Iowa Separation Agreements

							  IOWA LIVESTOCK
REGULATIONS UPDATE

 IOWA PORK PRODUCERS
      ASSOCIATION
   June 12, 14, 15, 2006
       Eldon McAfee
DNR AUTHORITY
     Proposed operations or expansions

  Proposed rule – on June 19 EPC agenda for
   final adoption
  Will go into effect August 23, 2006
  List of factors DNR Director is to consider to:
     Amend requirements to construct or operate
     Deny a permit, manure management plan,
      or construction
  DNR’s authority under this rule is in addition to
   all other state and federal requirements
ANIMAL CAPACITY                 Animal weight
      capacity and animal unit capacity

    Constructed before 2002 legislation – AWC -
     maximum number of animals confined at any time in a
     confinement operation multiplied by the average
     weight during a production cycle
    Constructed or expanded after 2002 legislation – AUC
     - maximum number of animals confined at any one
     time in a confinement operation multiplied by the
     animal unit factor
       Animal unit factor – swine
           .4 - more than 55 pounds, .1 – 15 to 55
    Under Iowa law, the AUC of a confinement operation
     is not included in calculating the AUC of an open
     feedlot operation – federal EPA regs currently require
     adding together if both have same species
CONFINEMENT OPERATIONS
Adjacency - one operation or two?

     To determine if a permit or manure management
      plan is required, and if concrete standards apply:
     Two CFO’s are considered to be one operation
      when:
        There is common ownership or management, and
        They are adjacent; or
           Utilize a common area or system for manure
            application
     Adjacent – CFO’s within:
           1,250 feet if the combined AUC is <1,000

           2,500 feet if the combined AUC is >1,000
CONFINEMENT OPERATIONS
Adjacency - One operation or two?

     To determine required separation distances:
     Two CFO’s are considered to be one operation when:
        There is common ownership or management, and
        They are adjacent
     Adjacent – CFO’s within:
        1,250 feet if the combined AUC is <3,000 for
         finishing or nursery (<1,250 AUC for farrow-gest. or
         <2,700 AUC for farrow to fin.)
        1,500 ft. if the combined AUC is >3,000 but <5,000
         for finishing or nursery (>1,250 but <2,000 AUC for
         farrow-gest. or >2,700 but <5,400 AUC for farrow to
         fin.)
        2,500 feet if the combined AUC is >5,000 for
         finishing or nursery (>2,000 AUC for farrow-gest. or
         >5,400 AUC for farrow to fin.)
CONFINEMENT OPERATIONS
Adjacency - one operation or two?

   DNR rules definition of adjacent has not
    been revised since the 2002 legislation
   The rules definition still follows the
    animal weight capacity requirements for
    adjacency that were in effect before the
    2002 legislation
   The definition of adjacency in the Iowa
    Code, as set forth in these slides, is the
    definition that must be followed
CONFINEMENT OPERATIONS
One or two?

     Common management
       Iowa law (DNR rule):
          Significant control of day-to-day
           operations
       DNR interpretation:
          Common management if two producers
           contract feed hogs for the same owner if
           the owner has the right to control
           marketing, feed rations, or vet services
Environmental regulation compliance
     What if advice from DNR is incorrect?

    2004 Iowa Supreme Court case:
      Business required to get a solid waste
       disposal permit when DNR employee
       initially incorrectly advised that a permit was
       not required
      Court ruled DNR employee was acting in
       good faith and within his duties even though
       the employee made an erroneous
       interpretation of the law
Advice from DNR on regulations
      What if it is incorrect?

