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Regulatory Impact Statement for 6 NYCRR Parts 360 & 750

1. 'Statutory Authority.' The Department's statutory authority to undertake revisions to Part 750 of Title 6 of the Codes, Rules and Regulations of the State of New York (6 NYCRR) is found in Environmental Conservation Law (ECL) Article 3, Title 3; Article 17, Titles 3, 5, 7, 8; Article 70, Title 1; and the Federal Water Pollution Control Act, 33 USC 1251, et seq.

Animal Feeding Operations (AFOs) are lots or facilities where the following conditions are met: 1) animals (other than aquatic 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 2) crops, vegetation, forage growth, or post-harvest residues are not sustained in the normal growing season over any portion of the lot or facility [40 CFR § 122.23 (b)]. Concentrated Animal Feeding Operations (CAFOs) constitute a relatively small number of AFOs that are regulated by 33 USC § 1251 et seq. [Federal Water Pollution Control Act, commonly referred to as the Clean Water Act (CWA)] and the ECL. Federal regulations categorize CAFOs as Large, Medium, or Small [40 CFR § 122.23 (b) (4), (6), and (9)]. Large CAFOs are defined based upon animal threshold numbers, while Medium CAFOs are defined based upon animal threshold numbers plus an actual discharge of pollutants into the waters of the United States through a "man-made ditch, flushing system, or other similar device," or if the direct discharge has "originate[d] outside and pass[ed] over, across, or through the facility or other [has] come into direct contact with the animals confined in the operation." A Small CAFO is an AFO that is designated as a CAFO for compliance purposes, but that does not meet the definition of a Medium CAFO. While 40 CFR § 122.23 (b) provides definitions for Large, Medium and Small CAFOs, only those CAFOs, including Large CAFOs, that "discharge" are required to obtain permit coverage under the CWA.

Specifically, as reflected in a federal rule change on July 31, 2012, the CWA now restricts the requirement of permit coverage to CAFOs that actually discharge pollutants into waters of the United States (33 USC § 1342). Because New York has a federally-approved State Pollutant Discharge Elimination System (SPDES) program and the Department is authorized to administer the program in New York, the Department issues a CWA SPDES permit for AFOs that both meet the federal definition of a CAFO and discharge. This SPDES General permit (CWA CAFO General Permit - General Permit Number GP-04-02), any other individual SPDES permit issued to a discharging CAFO, and the applicable regulatory provisions, remain unchanged by this proposed Rulemaking Initiative.

The ECL authorizes the Department to regulate the creation, use or maintenance of a point source regardless of discharge status. Specifically, ECL § 17-0701 (1) (a) states (in relevant part) that, "it shall be unlawful for any person, until a written SPDES permit therefore has been granted by the Commissioner, or by his designated representative, and unless such permit remains in full force and effect, to: (a) make or cause to make or use any outlet or point source for the discharge of sewage, industrial waste, or other wastes or the effluent therefrom, into the waters of this state...." (emphasis added). Sewage is defined in ECL § 17-0105 (4) to mean "water-carried human or animal wastes from residences, buildings, industrial establishments or other places, together with such groundwater infiltration and surface water as may be present." Thus, under the ECL Article 17, the creation of a point source for a discharge, even without a discharge to waters, is subject to regulation.

ECL § 17-0105 (16) defines a CAFO as a point source. Department regulations, however, have not previously defined the term "CAFO" to specify those facilities that are point sources for purposes of state law. Currently, unlike federal law, the Department defines Medium CAFOs - by permit - based upon the animal thresholds set forth in the federal regulations irrespective of whether there is an actual discharge to waters of the United States. Under its authority to regulate the creation of a point source, the Department issues an ECL CAFO SPDES General Permit (GP-0-09-001) for CAFOs.

The Department's statutory authority to undertake amendments to 6 NYCRR Part 360 is found in ECL § 1-0101; Article 3, title 3; Article 27, titles 1, 3, 5, 7, 9, and 13; Article 70, title 1; and, Sections 8-0113; 11-0325, 19-0301, 19-0303, 19-0304 and 19-0306.

