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EPA to Require CAFOs to Report Under New Clean Water Act Rules

December 6, 2011

EPA is taking comments on a proposed rule that could require all 20,000 concentrated animal feeding operations (CAFOs) in the United States to supply EPA with detailed information regarding their facilities, regardless of whether they are subject to wastewater discharge permits under the Clean Water Act (CWA). EPA is proposing the rule to comply with a settlement agreement it reached with environmental groups. The settlement relates to EPA’s 2008 rule governing wastewater discharges from CAFOs, which the Fifth Circuit struck down in March. See, M. MacCurdy, Fifth Circuit Strikes Down Clean Water Act Rule for Animal Feedlots. EPA says it will finalize the reporting rule in July 2012 and use the information it gathers to develop and improve the CAFO permitting program. EPA is taking comments on the proposed rule until December 20, 2011.

Statutory Background

The CWA prohibits the discharge of pollutants from a point source into waters of the United States without a valid permit, such as a permit under the National Pollutant Discharge Elimination System (NPDES) program.[1] Unlike the typical CWA “point source,” which is a “discrete conveyance,” the CWA expressly includes CAFOs as point sources due to characteristics of the facility as a whole.[2]

EPA has issued detailed rules that define when a facility qualifies as a CAFO. Under EPA’s regulations, an “AFO” is a “lot or facility” where 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 crops, vegetation, forage growth, or post harvest residues are not sustained in the normal growing season over any portion of the lot or facility.[3] An AFO is only a CAFO if it confines more than a threshold number of particular types of animals. Designation as a “Large CAFO” depends exclusively on the number of animals.[4] “Medium CAFOs” confine fewer animals than Large CAFOs and either (1) discharge pollutants into U.S. waters through a man-made ditch, flushing system, or other similar man-made device; or (2) discharge pollutants directly into U.S. waters that originate outside of and pass over, across, or through the facility or otherwise come into direct contact with the confined animals.[5] In certain circumstances, an AFO may also qualify as a CAFO if an authorized entity determines that a facility “is a significant contributor of pollutants to waters of the United States.”[6]

EPA authorizes nearly all states to implement the NPDES program for CAFOs, but those states must impose requirements that are no less stringent than EPA’s regulations. As described below, EPA is currently revising its regulation governing when CAFOs must apply for and obtain NPDES permits.

CWA § 308 authorizes EPA to gather information from any “point source” when that information will assist EPA in fulfilling its obligations under the CWA. EPA has historically used its authority under CWA § 308 to gather information from large categories of point sources to assist EPA in developing and reviewing effluent limitation guidelines. To date, EPA has not used its authority to develop a national inventory of the type, number, and operations of CAFOs. In a September 2008 report, the United States Government Accountability Office (GAO) recommended that EPA conduct a national inventory of CAFOs to inform EPA’s understanding of water quality impacts from CAFOs and to address these impacts under the CWA.

Prior NPDES Rulemaking Activity

EPA developed its proposed CAFO reporting rule in response to one aspect of a settlement agreement with environmental groups relating to EPA’s 2008 rule governing wastewater discharges from CAFOs. EPA released that rule after having already conducted several rounds of rulemaking proceedings focused on when a CAFO has an obligation to obtain an NPDES permit. In 2003, EPA promulgated a rule that required all owners or operators of CAFOs to apply for NPDES permits, unless they could demonstrate that there was no potential to discharge.[7] In response to a lawsuit brought by members of the regulated community challenging this “duty to apply” portion of the rule, the Second Circuit held in 2005, in Waterkeeper Alliance v. EPA,[8] that the CWA does not authorize EPA to require CAFOs to obtain NPDES permits unless there is an actual, rather than a potential discharge.

EPA responded to the Waterkeeper decision with a 2006 proposed regulation that amended the “duty to apply” rule by requiring only CAFOs that “discharge or propose to discharge” to apply for NPDES permits, then supplemented and finalized that rule in 2008 to clarify the circumstances when an NPDES permit is necessary. See M. MacCurdy, EPA Taking Comments on Proposed CAFO Wastewater Discharge Rule; M. MacCurdy, EPA Finalizes Long-Awaited CAFO Clean Water Act Rule. The final rule included a requirement that CAFOs apply for NPDES permits if they discharge or “propose to discharge,” where a CAFO proposes to discharge “if it is designed, constructed, operated, or maintained such that a discharge will occur, not simply such that it might occur,”[9] and imposed penalties on CAFOs that fail to apply for a permit. In March 2011, in National Pork Producers Council v. EPA,[10] the Fifth Circuit struck down EPA’s final rule, holding that EPA had exceeded its authority by purporting to regulate CAFOs without an actual discharge and to impose penalties for the separate violation of failing to apply for a permit.

