Spotlight on CAFOs: EPA Settlement Requires More Info on CAFOs

EPA and a coalition of environmental groups recently settled ongoing litigation related to the regulation of concentrated animal feeding operations (CAFOs). The litigation dates back to 2003, when EPA finally proposed comprehensive regulation of CAFOs, and it centers on what actually constitutes a CAFO. The original Clean Water Act labeled CAFOs as point sources that require a permit to discharge pollution into water, but EPA dragged its feet not just on regulating CAFOs, but on deciding what was and wasn’t a CAFO. In 2003, EPA published a final rule that required all CAFOs to apply for a National Pollutant Discharge Elimination System (NPDES) permit unless they could demonstrate that they have no potential to discharge pollution. In 2005, a federal court invalidated this rule, and the EPA reissued a rule in 2008 that was promptly challenged by environmental groups and industry. That’s the case that has just been settled.

Animal feeding operations (AFOs) are statutorily defined as lots or facilities where animals are kept for more than 45 days in a 12-month period, and where crops or vegetation are not grown during the normal growing season in any portion of the lot or facility. An AFO qualifies as a CAFO if the lot contains a certain threshold number of livestock, such as 1,000 cattle, 2,500 swine above 55 pounds, or 30,000 egg-laying hens. As discussed above, these operations are required to obtain NPDES permits when they propose to discharge, meaning that an unpermitted CAFO could later be required to apply for a permit when it proposes to discharge.

The recent settlement does not change the basic premise that CAFOs are required to obtain NPDES permits. However, it does cover two important aspects:  It requires EPA to publish guidance on the implementation of National Pollutant Discharge Elimination System (NPDES) permits for CAFOs, and it requires EPA to propose a rule to collect more information on these operations.  Significantly, both aspects of this settlement increase oversight of land application of manure, which contributes large quantities of pollution in the form of runoff and seepage into water.

Under the new guidance, EPA provides greater clarity on how to objectively assess whether an AFO is a CAFO. This assessment is an ongoing process; a CAFO cannot ensure compliance with the CWA “at one fixed point in time.” The guidance recommends that CAFOs consider the animal confinement area, the waste storage and handling, the mortality management, and the land application practices when determining whether and how much they discharge. In addition, the assessment must include factors beyond the man-made aspects, including the climatic, hydrologic, and topographic characteristics of and affecting the facility. 

EPA data indicates that some states in the Bay watershed have done very little to update their CAFO NPDES permitting programs.  Of the estimated 1,784 CAFOs in Bay states, only 945—or 53 percent—currently have NPDES permits, and Delaware, Virginia, and West Virginia have not issued any NPDES permits.

The second part of the settlement is equally significant because it will ultimately provide EPA with more information than the agency has ever had on the approximately 20,000 known domestic factory farms in the United States. This information includes the CAFO’s latitude and longitude; the number and types of animals, the type and capacity of manure storage the quantity of manure produced; information about manure use and land application; and whether the CAFO has applied for a NPDES permit. With this information, EPA will be able to better determine whether its regulations sufficiently cover the CAFO universe and to propose new regulations for these operations. 

In the United States, these large CAFO operations dominate animal production, and, by EPA estimates, generate three times the amount of waste that humans do.  In Maryland alone, poultry operations generate 650 million pounds of chicken manure each year, which seep into the Bay and contribute to the summer dead zones and other impacts on the oyster and crab populations.  Yet regulations for CAFOs are a mere fraction of those for human waste treatment facilities. For too long, CAFO operators, including those who run poultry houses throughout the Bay Watershed, have thrown around their economic weight to block every attempt at regulation. This settlement is a welcome spotlight on CAFO activities.