This proposed rulemaking revises 6 NYCRR Subpart 360-4 ("Land Application and Associated Storage Facilities"), and 6 NYCRR Subpart 360-5 ("Composting and Other Class A Organics Processing Facilities"). The proposed rulemaking makes various substantive changes as described in this Regulatory Impact Statement. ECL § 27-0703 (2) grants the Department the power to "[a]dopt and promulgate, amend and repeal rules and regulations governing the operation of solid waste management facilities." This enabling legislation specifies the goal of reducing different types of pollution (including water pollution) and recognizes that different rules may be appropriate for particular types of solid waste management facilities.

2. 'Legislative Objectives.' The proposed amendments to 6 NYCRR Subpart 750-1 are consistent with the legislative objectives to achieve "social, economic and technological progress for present and future generations" while guaranteeing beneficial use of the environment without risk to health and safety [ECL § 1-0101 (3)]. Furthermore, ECL Article 17 declares that the public policy of the State is to require the use of all known available and reasonable methods to safeguard, prevent and control pollution in the waters of the state of New York (ECL Section § 17-0101). ECL § 17-0303 (3) authorizes the Department to promulgate rules, regulations and permit conditions to achieve this public policy [see also, ECL § 3-0301 (2) (m)].

The proposed rulemaking involves changes to the Department's existing Part 750 regulations to expressly define the term "CAFO" (which was previously reserved); encourage economic progress by promoting dairy product production consistent with public health, safety, and the environment; and to clarify the Department's authority and responsibility to issue both a CWA and an ECL CAFO General Permit. This proposed rulemaking clarifies the scope of the Department's regulatory authority by defining the term "CAFO" for purposes of state law such that the universe of facilities subject to coverage and the applicable standards remain at least as stringent as those under federal law. This proposed rulemaking initiative ensures the Department's continued jurisdiction for issuing its CWA CAFO General Permit for all discharging Medium CAFOs above the threshold of 200 mature dairy cows (as required by the CWA), while continuing the Department's statutory authority to issue its ECL CAFO General Permit (GP-0-09-001) for non-discharging Medium CAFOs above the threshold of 299. Furthermore, the proposed rules provide flexibility by allowing non-discharging AFOs with 200-299 mature dairy cows the option to request permit coverage, and if permit coverage is granted, the AFO would be considered a Small CAFO throughout permit coverage and by also enabling the Department to designate AFOs as Small CAFOs. Lastly, the proposed rule clarifies that this revision does not impact the Department's existing authority to enter, inspect and collect information for the purpose of determining compliance. This proposed rulemaking initiative is consistent with the Department's mission statement,

"To conserve, improve and protect New York's natural resources and environment and to prevent, abate and control water, land and air pollution, in order to enhance the health, safety and welfare of the people of the state and their overall economic and social well-being."

This rule continues to serve the public policy objective of the Legislature in protecting the environment and promoting economic growth because the only AFOs not required to maintain permit coverage are non-discharging AFOs with 200-299 mature dairy cows. These AFOs are expected to apply nutrients at agronomic rates in accordance with the criteria for the agricultural stormwater discharge exemption and prevent any improper discharge(s) that would cause them to become classified as CAFOs and face potential enforcement actions. Furthermore, these facilities are expected to participate in the Department of Agriculture and Markets Agricultural Environmental Management (AEM) program or other equivalent conservation programs, although such participation will not be mandatory.

The proposed definition of a CAFO in 6 NYCRR Part 750-1.2 is consistent with the federal standard, and therefore enables the Department to continue to require SPDES coverage for all CAFOs discharging to waters of the United States. With respect to AFOs that do not discharge, the proposed revision to 6 NYCRR § 750-1.2 (a) (21) limits the exemption from obtaining SPDES permit coverage to non-discharging AFOs with 200-299 mature dairy cows, whether milked or dry. Furthermore, the proposed revision to this Section allows AFOs that are no longer required to obtain an ECL CAFO SPDES Permit to voluntarily maintain such permit coverage. Current Medium CAFOs that are operated and maintained in accordance with their Comprehensive Nutrient Management Plan (CNMP) would likely seek to continue coverage because the costs of implementing their CNMP would be relatively small, while continued compliance with the permit might provide some protection for the CAFO from potential citizen suits.

