Waterkeeper Alliance, Inc. v. EPA
, 399 F.3d 486
(2nd Cir. 2005), vacated and remanded portions of the federal CAFO rules to
the United States Environmental Protection Agency (EPA). EPA has not indicated
how it will address the
Waterkeeper
decision
in the National Pollutant Discharge Elimination System (NPDES) rules, but
has extended the deadline by which newly defined CAFOs must obtain permit
coverage until July 31, 2007. In Texas, dry litter poultry CAFOs were the
only newly defined CAFOs affected by this change to the federal requirements.
In order to maintain consistency with federal regulations, TCEQ extended the
deadline for existing dry litter poultry CAFOs to obtain permit coverage to
July 31, 2007. Currently, TCEQ rules require new source dry litter poultry
CAFOs and expanding dry litter poultry AFOs to obtain a permit prior to construction,
while allowing existing dry litter poultry CAFOs to operate without a permit
until July 31, 2007. TCEQ is proposing that all dry litter poultry CAFOs meet
the same permitting deadline.
SECTION DISCUSSION
Section 321.33, Applicability and Required Authorizations, the proposed
change to subsection (b)(3) adds the following sentence "This paragraph does
not apply to a poultry operation that does not use a liquid waste handling
system, which is commonly referred to as a dry litter poultry operation."
The proposed change to subsection (d) adds the following sentence: "This subsection
does not apply to dry litter poultry operations until the date specified in
subsection (f) of this section." The proposed change to subsection (f) deletes
the word "existing" so that subsection (f) now reads "Dry litter poultry operations.
Dry litter poultry operations must obtain authorization by an individual water
quality permit or a CAFO general permit in accordance with subsection (a),
(b), or (c) of this section not later than July 31, 2007."
FISCAL NOTE: COSTS TO STATE AND LOCAL GOVERNMENT
Walter Perry, Analyst, Strategic Planning and Assessment Section, determined
that, for the first five-year period the proposed amendment is in effect,
no significant fiscal implications are anticipated for the agency or other
units of state or local government. The proposed rule implements SB 1707,
79th Legislature, 2005, which changed the permitting requirements for certain
CAFOs located in the protection zone of a sole-source surface drinking water
supply. The proposed rulemaking removes the requirement for poultry CAFOs
that do not use a liquid waste handling system (dry litter poultry) located
in the protection zone of a sole-source surface drinking water supply to obtain
an individual permit. This change allows these facilities to apply for coverage
under a general permit. There are estimated to be less than 50 existing regulated
entities that would be affected by implementing SB 1707. The proposed rule
would also allow new source dry litter poultry CAFOs and expanding dry litter
poultry AFOs to meet the same July 31, 2007, permitting deadline as existing
facilities. Current rules require new source dry litter poultry CAFOs and
expanding dry litter poultry AFOs to obtain permit coverage prior to construction.
It is not known how many new or expanding facilities may be affected by extending
this deadline.
In general, no significant fiscal implications are anticipated for the
agency to implement the proposed rule, though permit processing times may
be shortened, and because the general permit does not allow for a contested
case hearing, any future potential contested case hearings costs may be avoided.
Any decrease in fee revenue due to the proposed change from an individual
permit to a general permit is not expected to be significant. The renewal
fee for an individual permit is $315 and $100 for a general permit. There
are estimated to be less than 50 existing CAFOs affected by implementing SB
1707. If all 50 CAFOs were affected, the agency would see a revenue decrease
of $10,750 over the five-year period. Other units of state and local government
are not expected to be affected by the proposed rule as they do not own or
operate CAFOs.
PUBLIC BENEFITS AND COSTS
Mr. Perry also determined that for each year of the first five years the
proposed amendment is in effect, the public benefit anticipated from the changes
seen in the proposed rule will be compliance with state and federal law and
the continued protection of public health and the environment.
Cost savings, which could be significant, are anticipated for businesses
or individuals who own or operate dry litter poultry CAFOs located in the
protection zone of a sole-source surface drinking water supply. The proposed
rulemaking to implement SB 1707 is anticipated to affect approximately 50
existing facilities.
Under the current rules, the renewal cost for an individual permit is $315
and $100 for authorization under the general permit. CAFO permits are renewed
every five years. Affected dry litter poultry CAFO owners would realize a
cost savings of $215 for a renewal authorization under the general permit.
However, costs for those seeking permit applications would still include consultant
and/or engineering fees for permit application preparation; publication fees
for public notices and potential public meeting notices permit fees; and costs
associated with facility design and construction to meet agency and statutory
requirements, just as with an individual permit. The most significant difference
will be that applicants will no longer have the possible costs of a contested
case hearing that could range anywhere from $5,000 to $100,000 for attorney
fees. The amount of fees would vary, depending on the complexity of the issues
involved, and the length of the hearing. CAFO owners and operators may also
benefit from the reduced time necessary to process a new or significant expansion
authorization under the general permit rather than an individual permit. New
source dry litter poultry CAFOs and expanding dry litter poultry AFOs will
benefit from the extension of the July 31, 2007, deadline in that they may
be able to delay any associated permit costs. It is not known how many new
or expanding facilities will be affected by the proposed rules.