    Audubon county producer required to get a
     construction permit on referral to the Iowa Attorney
     General even though DNR field and state office
     advised that a permit was not required
    Osceola county producers denied a construction
     permit by EPC because no P Index was included with
     MMP. DNR had approved the permit application
     based on DNR policy that allowed P Index to be
     submitted before first manure application if soil
     samples could not be taken
    Muscatine county producer required to stop
     construction and obtain a stormwater discharge permit
     even though DNR had given him an outdated brochure
     that stated a permit was required if more than 5 acres
     was disturbed (law changed to more than 1 acre in
     2003)
DNR ENFORCEMENT
     If a violation occurs:
  Monetary penalties – up to $10,000
  Require corrective action
  Require confinement operations to get a discharge
   permit (NPDES/operating permit) if an accidental
   discharge occurs
  Request that the Iowa Environmental Protection
   Commission (EPC) refer the violation to the Iowa
   Attorney General for enforcement
     Referral to the Attorney General results in:
         No new construction or expansion while case is
          pending in court
         Higher monetary penalties – up to $5,000 per
          day per violation
         Potential habitual violator status (3 strikes and
          then no new construction or expansion for 5
          years after the last strike)
  All monetary penalties are required by law to go to
   DNR’s animal compliance fund
DNR ENFORCEMENT
Environmental self audits

    Initiated by business owner to determine
     environmental compliance
    Benefits:
       Immunity from penalties if a violation discovered
         during audit and promptly reported to DNR, before
         DNR investigates
       Confidentiality of audit report
    No immunity from penalties if:
       DNR not properly notified
       Violations are intentional or result in injury to
         persons, property or environment
       Substantial economic benefit giving violator a clear
         economic advantage over competitors
MANURE MANAGEMENT PLANS
Original (new) filed with DNR & county

      Formed storage
         More than 500 animal units capacity (1,250 head of
          swine weighing more than 55 pounds or 5,000
          head weighing 15 to 55 pounds)
         Constructed or expanded after 5/31/85
      Earthen storage- DNR construction permit
      DNR interpretation: Upon transfer of operation
         “New” MMP
         MMP fees and indemnity fund fees
         Transfers may include family transfers & forming a
          corporation
         Transferee loses grandfather status for phase-in of
          P Index
MANURE MANAGEMENT PLANS
      Annual updates

    To DNR and county
    Short form detailing changes in MMP or statement that
     there are no changes
           May use table values in updates submitted to
            DNR each year & then apply manure based
            actual sample values if amend plan before
            manure applied (do not have to submit amended
            plan to DNR)
    Compliance fee - $.15/a.u. – if contract feeding,
     livestock owner required to pay fee
    DNR using “tier” system to score producers on
     compliance to determine how often the operation will
     be inspected
MANURE MANAGEMENT PLANS
Recordkeeping

   Records - must be kept on site or at a
    residence or office of the owner or
    operator within 30 miles of the site
   DNR recordkeeping form – not
    mandatory, producer can use own form
   Current MMP
   Rate, methods and date(s) of app.
   Field location and number of acres
MANURE MANAGEMENT PLANS
Recordkeeping – commercial N & P

   For manure applications after 8/25/05, MMP
    records must include dates and application
    rates of commercial N & P on fields receiving
    manure – including land farmed by someone
    else where manure is applied under an
    application agreement.
   DNR cannot bring an enforcement action for
    over application of N or P on land farmed by
    someone else unless the producer “knew or
    should have known” that commercial N or P
    would result in N or P exceeding legal limits.
MANURE MANAGEMENT PLANS
Recordkeeping – commercial N & P

   Producer must obtain statement from
    farmer who owns, rents, or leases each
    field receiving manure specifying the
    planned commercial N and P fertilizer
    rates to be applied to each field
   DNR form, but can use own form for
    individual situations
MANURE MANAGEMENT PLANS
      Manure application agreements

    As part of overall manure management program,
     producers should review manure agreements to
     ensure compliance with DNR rules and proper
     application of manure and other soil nutrients
    Agreements should clearly state that the crop
     producer will comply with the nitrogen and phosphorus
     limits in the manure management plan and that the
     crop producer will provide the dates and application
     rates of commercial nitrogen and phosphorus to the
     livestock producer
    Approval of agreement by landowner’s mortgage
     lender
    Address nuisance and other potential liability
MANURE MANAGEMENT PLANS
DNR policy