The proposed revision to 6 NYCRR § 750-1.21 clarifies the Department's state law authority to issue SPDES permits to cover CAFO operations, whether there is an actual discharge or not, subject to the above described exemption. The Department's issuance of a SPDES general permit for CAFOs that do not discharge aligns with the ECL and is more protective of the environment than is required by the CWA. It also furthers the legislative goal of using all known available and reasonable methods to safeguard, prevent and control pollution in the waters of the state of New York by regulating discharges, as well as the creation of point sources for a discharge.

The proposed rulemaking to amend 6 NYCRR Subparts 360-4 and 360-5 is also consistent with the public policy objectives that the Legislature sought to advance. ECL § 3-0301 (1) (f) provides the DEC commissioner with the power to "[f]oster and promote sound practices for the use of agricultural land, river valleys, open land, and other areas of unique value." Furthermore, ECL § 27-0101 sets forth that:

"1. [i]t is the purpose of the legislature of the State of New York in enacting this article to encourage the development of economical projects for the present and future collection, treatment and management of solid and hazardous waste in such a manner as will assure full consideration of all aspects of planning for proper and effective solid and hazardous waste disposal, coordinated, so far as practicable, with other related state, regional and local planning activities, and consistent with the protection of the public health, including such factors as population change, urban and metropolitan development, land use planning, water pollution and air pollution control, and feasibility of regional resource recovery programs.

2. It is furthermore the purpose of the legislature of the state of New York to effect maximum resource recovery from solid waste on a cost-effective basis, with minimum environmental debit, energy-efficient materials recovery, prudent land use, maximum economic benefits and maximum effective private sector participation, with due concern for the primacy of the local and regional role in resource recovery procedures upon the basis of public knowledge and consent."

In addition, the State Administrative Procedure Act §202-a (3) (f) encourages agencies to "minimize the impact" of duplication or overlap between regulatory rules.

Part 360 provides regulatory oversight for solid waste management facilities in the State. Under existing regulations, if waste management at a farm is confined to the farm and only involves waste (manure, crop residues) produced on such farm, the activities are exempt from Part 360. Conversely, if a farm accepts nutrient laden wastes from off-site, such as food processing wastes from yogurt producers, Part 360 criteria apply. Subparts 360-4 and 360-5 govern facilities that recycle various solid wastes through application to agricultural soil or through processing, such as composting or anaerobic digestion (AD), that convert the organic matter in solid waste to soil products. In some cases, such as anaerobic digestion, the process also produces a gas that can be converted to energy. These Subparts were last revised in 2003 and there have been changes in the management of organic waste that dictate the need to update the regulations. Furthermore, under the current Part 360 regulations, there is overlap between the solid waste requirements and requirements applicable to CAFOs permitted under Part 750. For example, land application of whey obtained from an outside source requires both registration under Part 360 and compliance with the requirements set forth in a SPDES permit. This duplication is unnecessary and burdensome on the affected farms, and provides no additional environmental protection.

The proposed Part 360 rulemaking advances these legislative objectives by addressing new solid waste management technologies, such as setting criteria for anaerobic digesters, while eliminating obsolete and duplicative requirements. These changes anticipate the increased production of dairy products, such as yogurt, in New York State, and the increased recycling of whey and similar food processing wastes through land application and other means. Also, AD has become more popular as a means to generate energy as well as a more stable organic material for land application and animal bedding. Accordingly, Sections 360-4.2 (a) (5) and 360-5.3(a) (4) and (5) have been added or revised to create an exemption from registration or permitting under Part 360 for a land application facility, manure storage facility or an anaerobic digestion (AD) facility on a Part 750 permitted CAFO that also involves food processing waste or other waste, if the waste handling is addressed in a Comprehensive Nutrient Management Plan (CNMP). This revision eliminates some of the overlap between the regulatory programs.

Specifically, the proposed rulemaking makes the following substantive changes. The existing version of 6 NYCRR Section 360-4.2 (a) (1) provides that land application facilities for animal manure and associated bedding material are exempt from the requirements of Subpart 360-4. The proposed rule would define the term "bedding material" for purposes of the exemption to clarify that this exemption applies to common bedding material used at farms (e.g., hay, straw, sawdust, wood shavings, newsprint, sand, and materials approved pursuant to a beneficial use determination). This revision provides clarity but is not a change to the current regulatory program.

