation references to "NPDES".

(c) Substitute the term "surface waters of the state" for all federal regulation references to "surface water", "waters of the United States", "navigable waters", or "U.S. waters."

10.2 Definitions.

"Animal Feeding Operation" (AFO) means a lot or facility (other than aquatic animal production facility) where the following conditions are met:

(a) animals have been, are, or will be stabled, housed, or confined and fed or maintained for a total of forty-five (45) days or more in any 12-month period;

(b) crops, vegetation, forage growth, or post harvest residues are not sustained in the normal growing season over any portion of the lot or facility; and

(c) two or more AFOs under common ownership are considered to be a single AFO if they adjoin each other or if they use a common area or system for the storage or disposal of waste.

"Concentrated Animal Feeding Operation" (CAFO) means:

(a) an AFO that is a Large CAFO; or

(b) an AFO that is a Medium CAFO; or

(c) an AFO that is a Small AFO or Medium AFO that is a Designated CAFO.

"Approved Agriculture Environmental Stewardship Program" means a program approved by the Water Quality Board as meeting the substantive standards of this rule and the Utah Water Quality Act, Title 19, Chapter 5.

"Designated CAFO" means an AFO that is designated as a CAFO by the Director according to criteria in 40 CFR 122.23(c) and thereby required to obtain a UPDES permit.

"Discharge" has the same meaning as "Discharge of a Pollutant" in R317-8-1.5 except that, for purposes of this R317-8-10 only, "discharge" shall refer only to the addition of pollutants to surface waters of the state.

"Large CAFO" means an AFO that stables, houses, or confines the type and number of animals that fall within any of these ranges:

(a) Beef, calves, heifers, and/or veal 1,000 or more

(b) Cows (milking and dry) 700 or more

(c) Layers, broilers (wet system) 30,000 or more

(d) Other than layers (dry system) 125,000 or more

(e) Layers (dry system) 82,000 or more

(f) Turkeys 55,000 or more

(g) Swine (55 pounds or more) 2,500 or more

(h) Swine (less than 55 pounds) 10,000 or more

(i) Sheep 10,000 or more

(j) Horses 500 or more

(k) Ducks (dry system) 30,000 or more

(l) Ducks (wet system) 5,000 or more

"Large Weather Event" for purposes of 19-5-105.5(3)(b)(iii) means a single event or a series of precipitation events, including snow, received at an AFO (including a CAFO) during any consecutive thirty day period that:

(a) occurs in a manner that does not allow an AFO or CAFO to appropriately dewater waste storage, treatment or containment structures; and

(b) yields precipitation in an amount greater than the total of:

(i) the area's monthly average precipitation for the period of the precipitation event(s); and

(ii) (A) for a poultry, swine, or veal AFO or CAFO, a 100-year, 24-hour storm event for the area; or

(B) for all other AFOs or CAFOs, a 25-year, 24-hour storm event for the area.

"Medium AFO" means a lot or facility that is an AFO that stables, houses or confines the type and number of animals that fall within any of these ranges:

(a) Beef, calves, heifers, and/or veal 300-999

(b) Cows (milking and dry) 200-699

(c) Layers and/or broilers (wet system) 9,000-29,999

(d) Other than layers (dry system) 37,500-124,999

(e) Layers (dry system) 25,000-81,999

(f) Turkeys 16,500-54,999

(g) Swine (55 pounds or more) 750-2,499

(h) Swine (less than 55 pounds) 3,000-9,999

(i) Sheep 3,000-9,999

(j) Horses 150-499

(k) Ducks (dry system) 10,000-29,999

(l) Ducks (wet system) 1,500-4,999

"Medium CAFO" means an AFO that confines the number of animals to be classified as a Medium AFO, and where the conditions specified in 40 CFR 122.23(b)(6)(ii) are met.

"Reasonable Measures" for purposes of 19-5-105.5(3)(b)(iii) mean the measures described in R317-8-10.9.

"Small AFO" means a lot or facility that is an AFO that stables, houses, or confines the type and number of animals that fall within any of these ranges:

(a) Beef, calves, heifers, and/or veal 1-299

(b) Cows (milking and dry) 1-199

(c) Layers, broilers (wet system) 1-8,999

(d) Other than layers (dry system) 1-37,499

(e) Layers (dry system) 1-24,999

(f) Turkeys 1-16,499

(g) Swine (55 pounds or more) 1-749

(h) Swine (less than 55 pounds) 1-2,999

(i) Sheep 1-2,999

(j) Horses 1-149

(k) Ducks (dry system) 1-9,999

(l) Ducks (wet system) 1-1,499

"Small CAFO" means an AFO that confines the number of animals to be classified as a Small AFO, where the following conditions are met:

(a) (i) the Small AFO discharges through a man-made ditch, flushing system, or other similar man-made device; or

(ii) the Small AFO discharges into surface waters of the state which waters originate outside of and pass over, across, or through the facility or otherwise come into direct contact with the animals confined at the operation; and

(b) the Director has designated the Small AFO as a CAFO according to criteria in 40 CFR 122.23(c).

"Surface Waters of the State" for purposes under R317-8-10 means Waters of the State as defined in R317-8-1(60) that are not ground water, except ground water that has hydrologic connection to surface waters of the state.

"Technical Standards" means the standards that nutrient management plans must meet, as described in R317-8-10.6.

10.3 UPDES Permit Requirement and Prohibition on Discharge Without a Permit.

(1) The following animal feeding operations are required to apply for a UPDES permit:

(a) Large CAFOs that discharge;

(b) Medium CAFOs; and

(c) Designated CAFOs.