     Crop available N during first crop year after manure
      application
        Previously – DNR allowed less than 100%
        Beginning 8/25/04 – new MMP’s - use 100% based
         on ISU Pub. Pm-1811
            Can use less than 100% if provide DNR with
             supporting credible information
        Existing operations may continue to use less than
         100% without supporting info until the first P Index
         based MMP is due
     Nitrogen in addition to amounts allowed in MMP may
      be applied up to amounts recommended by soil or
      crop nitrogen test for optimum crop yield
MANURE MANAGEMENT PLANS
     EPC proposal

  “not allow manure management plans to
   specify that liquid manure be applied to
   land planted to soybeans with a three to
   four year phase in period for holders of
   the existing manure management plans
   and for provisions to allow exceptions for
   wet years or when it becomes too late to
   plant other crops”
  Scheduled for July 17 agenda for release
   for public comment
MANURE MANAGEMENT PLANS
Phosphorus index

     In addition to N requirements
     Phased in based on date of original MMP
        Before 4/1/02 – P Index required with first annual
          update MMP on or after 8/25/08
        On or after 4/1/02 & before 10/25/04 – P Index
          required with first annual update MMP on or after
          8/25/06
        On or after 10/25/04 – must comply with P Index
     Note: DNR has determined that an MMP submitted
      for an expansion of an existing operation is an original
      MMP – an MMP for a modification without expansion
      of animal numbers is not an original MMP
MANURE MANAGEMENT PLANS
Phosphorus index –DNR rules

     Calculated every 4 years, more often if PI inputs
      change
     P Index categories (not the same as soil test):
        Very low (0-1)- N based MMP
        Low (>1-2) N based MMP
        Medium (>2-5)
            Manure may be applied at N based rates if
             current and/or planned soil conservation and P
             mgt practices predict the PI will not exceed the
             medium category at the next PI determination
            Manure not applied in excess of 2 times the P
             removed over crop rotation
        If follow P based rates in these categories, soil
         samples can cover up to 20 acres
MANURE MANAGEMENT PLANS
Phosphorus index –DNR rules

     P Index categories (not the same as soil test):
       High (>5-15)
           (>5-10) Until 12/31/08, manure may be
            applied at P based rates if practices
            adopted to reduce the PI to medium for
            the next determination
               (intent – be able to continue applying
                manure while implementing practices)
           (>10-15) no manure application
               (intent – no additional manure
                applications until practices
                implemented to reduce PI to medium)
       Very high – no manure application
MANURE MANAGEMENT PLANS
Phosphorus index –DNR rules

     Phosphorus based rates:
       P applications over the crop schedule
        limited to crop removal unless additional P
        recommended by soil tests
       P from a manure application cannot exceed
        crop removal from the next 4 planned crops
       P crop removal = optimum yield X P
        removal rate for each crop (.375 lbs. P/bu.
        of corn, or other credible data)
MANURE MANAGEMENT PLANS
Phosphorus index –DNR rules

     Fields – PI calculated for each field. Fields must be
      contiguous-not separated by a road, river, creek, etc.
     Soil type to calculate PI must be most erosive soil map
      unit that is at least 10% of the total field
     Soil sampling - Every 4 years
        Samples for each 10 acres (20 acres if PI vl, l, or m
         and apply manure on P rates)(fields up to 15 acres
         – one sample)
        Samples averaged for soil test level of a field
        Existing soil tests may be used if they meet DNR
         requirements
        MMPs for construction, if previous soil tests are
         less than 4 years old and don’t meet requirements,
         they may still be used if new soil tests meeting
         DNR requirements are taken within one year after
         the MMP is approved
CONSTRUCTION-FORMED STOR.
500 animal units or less (small AFO)


   Separation distances from water bodies (500 ft. from
    creek, etc.) & wells
   No construction in 100 yr. floodplain of navigable
    river, etc. - determine if on alluvial soils – if so,
    determination from DNR regarding 100 yr. floodplain
   Tile around footings for below ground storage (or
    certification that groundwater table is below the
    structure)
   Stormwater discharge permit if area disturbed during
    construction is more than 1 acre
CONSTRUCTION-FORMED STOR.
500 & 1,000 animal units