A new 6 NYCRR Section 360-4.2 (a) (4) would be added to exempt land application facilities for undigested food and fecal material emanating from New York State-owned or licensed fish hatcheries from the requirements of Subpart 360-4 where the waste is applied at or below agronomic rates. This new exemption would allow the Department to dispose of fish hatchery waste in a responsible manner. Currently, these activities require a registration but that level of oversight is not needed since these facilities are under the oversight of Department staff and manage a relatively small amount of material.

A new 6 NYCRR Section 360-4.2 (a) (5) would be added to create an exemption for a land application facility or manure storage facility on a Part 750 permitted CAFO that also involves food processing waste or other waste if the waste handling is addressed in a CNMP. The exemption would not apply if the waste contains any human fecal matter or if the amount of non-manure waste placed in the storage facility exceeds 50% of the total volume of waste placed in the storage facility on an annual basis. This reduces the overlap between the two programs.

6 NYCRR Section 360-4.2 (b) (1) (vii) would be revised to clarify the standards that apply to storage facilities. Under the current regulations, the storage facility, if it accepts more than 10% food processing waste, must be designed to minimize groundwater impacts, but the standard is not defined. In practice, the Department has required the facilities to meet NRCS Code 313. This revision specifies the standards that must be met and that the facility must be primarily a manure storage facility.

6 NYCRR Section 360-5.3 (a) (1) would be revised to provide an exemption from Subpart 360-5 for a composting facility that accepts crop residues and to clarify that the exemption from Subpart 360-5 applies to farms.

6 NYCRR Section 360-5.3 (a) (2) would be revised to specify that the exemption from Subpart 360-5 applies to either processed or unprocessed yard waste and to indicate that precipitation, surface water, and groundwater that comes into contact with yard waste or the resultant compost is not considered leachate for purposes of Part 360, but must be managed in an acceptable manner to the Department. This does not represent a change from current regulatory practices, just a clarification.

6 NYCRR Section 360-5.3 (a) (4) would exempt certain composting facilities for animal mortalities located on a farm or CAFO from the requirements of Subpart 360-5; and Section 360-5.3 (a) (5) would exempt anaerobic digestion (AD) facilities that accept specified farm waste from the requirements of Subpart 360-5. This rulemaking would also exempt certain activities associated with AD facilities, including CAFOs implementing a CNMP for manure, food processing waste, fats, oil, grease, and other wastes without human fecal matter, provided that the non-manure waste is less than 50% of the total waste by volume placed in the AD unit on an annual basis. This section would also exempt land application of solids and liquids from AD facilities and other activities relating to dewatered solids. These revisions intend to remove the duplicate regulatory criteria in Part 750 and Part 360. Part 360 will continue to regulate the management of sanitary waste due to the environmental concerns (pathogens, etc) that must be addresses with that waste stream.

A new 6 NYCRR Section 360-5.3 (b) (1) (iv) would be added to outline the eligibility for registration for organic processing facilities for animal mortalities or parts generated from a farm, slaughterhouse, butcher or other generator; and Section 360-5.3 (b) (1) (v) establishes eligibility for registration for composting facilities for dewatered solids from an AD that is subject to registration. Furthermore, Section 360-5.3 (b) would be revised to create eligibility for registration for AD facilities that accept less on a daily basis than 50 tons of farm waste -- not containing human fecal matter -- provided that certain operating conditions are met. AD facilities accepting any waste containing human fecal matter or accepting 50 tons or more of waste per day would be required to obtain a permit. Moreover, while land application of solids and liquids generated from an AD facility would require registration, land application that occurs at a Part 750 permitted CAFO would be exempt if land application is addressed in a CNMP.

6 NYCRR Section 360-5.5 (b) would be revised to exempt AD digestate used on farms from pathogen reduction alternatives under this subdivision. A new Section 360-5.5 (d) (14) would be added to establish specific criteria, including pathogen reduction, for the operation of AD facilities that accept sanitary waste. This codifies current practice under Part 360.