SMALL BUSINESS AND MICRO-BUSINESS ASSESSMENT
No adverse fiscal implications are anticipated for small or micro-businesses
as a result of the proposed rulemaking. The proposed rulemaking would result
in no additional costs for small and micro-businesses. Small and micro-businesses
would experience the same potential cost savings as larger businesses. It
is believed that the majority of businesses who own and operate CAFOs, and
would be affected by the rulemaking, are small and micro-businesses.
LOCAL EMPLOYMENT IMPACT STATEMENT
The commission reviewed this proposed rulemaking and determined that a
local employment impact statement is not required because the proposed rule
does not adversely affect a local economy in a material way for the first
five years that the proposed rule is in effect.
DRAFT REGULATORY IMPACT ANALYSIS DETERMINATION
The commission reviewed the proposed rulemaking in light of the regulatory
analysis requirement of Texas Government Code, §2001.0225, and made a
determination that the rulemaking is not subject to §2001.0225. The proposed
amendment does not meet the definition of a "major environmental rule" as
defined in §2001.0225, and the rulemaking is not subject to the regulatory
analysis provisions of §2001.0225(b) because it does not meet any of
the four applicability requirements listed in §2001.0225(a). Section
2001.0225(a) applies to a rule adopted by an agency, the result of which is
to: 1) exceed a standard set by federal law, unless the rule is specifically
required by state law; 2) exceed an express requirement of state law, unless
the rule is specifically required by federal law; 3) exceed a requirement
of a delegation agreement or contract between the state and an agency or representative
of the federal government to implement a state and federal program; or 4)
adopt a rule solely under the general powers of the agency instead of under
a specific state law.
"Major environmental rule" means a rule the specific intent of which is
to protect the environment or reduce risks to human health from environmental
exposure and that may adversely affect in a material way the economy, a sector
of the economy, productivity, competition, jobs, the environment, or the public
health and safety of the state or a sector of the state. The proposed amendment,
which is intended to protect the environment and reduce risks to human health,
will not have a material adverse effect on the economy or sector of the economy,
productivity, competition, jobs, the environment, or the public health and
safety of the state or a sector of the state because the change incorporates
new state requirements. The rulemaking does not exceed a standard set by federal
law, exceed an express requirement of state law, exceed a requirement of a
delegation agreement, or adopt a rule solely under the general powers of the
agency. The commission invites public comment on the draft regulatory impact
analysis determination.
TAKINGS IMPACT ASSESSMENT
The commission performed a preliminary assessment of the rulemaking in
accordance with Texas Government Code, §2007.043. The rulemaking would
implement SB 1707 and allow dry litter poultry facilities located in the protection
zone of a sole-source surface drinking water supply the ability to obtain
coverage under either an individual or general permit. Additionally, the rulemaking
would make all dry litter poultry CAFOs meet the same permitting deadline.
The rule substantially advances these stated purposes. The commission's assessment
indicates that Texas Government Code, Chapter 2007 applies to the implementation
of SB 1707 and the addition of the permitting deadline because this rulemaking
is a governmental action that results in the adoption of a rule or regulatory
requirement. However, this governmental action does not result in a burden
on private real property. If adopted, this rulemaking allows certain dry litter
poultry facilities to obtain coverage under either an individual or general
permit. Also, if adopted, this rulemaking would change the dates when all
dry litter poultry CAFOs are required to obtain authorization. Therefore,
the adoption of this change does not result in a constitutional or statutory
taking of private real property and no real property interests are burdened
or impacted by this rulemaking.
CONSISTENCY WITH THE COASTAL MANAGEMENT PROGRAM
The commission reviewed the proposed rulemaking and found that it is subject
to the Texas Coastal Management Program (CMP) in accordance with the Coastal
Coordination Act, Texas Natural Resources Code, §§33.201
et seq
., and therefore must be consistent with all applicable CMP goals
and policies. The commission conducted a consistency determination for the
proposed rule in accordance with Coastal Coordination Act Implementation Rules,
31 TAC §505.22, and found the proposed rulemaking is consistent with
the applicable CMP goals and policies.
The commission reviewed this rulemaking for consistency with the CMP goals
and policies in accordance with the regulations of the Coastal Coordination
Council and determined that the amendments are consistent with CMP goals and
policies because the rulemaking is an administrative rule that changes the
authorization type available to dry litter poultry CAFOs located in the protection
zone of a sole-source surface drinking water supply; makes permitting requirements
consistent for all dry litter poultry CAFOs; will not have direct or significant
adverse effect on any coastal natural resource areas; will not have a substantive
effect on commission actions subject to the CMP; and promulgation and enforcement
of the amendment will not violate (exceed) any standards identified in the
applicable CMP goals and policies.
