DEPARTMENT OF HEALTH AND ENVIRONMENT 
Water Quality Control Commission
5 CCR 1002-61
COLORADO DISCHARGE PERMIT SYSTEM
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61.17	CONCENTRATED ANIMAL FEEDING OPERATIONS
61.17(1)	SCOPE AND PURPOSE
(a)	The provisions in this section 61.17 provide permit regulations for concentrated animal feeding operations as the result of the revised federal concentrated animal feeding operation (CAFO) regulations that became effective on April 14, 2003.  This section also sets forth the revised compliance dates for nutrient management plans and newly defined CAFOs as reflected in the federal CAFO rule that became effective July 24, 2007.
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61.17(5)	PERMIT APPLICATIONS
(a)	Application Deadlines
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(ii)	The operator of an operation that became defined as a CAFO after June 30, 2004, but which is not a new source, must submit a complete application for a permit as follows where the operation has discharged:
(A)	For newly constructed operations not subject to effluent limitations guidelines, 180 days prior to the time the CAFO places animals on the operation; or
(B)	For operations defined as CAFOs as of June 30, 2004, and that were not defined as CAFOs prior to that date (e.g., existing operations that become defined as a CAFO as a result of this section 61.17), by February 27, 2009; or
(C)	For other operations (e.g., resulting from an increase in the number of animals), as soon as possible, but no later than 90 days after becoming defined as a CAFO; except that if an operational change that makes the operation a CAFO would not have made it a CAFO prior to June 30, 2004, the operator has until February 27, 2009, or 90 days after becoming defined as a CAFO, whichever is later.
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 (c)	Permit Application Requirements (Individual and General Permits) – All new and existing CAFOs shall provide the following to the Division, at minimum, using the application form provided by the Division:
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(xiv)	For CAFOs that must seek permit coverage after February 27, 2009, a certification that a nutrient management plan, that meets the requirements of subsection 61.17(8)(b), has been completed and will be implemented upon the date of permit coverage.
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61.17(6)	Effluent Limitation Requirements for Concentrated Animal Feeding Operations
Except where a variance has been granted pursuant to section 61.12, CAFOs must achieve the following effluent limitations:
(a)	Existing Operations
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(iii)	Effluent Limitations for existing Large Dairy Cow, Cattle, Swine, Poultry, and Veal Calf CAFOs 
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(B)	Land application areas – Discharges from land application areas are subject to the following requirements.  Existing Large Dairy Cow, Cattle, Swine, Poultry, and Veal Calf CAFOs shall attain the limitations and requirements of this section 61.17(6)(a)(iii)(B) by February 27, 2009, or upon the date of permit coverage, whichever is later.
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61.17(8)	Additional Requirements for Concentrated Animal Feeding Operations
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 (b)	Nutrient Management Plan – The permittee shall develop and implement a nutrient management plan by the following deadline:  1) by February 27, 2009 or upon the date of permit coverage for existing source CAFOs, whichever is later; and 2) upon the date of permit coverage for new source CAFOs.  The nutrient management plan shall be made available to the Division upon request for review of its compliance with this subsection 61.17(8)(b).  At minimum, the nutrient management plan shall include best management practices and procedures necessary to implement applicable effluent limitations and standards.  The nutrient management plan must, to the extent applicable:
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61.60	STATEMENT OF BASIS, SPECIFIC STATUTORY AUTHORITY AND PURPOSE:  NOVEMBER 13, 2007 RULEMAKING HEARING, EFFECTIVE DATE OF DECEMBER 30, 2007 – CONCENTRATED ANIMAL FEEDING OPERATIONS REGULATIONS
The provisions of sections 25-8-202(1)(d) and (2) and 25-8-501 to 25-8-504, C.R.S., provide the specific statutory authority for the amendments to this regulation adopted by the Water Quality Control Commission (Commission).  The Commission has also adopted, in compliance with section 24-4-103(4) C.R.S., the following statement of basis and purpose.
BASIS AND PURPOSE
A.	APPLICABILITY
The provisions in Commission Regulation No. 61, 5 CCR 1002-61 (Regulation 61) section 61.17 apply to permits for concentrated animal feeding operations (CAFOs).  
B.	PURPOSE OF AMENDING THE STATE PROGRAM
In response to a February 28, 2005 Second Circuit Court of Appeals decision in Waterkeeper Alliance et al., v. EPA, 399 F. 3d 486 (2nd Cir. 2005) (Waterkeeper), that vacated the requirement for CAFOs to apply for a National Pollutant Discharge Elimination System (NPDES) permit or otherwise demonstrate no potential to discharge, as well as remanding portions of the CAFO Rule back to EPA for further revision and clarification, the EPA finalized a rule change revising certain compliance dates to allow the agency sufficient time to revise the CAFO Rule to comply with this decision.  The February 10, 2006 final rule:  1) extended the date by which operations defined as CAFOs as of April 14, 2003, who were not defined as CAFOs prior to that date, must seek permit coverage from February 13, 2006 to July 31, 2007; 2) extended the deadline for operations which became defined as CAFOs after April 14, 2003, and that are not new sources, to seek permit coverage from April 13, 2006 to July 31, 2007; and 3) extended the deadline by which permitted CAFOs are required to develop and implement NMPs from December 31, 2006 until July 31, 2007. 
Because EPA is continuing to work on a final rule in response to the Waterkeeper decision, and did not complete the rulemaking prior to the July 31, 2007 deadline set by EPA’s February 10, 2006 rule, EPA finalized a second rule change revising all of the above compliance dates from July 31, 2007 to February 27, 2009.
The Commission agrees with the staff recommendation that it is appropriate to revise the deadlines in section 61.17 of Regulation No. 61 to be consistent with the new EPA deadlines.
To this end, the Commission revised certain compliance deadlines according to EPA’s July 24, 2007 rule that will be reflected in the Colorado Discharge Permit System general permit for CAFOs.
C.	DISCUSSION OF AMENDED SECTIONS
Scope and Purpose
The Commission modified section 61.17(1)(a) to make clear that section 61.17 contains the revised compliance dates for NMPs and newly defined CAFOs as reflected in EPA’s July 24, 2007 rule.
Permit Application Deadlines
Sections 61.17(5)(a)(ii)(B) and (C) were revised to reflect the new permit application deadline of February 27, 2009, for newly defined CAFOs.  
NMP Development and Implementation Deadline
The Commission modified section 61.17(5)(c)(xiv) and 61.17(6)(a)(iii)(B) to reflect the new deadline of February 27, 2009, which is the revised date by which CAFOs are required to develop and implement NMPs.  In addition, the Commission modified section 61.17(8)(b) to reflect that the deadline for NMP development and implementation for existing source CAFOs is February 27, 2009 or upon the date of permit coverage, whichever is later.