     MMP & construction design statement to DNR &
      county 30 days before construction
        Note: All information on the MMP & CDS be
         completed correctly – DNR has taken the position
         that the 30 day period does not start if certain info is
         not correct or is missing
     Meet construction design stds. (including tile around
      footings or cert. regarding groundwater level)
     Meet required separation distances
     No construction in 100 yr. floodplain of navig. river,
      etc.
     Stormwater discharge permit if area disturbed during
      construction is more than 1 acre
     See www.iowadnr.com/afo/forms.html for forms
CONSTRUCTION-FORMED STOR.
1,000 animal units or more

   Construction permit app. to DNR & county (DNR has
    60 days to act but can extend for add. 30 days)
   Engineer required if 3,000 or more a.u.’s (1,250 a.u.’s
    for farrow gest or 2,750 a.u.’s for farrow to finish)
   Const. design statement if no engineer req’d
   Meet construction design stds. (including tile around
    footings or eng. cert. regarding groundwater level)
   Meet required separation distances
   No construction in 100 yr. floodplain of navig. river
   Manure management plan
   Stormwater discharge permit if area disturbed during
    construction is more than 1 acre
   See www.iowadnr.com/afo/forms.html for forms
CONSTRUCTION-FORMED STOR.
1,000 animal units or more

     Master matrix
       Not required if expansion up to 1666 a.u.’s if site
        constructed as of 4/1/02 or if county has not
        adopted matrix
       Producer selects criteria – county scores – DNR
        independently scores if county rejects
       Legally enforceable - part of permit
       Supporting documentation, including design,
        operation, and maintenance plans.
           Note: If the necessary supporting documention
            is not included, DNR takes the position that it
            may reject the permit application (even if a
            county passes the matrix) because the matrix is
            a part of the permit
       Also triggers county’s 14 day right to appeal
        issuance of permit
CONSTRUCTION-FORMED STOR.
1,000 animal units or more – 6/15/05 DNR rule

   Construction permit required if any construction of a
    manure storage structure occurs on site
   Permit required even if no physical construction or
    alteration if there is an increase in manure volume or a
    modification in the manner manure is stored. Unless
    increases or modifications are:
      Within the limits of a previously issued const. permit
      Determined insignificant by DNR (e.g., double
       stocking weaned pigs in a wean-to-finish barn)
   No permit required for repairs or additions to a building
    such as fans, slats, gates, roofs or covers
   Plans for repair or modification to a manure structure
    must be submitted to DNR to determine if a permit is
    required
CONSTRUCTION
     Stormwater discharge permit

  Required if the total area disturbed is more than one
   acre - activities that further cropping are exempt
  To obtain a stormwater discharge permit for
   construction activities:
     Publish a form notice in 2 newspapers with the
      largest circulation in the area
     Prepare a pollution prevention plan that includes
      measures to be implemented to control erosion
      during construction and until a permanent ground
      cover is established. This plan must be in place at
      the time the notice of intent is submitted to DNR
      and must be kept on site
     Submit a notice of intent to be covered by the state
      general stormwater discharge permit to DNR at
      least 24 hours before construction begins. Attach
      proof of publication of public notice to the notice of
      intent and filing fee.
  See www.iowadnr.com/afo/forms.html for forms
SEPARATION DISTANCES
Residences, businesses, road rights of way, etc.

   CFO’s with formed manure storage and more than 500
    AUC are subject to separation distances regardless of
    whether a DNR permit is required-all new or
    expanding CFO’s with earthen storage are subject to
    separation distances
   Residences, businesses, churches, schools, public
    use areas, and road rights-of-way
   Public use areas include parks and cemeteries
    (pioneer cemeteries (6 or fewer burials in the last 50
    years) are exempt)
   For a worksheet and separation distance tables see:
    www.iowadnr.com/afo/files/distreq.pdf
SEPARATION DISTANCES
Residences, businesses, etc.