The rulemaking would make certain revisions to 6 NYCRR Section 360-5.6 with respect to source separated organics processing facilities. Specifically, the revisions would include permit application requirements, pathogen and vector attraction criteria, pollutant limits and product use for material distributed to the public, and design criteria and operational requirements. A new Subdivision (f) would be added to set forth AD criteria. Collectively, these proposed changes would encourage the development of economical projects for current and future collection, treatment and management of solid waste; reduce duplicative regulatory requirements for farms and CAFOs; and facilitate the growth of AD facilities by outlining regulatory expectations early in the development process. These revisions are accomplished without compromising the environmental safeguards of the Part 360 regulations.

3. 'Needs and Benefits.' The purpose of the proposed 6 NYCRR Part 750 rulemaking is to promote and foster the New York's dairy industry (especially the yogurt industry) by encouraging an adequate supply of locally-produced milk from New York farms in a manner that is consistent with protecting the public health and environment. The regulatory initiative is expected to encourage the expansion of smaller dairy farms, lessen the economic burden on non-discharging AFOs with 200-299 mature dairy cows, and promote job opportunities within the State associated with yogurt production. The rule removes regulatory burdens that would ordinarily discourage smaller farms to increase the size of their herds by raising the threshold at which non-discharging CAFOs must obtain an ECL CAFO SPDES permit from 200 mature dairy cows to 300 mature dairy cows. By relieving non-discharging AFOs with 200-299 mature dairy cows from the obligation to obtain permit coverage, smaller non-discharging dairy farms will be less restricted in the expansion of their herds and would likely produce more milk. Increased milk production is expected to create jobs for milk truck drivers, dairy processors, and construction workers to accommodate the potential expansion of yogurt plants. Expanded dairy farms may also hire additional workers to meet their business needs.

The purpose of the proposed revisions to 6 NYCRR Subparts 360-4 and 360-5 is also, in part, to promote the New York yogurt industry. 6 NYCRR Subparts 360-4 and 360-5 govern facilities that recycle various solid wastes through application to agricultural soil, composting or anaerobic digestion. In some cases, such as anaerobic digestion, the process also produces a gas that can be converted to energy. These changes anticipate the increased production of yogurt and other dairy products in New York State, and the increased recycling of whey and similar food processing wastes through land application and other means. Indeed, the establishment of larger farms and increased yogurt production will dictate the need for additional management infrastructure for manure and whey. Anaerobic digesters located on farms provide a superior method to manage both manure and whey, by providing the yogurt manufacturers with a long term, viable method to recycle this material and providing the farm with income from tipping fees and increases electricity production. Also, anaerobic digestion has become more popular as a means to generate energy and provides a more stable organic material for land application and animal bedding.

Under the current regulatory programs, a CAFO could be required to have a compliant CNMP and a registration under Part 360 even though both govern the same practices - the storage and land application of manure with food processing waste. Both regulations are aimed at controlling nutrient loading and minimizing potential ground and surface water impacts. This regulatory burden is duplicative and provides no additional environmental protection. The impacts associated with this overlap if left in place would be exacerbated by the expected increase in the amount of land application of food processing waste and the associated storage or digestion of the waste at farms prior to land application. To avoid this unnecessary duplication, this rulemaking would exempt from the regulatory requirements of 6 NYCRR Part 360 certain types of land application, storage, and digestion activities on permitted CAFOs. The resulting regulatory revision would reduce the burden on these farms with no resultant decrease in environmental protection. For those farms not permitted under the CAFO program, Part 360 criteria will continue to apply.

The use of anaerobic digesters on farms and other locations is desirable both from an environmental and energy perspective and has become more popular over the last few years. It is expected that the use of anaerobic digesters will increase significantly over the next decade. Currently, AD facilities are subject to Part 360 requirements but some of the regulatory criteria is seen as confusing and thus curtail the development of AD. In addition to the above-mentioned exemption for most anaerobic digesters located on permitted CAFOs, other revisions to Subpart 360-5 would be added to specifically outline the requirements that apply to AD facilities. These changes will help facilitate the growth of anaerobic digesters by outlining the regulatory expectations early in the development process without reducing environmental protections provided by the Part 360 regulations.

The proposed Part 360 revisions are a means to reduce regulatory burden and confusion, and assist the farms, food processors, and others in the state who are striving to recycle organic wastes in an environmentally sound manner.