ANNOUNCEMENT OF HEARING
The commission will hold a public hearing on this proposal in Austin on
June 13, 2006, at 2:00 p.m. in Building F, Room 2210 at the Texas Commission
on Environmental Quality complex located at 12100 Park 35 Circle. The hearing
is structured for the receipt of oral or written comments by interested persons.
Individuals may present oral statements when called upon in order of registration.
Open discussion will not be permitted during the hearing; however, commission
staff members will be available to discuss the proposal 30 minutes before
the hearing.
Persons with disabilities who have special communication or other accommodation
needs who are planning to attend the hearing should contact Joyce Spencer,
Office of Legal Services, at (512) 239-5017. Requests should be made as far
in advance as possible.
SUBMITTAL OF COMMENTS
Comments may be submitted to Joyce Spencer, Texas Register Team, Office
of Legal Services, Texas Commission on Environmental Quality, MC 205, P.O.
Box 13087, Austin, Texas 78711-3087, or faxed to (512) 239-4808. All comments
should reference Rule Project Number 2005-062-321-PR. Comments must be received
by 5:00 p.m., June 19, 2006. Copies of the proposed rule can be obtained from
the commission's Web site at
http://www.tceq.state.tx.us/nav/rules/propose_adopt.html
. For further information, please contact Beth Helms, Water Quality
Division, at (512) 239-2526.
STATUTORY AUTHORITY
The amendment is proposed under TWC, §5.012, which provides that the
commission is the agency responsible for implementing the constitution and
laws of the state relating to the conservation of natural resources and protection
of the environment; TWC, §5.103 and §5.105, which establish the
commission's general authority to adopt rules; TWC, §26.027, regarding
TCEQ's authority to issue permits for the discharge of waste into or adjacent
to water in the state; and TWC, §26.121, which provides that no person
may discharge sewage, municipal waste, recreational waste, agricultural waste,
industrial waste, or other waste into or adjacent to any water in the state
except as authorized by the commission.
This amendment is also proposed under TWC, §26.011, regarding the
commission's authority over water quality in the state; and TWC, §26.0286,
which requires the commission to process an application for authorization
to construct or operate a CAFO, except dry litter poultry CAFOs, located in
the protection zone of a sole-source surface drinking water supply as an application
for an individual permit. Finally, this amendment is also proposed under Texas
Government Code, §2001.006, which provides state agencies the authority
to adopt rules or take other administrative action that the agency deems necessary
to implement legislation.
The proposed amendment implements SB 1707, 79th Legislature, 2005, which
changed the permitting requirements under TWC, §26.0286, for dry litter
poultry CAFOs located in the protection zone of a sole-source surface drinking
water supply.
§321.33.Applicability and Required Authorizations.
(a)
(No change.)
(b)
Individual permit required. A discharge from the following
CAFOs may be authorized only under an individual water quality permit in accordance
with §321.34 of this title (relating to Permit Applications). Except
as provided by subsections (e) and (f) of this section, any operator who is
required to obtain an individual water quality permit under this subsection
may not commence physical construction and/or operation of any new control
facilities until an individual water quality permit is issued for that CAFO,
or unless otherwise authorized by the commission in accordance with Texas
Water Code (TWC),
§26.027(c)
[
§26.027(c))
].
(1) - (2)
(No change.)
(3)
Any CAFO where, on the date the executive director determines
that the application is administratively complete, any part of the production
area of the CAFO is located or proposed to be located within the protection
zone of a sole-source surface drinking water supply, in accordance with TWC, §26.0286.
This paragraph does not apply to a poultry operation that does not use a liquid
waste handling system, which is commonly referred to as a dry litter poultry
operation.
(4) - (5)
(No change.)
(c)
(No change.)
(d)
New or expanding AFO. After the effective date of this
subchapter, no person may commence construction or operation of a new CAFO
or alter any existing AFO such that it becomes defined as a CAFO without prior
authorization through an individual water quality permit or a CAFO general
permit, unless otherwise authorized by the commission under TWC, §26.027(c).
This subsection does not apply to dry litter poultry operations until the
date specified in subsection (f) of this section.
(e)
(No change.)
(f)
Dry litter poultry operations.
Dry
[
Existing
dry
] litter poultry
CAFOs
[
operations
] must obtain
authorization by an individual water quality permit or a CAFO general permit
in accordance with subsection (a), (b), or (c) of this section not later than
July 31, 2007.
Prior to July 31, 2007, a dry litter poultry CAFO is authorized
to be constructed and operated if the operation has a certified water quality
management plan approved by the Texas State Soil and Water Conservation Board.
(g) - (o)
(No change.)
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of
the Secretary of State on May 3, 2006.
TRD-200602479
Stephanie Bergeron Perdue
Acting Deputy Director, Office of Legal Services
Texas Commission on Environmental Quality
Earliest possible date of adoption: June 18, 2006
For further information, please call: (512) 239-5017