     Exemptions:
        Written waiver from owner of residence, etc. – must
         be recorded with county recorder
            Also may want to include:
               Covenant-not-to sue for nuisance
               Approval by residence mortgage holder
        Expansion of CFO -- use distances in effect at time
         CFO constructed (if CFO constructed before any
         distances required, 1995-1999 distances apply)
        <2x cap.,<1,000 AUC, and new structure built
         further from residence, etc.
        Residence, etc. built after CFO began operation
     DNR rules state that dry manure structures are
      exempt - however, this exemption was eliminated by
      2002 legislation & DNR rules have not been updated
SEPARATION DISTANCES
     Road rights of way

  100 feet from the right-of-way
  Exemptions:
     Small animal feeding operations (500 or
      less animal units)
     Waiver from state or county
  DNR rules state that there is an exemption if
   trees are planted between the structure and
   the road right of way – however, this
   exemption was eliminated by the 2002
   legislation and DNR rules have not been
   updated
SEPARATION DISTANCES
Water bodies – rivers, creeks, wells, etc.

     1,000 feet - Ag drainage wells, sinkholes, navigable
      waters (major water sources -- rivers, etc. from list in
      DNR rules – new list goes into effect on 4/16/06)
     500 feet - Surface inlets to ag drainage wells & water
      sources (creeks,etc.)
     2,500 feet - Designated wetlands (designated as
      protected by U.S. Dept. of Interior or DNR; and owned
      and managed by the U.S. government or DNR
     Wells – formed manure storage
        200 feet from a shallow well
        100 feet from a deep well
        Can request variance from DNR
SEPARATION DISTANCES
Water bodies – rivers, creeks, wetlands, etc.

     Distances for water sources, major water sources or
      designated wetlands do not apply to:
        Farm ponds – defined as body of water:
           Wholly on the lands of a single owner, or group
            of joint owners
           No connection to public waters
           Less than 10 surface acres
        Privately owned lakes – defined as any lake:
           Not subject to federal control covering navigation
           Owned by an individual, group of individuals, or
            a nonprofit corporation
           Which is not open to the use of the general
            public but is used exclusively by the owners and
            their personal guests.
SEPARATION DISTANCES
Water bodies – rivers, creeks, wetlands, etc.

     Distances for water sources, major water sources or
      designated wetlands do not apply to:
        CFO structures using secondary containment
         barriers
           DNR rules:

               Structure surrounding or downslope

               Contain 120% of manure stored above grade

               Can be concrete and/or earth

               Cannot have a relief outlet or valve

               Earthen barriers must meet percolation &

                design standards
SEPARATION DISTANCES
Water bodies – rivers, creeks, wetlands, etc.
     Distances for water sources, major water sources or
      designated wetlands do not apply to:
        CFO structures using secondary containment
         barriers
           DNR policy – requirements in addition to rules:
               Must submit site-specific plan with permit
                app. or before populating if no permit
                required
               Liquid manure: barrier must be design by an
                engineer or NRCS
               Below grade storage:
                  Contain 50% of manure stored below
                   grade
               Dry manure storage:
                  No on-site stockpiling outside of structure
                  Contain 10% of manure stored
                  Percolation & design standards do not
                   apply
COMPOSTING
   Mortalities – New DNR rules
  Detailed DNR rules regarding operation and siting-
   DNR recommends that they be contacted before
   operation begins
  Mortalities may be composted off-site at another
   livestock operation without a permit – no restriction on
   distance and do not have to be from the same owner
   or operator
  12 inch bulking agent cover, 6-12 inches between
   carcasses, and 12-24 inch base depending on size
   and number of mortalities
  Must be designed for avg. annual death loss
  Application of compost to other than cropland needs
   DNR approval – pasture?
MANURE APPLICATION
All livestock operations – no pollution

   No manure app. within 200 feet of designated
    area (800 feet if high quality water resource,
    see DNR website for list) unless manure
    injected or incorporated on same date or
    perm. vegetation 50 ft. around water source &
    no manure on 50 ft. area (does not apply to ag
    drainage wells)
   Designated areas are:
         Creeks, rivers, lakes, & designated wetlands
         Known sinkhole
         Cistern, drinking water or abandoned well
         Ag drainage well or surface inlet
         Excludes lakes or ponds with no outlet and which
          are entirely on one landowner’s land
MANURE APPLICATION
Confinement operations – liquid manure