4. 'Costs.' There are no significant costs anticipated for the regulated community. In fact, by providing AFOs with 200-299 mature dairy cows the option of electing not to obtain coverage under the ECL CAFO SPDES permit, these AFOs would be expected to reduce costs, including the cost of obtaining a permit and annual reporting requirements. In addition these AFOs would be allowed to spread elected BMP costs over multiple years. For those CAFOs continuing permit coverage, either by electing to stay in the program (non-discharging CAFOs with 200-299 mature dairy cows), or those CAFOs that are still required to obtain coverage (discharging CAFOs with 200-299 mature dairy cows or CAFOs with 300 or more mature dairy cows irrespective of discharge), it is anticipated that administrative costs would be reduced because CAFOs would no longer be required to register pursuant to the Part 360 program for land application of food processing waste and the associated storage or digestion of the waste at farms. The State does not anticipate any additional costs in administering these proposed regulatory changes.

5. 'Local Government Mandates.' There are no programs, services, duties or responsibilities imposed by the rule upon any county, city, town, village, school district, fire district or other special district. However, to the extent that AFOs between 200-299 mature dairy cows are located in an impaired watershed and the load allocations are included in a Total Maximum Daily Load (TMDL) as a water quality restoration strategy there may be stricter wasteload allocations imposed upon other types of facilities (such as wastewater treatment plants) in order to meet TMDL requirements. This allocation methodology could result in increased costs to local governments.

6. 'Paperwork.' Current CAFOs that are no longer required to obtain an ECL CAFO SPDES permit and that opt to discontinue permit coverage must file a one page Notice of Termination form with the Department. There are no other reporting requirements required as a result of this rule.

7. 'Duplication.' The proposed changes to 6 NYCRR Subpart 750-1 clarify the different regulatory requirements for CAFOs that meet the federal definition of a Medium CAFO (which requires an actual discharge) as compared to those CAFOs regulated pursuant to the ECL (non-discharging CAFOs). The rulemaking provides that non-discharging AFOs with 200-299 mature dairy cows are not required to obtain an ECL CAFO SPDES Permit unless designated, while maintaining the current requirement for non-discharging Medium CAFOs with 300-699 mature dairy cows to obtain an ECL CAFO SPDES permit. In addition, the proposed changes to Subparts 360-4 and 360-5 address the unnecessary overlap between the regulations governing land application in Part 360 and the permit requirements for CAFOs administered by the Department through its SPDES program. Therefore, under the proposed rule change, land application, storage, and digestion activities on permitted CAFOs are exempt from the regulatory requirements of Part 360.

8. 'Alternatives.' One alternative the Department considered was taking no action. This alternative is not as likely to achieve the economic benefits and regulatory efficiencies associated with the rulemaking. This alternative also would not allow the Department the opportunity to clarify that the scope of the Department's regulatory authority for CAFOs is broader under state law than it is under federal law. The rulemaking describes those CAFOs that are considered point sources under ECL § 17-0105 (16). Specifically, an AFO with 200-299 mature dairy cows that discharges is classified as a Medium CAFO and is therefore a point source. If an AFO has 200-299 mature dairy cows and does not discharge, it is not classified as a CAFO, and therefore is not a specifically defined point source, unless it elects to seek permit coverage or is designated to be a Small CAFO. In this regard, state law under the proposed rulemaking will be as stringent as federal law. State law, however, is more stringent than federal law for Medium CAFOs with 300-699 mature dairy cows. For purposes of state law, these facilities are CAFOs that are considered point sources and must obtain an ECL CAFO SPDES permit even if there is no discharge. In contrast, federal law only requires that Medium CAFOs with 300-699 mature dairy cows obtain a CWA CAFO SPDES permit if there is a discharge to waters of the United States. In addition, the no-action alternative would not correct the regulatory overlap between Part 750 and Subparts 360-4 and 360-5 with respect to land application, storage, and digestion activities on permitted CAFOs. The no-action alternative would also fail to address the regulatory uncertainty surrounding AD facilities, which has led to confusion and inhibited the development of these desirable facilities on farms and elsewhere.