(2) CAFOs with land application discharges are subject to the requirements provided in 40 CFR 122.23(e) and 40 CFR 122.42(e).

(3) A Small AFO may only be designated as a CAFO if:

(i) Pollutants are discharged from the Small AFO into surface waters of the state through a man-made ditch, flushing system, or other similar man-made device; or

(ii) Pollutants from the Small AFO are discharged directly into surface waters of the state which waters 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.

(4) No AFO or CAFO shall discharge except as authorized under a current UPDES permit.

10.4 Timing of UPDES Permit Application.

(1) An animal feeding operation that has an operational change that results in a requirement to obtain a UPDES CAFO permit shall submit an application no later than 90 days after the time a facility has conditions that require CAFO permit coverage.

(2) No later than 180 days before the expiration of a permit, or as provided by the Director, a permitted CAFO must submit an application to renew its permit in accordance with 40 CFR 122.21(d) unless the CAFO will not discharge upon expiration of the permit.

(3) For facilities in operation prior to April 14, 2003 that have an operational change where the facility becomes a Large CAFO that discharges, or a Medium or Designated CAFO, must seek to obtain UPDES permit coverage no later than 90 days after the time a facility has conditions that require CAFO permit coverage.

(4) New source CAFOs that require CAFO permit coverage and CAFOs constructed after April 14, 2003 that require CAFO permit coverage must seek to obtain UPDES CAFO permit coverage no later than 180 days prior to the time a facility commences operation with the conditions that require CAFO permit coverage.

(5) A CAFO that is required to obtain an individual permit or that is a Designated CAFO, shall apply for a permit within 60 days of notification of permit requirement by the Director, unless otherwise determined by the Director.

10.5 UPDES CAFO Permit Application Requirements.

In order to apply for a UPDES CAFO permit, an AFO or CAFO shall submit to the Director an application containing the information specified in 40 CFR 122.21(i). Application forms may be obtained from the Division of Water Quality. If the applicant is seeking coverage under a general permit, it shall submit a notice of intent and nutrient management plan to the Director, along with any information required under the general permit. If the Director has not issued a general permit for which the AFO or CAFO is eligible, the owner or operator must submit an application, including a nutrient management plan, for an individual permit to the Director.

10.6 Technical Standards.

(1) The requirements of the Utah Natural Resources Conservation Service (Utah NRCS) Practice Standard 590, Nutrient Management, dated January 2013, are hereby incorporated by reference as the Technical Standards, for purposes of this rule and 40 CFR 412.4(c)(2). Implementation of these standards at a facility requires evaluation on a field-specific basis.

10.7 Nutrient Management Plans.

(1) An AFO or CAFO with a UPDES permit, and as provided in R317-8-10.9, shall have a facility-specific nutrient management plan (NMP). On a field-specific basis, NMPs for permitted facilities shall comply with the requirements and standards specified in:

(a) R317-8-10;

(b) Applicable federal regulations incorporated by reference in R317-8-1.10 and also specified in R317-8-10.1;

(c) The requirements of 40 CFR 122.42(e)(1)(i) through (viii) and the practices and protocols that are required to be identified in those provisions;

(d) Technical Standards in R317-8-10.6; and

(e) nutrient management plan requirements in the UPDES permit.

(2) An NMP for permitted facilities shall be approved by an NRCS certified planner.

10.8 Requirement to Comply with a Permit.

In addition to the requirements of this rule, a UPDES CAFO Permittee shall comply with all permit requirements.

10.9 Reasonable Measures for Large Weather Events.

(1) As provided in 19-5-105.5(3)(b)(iii), no penalty shall apply with respect to an agriculture discharge resulting from a large weather event if the agriculture producer has taken reasonable measures to prevent an agriculture discharge.

(2) An AFO or CAFO will be considered to have taken reasonable measures, for purposes of 19-5-105.5(3)(b)(iii), if it has obtained and is in compliance with a UPDES CAFO permit.

(3) A CAFO that is not required to obtain a UPDES permit and that has experienced an agriculture discharge from its land application areas resulting from a large weather event, will be considered to have taken reasonable measures if:

(a) It has obtained and is in compliance with a site-specific NMP that implements Technical Standards and the requirements of 40 CFR 122.42(e)(1)(vi) through (viii), and the practices and protocols identified under those provisions;

(b) It has kept records adequate to demonstrate that it has met the requirements in paragraph (3), and has provided copies of those records to the Director upon request; and

(c) It has provided one-time notification to the Division that it has implemented reasonable measures under this part 10.9.

(4) An AFO that is not a CAFO will be considered to have taken reasonable measures if it has obtained and is in compliance with a permit by rule. An AFO will be permitted by rule if:

(a) (i) It has obtained and is in compliance with a site-specific NMP that implements Technical Standards and the requirements of 40 CFR 122.42(e)(1)(i) through (viii), and the practices and protocols identified under those provisions; or

(ii) It has received and is in compliance with the requirements of a Certificate of Environmental Stewardship under an Approved Agriculture Environmental Stewardship Program; and

(b) It keeps records adequate to demonstrate that it has met the requirements in this paragraph (4) and has, upon request, made those records available for review by the Director or the Director's representative; and

(c) (i) For a facility permitted by rule under 10.9(4)(a)(i), the facility has provided to the Director a notice of intent to be covered by this permit by rule provision and has confirmed that it is meeting the requirements of paragraphs (4)(a) and (b); or

(ii) For a facility permitted by rule under 10.9(4)(a)(ii), the facility has provided to the Director a copy of the Certificate of Environmental Stewardship issued by the Utah Conservation Commission.