   Must be injected or incorporated in 24 hrs. if
    applied within 750 ft. of residence, bus.,
    church, school or public use area (250 ft. if use
    low pressure spray irrigation - <25 psi, center
    pivot < 9 ft. high)
   Does not apply if waiver from owner of
    residence, etc. or operation has less than 500
    animal units capacity
   Note: DNR considers incidental spillage (on
    endrows, etc.) while injecting as surface
    application
STOCKPILING MANURE
Open feedlot operations – 2006 Iowa legislation

     Stockpile - store solids outside of a feedlot or structure
      or area that drains to a feedlot or structure
     Cannot stockpile:
        Within 400 feet of a designated area or 800 feet of
         a high-quality water resource
        Within 200 feet of a surface tile inlet unless steps
         taken to ensure runoff will not reach the tile inlet
        In a grass waterway or where water pools
        On more than 3% slopes unless measures to
         contain runoff are implemented
     Must remove and land apply solids within 6 months.
     Federal EPA & DNR rules: CAFO’s cannot discharge
      manure from production areas unless the discharge is
      pursuant to an NPDES permit. Definition of production
      area includes stockpiles
STOCKPILING MANURE
   Confinement Operations
  2006 Iowa legislation applies only to
   open feedlot operations
  DNR taking the position that any
   stockpiling of manure from a
   confinement operation with more than
   1,000 animal units must have a total
   containment barrier around the stockpile
   – those with less than 1,000 a.u.’s will be
   handled on a case-by-case basis
CAFO RULES
      Discharge permit (NPDES)

    Federal court ruled no discharge permit required if the
     operation does not discharge
    EPA revising rules following court’s ruling – EPA
     extended deadlines for NPDES permits and nutrient
     management plans to July 31, 2007
    Nutrient management plan part of NPDES permit –
     requirements in addition to MMP
    DNR has withdrawn its proposed rules awaiting
     guidance from federal EPA as a result of the federal
     court decision
    DNR rules not expected to require confinement
     operations in Iowa to have an NPDES permit – unless
     the operation has a spill – not clear if a permit can be
     required even if there is an accidental spill
CAFO RULES
     Discharge permit (NPDES)

  DNR now considering discharge permits for
   confinement operations which have an accidental
   manure spill
  DNR rule states that DNR may evaluate any animal
   feeding operation to determine if:
     Manure from the operation is being discharged into
      a water of the state
     Manure from the operation is causing or may
      reasonably be expected to cause pollution of a
      water of the state; or
     Manure from the operation is causing or may
      reasonably be expected to cause a violation of
      state water quality standards
CAFO RULES
      Discharge permit (NPDES)

    If DNR determines any of these conditions exist, the
     operation shall:
       Apply for an operation permit upon written
         notification from DNR. However, no operation with
         less than 300 animal units (750 swine over 55
         pounds) shall be required to apply for a permit
         unless manure from the operation is discharged
         into a water of the state through a man–made
         manure drainage system or is discharged into a
         water of the state which traverses the operation:
       Institute necessary remedial actions to eliminate
         the conditions upon written notification from the
         department
AIR QUALITY
     Dust – DNR rule

  Must take reasonable precautions to prevent
   particulate matter from becoming airborne “in
   quantities sufficient to create a nuisance”
     Exemptions:
        Farming operations

        Dust from ordinary travel on unpaved
         roads
  DNR interpretation: Dust from construction
   activities on farm operations not eligible for the
   farming operation exemption
AIR QUALITY
      Federal air emissions & Iowa Odor Study

    Sign up period for Air Emissions Consent Agreement
     closed 8/12/05 – EPA currently sending letters of
     acceptance and payment
    For farms that commence operation or expand after
     the signup deadline, producer may consider taking
     steps to comply with federal air emissions laws
       If an operation will emit more than 100# of
        ammonia or hydrogen sulfide in a 24 hour period,
        an operator must file CERCLA and EPCRA reports
        after the operation begins
    DNR Iowa Odor Study
       1,708 readings over 3 years taken on-site, during
        manure application, and at residences, etc.
       1 exceedance of 7:1 level at “separated location”