A second alternative that the Department considered was to maintain the definition of medium dairy CAFO operation at the current minimum threshold of 200 mature dairy cows, exempt from permit coverage those farms from 200-299 without a discharge, and require mandatory enrollment in the Department of Agriculture and Markets' Agricultural Environmental Management (AEM) Program for the exempted facilities. This alternative provides greater assurance of water quality protection and a mechanism to implement the same BMPs that would be implemented as part of the CAFO general permit. This alternative, however, may also fall short of meeting the rulemaking goals of expanding milk production to foster the yogurt industry in New York because it would essentially substitute one set of mandatory requirements for another. By mandating participation in AEM, these farms would lose the flexibility and cost savings that this rulemaking aims to achieve. The proposed rule, conversely, provides flexibility by giving dairy farms the option to voluntarily maintain permit coverage or voluntarily opt into the AEM program.

A third alternative that the Department considered was to define medium dairy CAFO at the current minimum threshold of 200 mature dairy cows, exempt from permit coverage those farms from 200-299 without a discharge, and require mandatory enrollment in the Agricultural Environmental Management (AEM) Program for exempted CAFOs located in watersheds with an impaired waterbody. This compromise provides assurance of water quality protection to impaired waterbodies, yet grants the economic benefits associated with relief from the permit requirements to the owners or operators of non-discharging CAFOs with 200-299 mature dairy cows. This alternative would be difficult to employ because it would require different standards for CAFOs of the same size. Moreover, to the extent that an impaired waterbody is subject to a TMDL, the TMDL's overall requirements would ensure that there are no additional impacts to water quality, although there may be a shift in wasteload allocations imposed upon other types of facilities.

A fourth alternative that the Department considered was to terminate the ECL Permit program and simply continue to administer the CWA permit and standards. The Department rejected this alternative because the ECL makes it unlawful to create a point source without first obtaining a Department-issued permit. Therefore, eliminating the ECL permit program in its entirety could be legally challenged based on the Department's failure to provide a permit to enable CAFOs to comply with this statutory provision. Requiring ECL permit coverage for non-discharging CAFOs with 300 or more mature dairy cows is environmentally beneficial since the permit imposes requirements for both structural and non-structural BMPs. Indeed, as dairy farms grow, the potential for a significant environmental impact from a discharge also proportionally grows, as the amount of waste produced on the farm directly corresponds to the number of mature dairy cows. These BMPs help guide CAFOs in a direction that reduces the possibility that they will cause unanticipated discharges to water bodies and face enforcement actions for such illegal discharges. For example, when a CAFO applies waste in accordance with appropriate agronomic practices, any agricultural stormwater discharges are exempt, thereby protecting the CAFO from an enforcement action [ECL § 17-0701 (16)]. Unlike current CAFOs between 200-299 mature dairy cows, CAFOs above the 300 threshold generally have the financial ability to develop a CNMP and implement BMPs, thus the required permit coverage for these CAFOs would not be a barrier to growth. Eliminating the ECL permit could lead to increased pollution if non-discharging CAFOs opt out of permit coverage and if participation in voluntary programs is ineffective in mitigating potential environmental risks. Therefore, this alternative would not provide the necessary environmental protection.

9. 'Federal Standards.' This proposed rulemaking and the Department's corresponding permit program clarify that state law is more stringent than minimum federal standards for the regulation of CAFOs. Moreover, under this proposed rule change a CAFO with 200-299 mature dairy cows that discharges is a point source subject to federal requirements under the CWA, while an AFO that has 200-299 mature dairy cows and does not discharge would not be considered a CAFO, and therefore would not be a specifically defined point source, unless it elected to seek CAFO SPDES permit coverage or was designated to be a Small CAFO. This proposed rule change is consistent with federal standards because the applicable regulatory provisions and permit program for CAFOs that meet the federal definition and fall under the CWA remain unchanged by this proposed Rulemaking Initiative. With respect to the proposed changes to Subparts 360-4 and 360-5, there are no federal regulations for the facilities and activities contained in the proposed rulemaking.

10. 'Compliance Schedule.' This rule eliminates permitting requirements for non-discharging AFOs with 200-299 mature dairy cows that no longer will be classified as Medium CAFOs, as well as regulatory overlap between Parts 750 and 360. Therefore, there is no additional time needed to achieve compliance with the rule. With respect to the changes to Part 360, the regulated community will be required to comply with these revisions within 60 days from the filing of the rule.

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