Settlement Agreement with Environmental Groups

Before the Fifth Circuit issued its decision in National Pork Producers, EPA resolved the environmental groups’ challenges to the rule in a May 2010 settlement agreement. Among other things, the environmental groups alleged that the rule impermissibly allowed CAFOs to determine whether they discharge or propose to discharge, and failed to provide adequate regulatory oversight of the accuracy of those assertions.

The settlement agreement, in part, required EPA to immediately publish guidance “designed to assist permitting authorities in implementing the [CAFO regulations] by specifying the kinds of operations and factual circumstances that EPA anticipates may trigger the duty to apply for permits as discharging or proposing to discharge.” On May 28, 2010, EPA issued its guidance titled “Implementation Guidance on CAFO Regulations – CAFOs That Discharge or Are Proposing to Discharge” to meet part of its obligations under the settlement agreement. The guidance focused on the contours of a CAFO’s “objective assessment” of whether it discharges or proposes to discharge, under then-current regulations, and provided sector-specific guidelines to follow in undertaking this assessment. See M. MacCurdy, EPA Issues Guidance for CAFOs on Scope of Clean Water Act Permitting, Plans Further Rulemaking.

The aspect of the settlement agreement that generated EPA’s reporting rule is a requirement for EPA to propose a rule under CWA § 308 to require all owners or operators of CAFOs to provide EPA with specific information, regardless of whether the CAFOs have or need NPDES permits. The settlement agreement also required EPA to specifically identify the information that it declines to require CAFOs to submit, to explain its reasoning, and to request comment on the excluded items. EPA committed to take final action on the rule by July 13, 2012.

EPA’s Proposed CAFO Reporting Rule

EPA’s proposed CAFO reporting rule[11] complies with the settlement agreement by proposing two options for obtaining information from CAFOs under CWA § 308. EPA asserts that the information will assist EPA in evaluating NPDES program effectiveness, identifying and permitting CAFOs that discharge, conducting education and outreach to promote best management practices, determining and addressing potential sources of water quality impairments, estimating CAFO pollutant loadings, and targeting resources for compliance assistance or enforcement. To justify the reach of the rule to CAFOs that do not discharge wastewater under the CWA, EPA explains that information from these CAFOs will provide an understanding of the number of facilities within each sector that can completely prevent discharges, information that EPA believes might be transferrable to analogous facilities that do discharge.

To achieve these goals, EPA’s proposed rule sets out two possible options for obtaining relevant information. Under the first option, all CAFOs would be required to respond to EPA’s information request, unless the states in which the CAFOs are situated choose to provide the information on the CAFOs’ behalf. The second option would only require information from CAFOs in areas that EPA deems to be “focus” watersheds – i.e., areas where wastewater discharges from CAFOs likely cause water quality concerns. After targeting these focus watersheds, a process that the proposed rule describes in detail, EPA would assess reasonable opportunities to obtain necessary information through public sources and programs at the federal, state, and local levels before determining whether CAFOs must respond to the information request themselves.

Under both options, EPA would require CAFOs to provide the following information: contact information for the CAFO, such as the owner or authorized representative; the locations of the CAFO’s production areas; the CAFO’s NPDES permitting status; the number and type(s) of animals; and the number of acres available for land application. A CAFO that fails to provide the required information would be in violation of the CWA and subject to statutory administrative, civil, and/or criminal penalties.

EPA is declining in the proposed rule to require some of the information that the environmental groups requested, such as the name and address of the owner/operator if the authorized representative is already provided; both the longitude/latitude of the facility and the facility’s street address; the type/capacity of manure storage; the quantity of manure, process wastewater, and litter generated annually; information regarding a nutrient management plan if the CAFO land-applies; alternative uses of manure, litter, and/or wastewater; and information regarding whether and in what quantity the CAFO transfers manure off-site.

For more information regarding this article, please contact Meline MacCurdy or any member of Marten Law’s Water Quality practice group.

[1] 33 U.S.C. §§ 1311(a), 1342.

[2] See id. § 1362(14).

[3] 40 C.F.R. § 122.23(b).

[4] Id. § 122.23(b)(4).

[5] Id. § 122.23(b)(6).

[6] Id. § 122.23(c).

[7] 68 Fed. Reg. 7176 (Feb. 12, 2003).

[8] 399 F.3d 486 (2d Cir. 2005).

[9] 73 Fed. Reg. 70418, 70423 (Nov. 20, 2008).

[10] 635 F.3d 738 (5th Cir. 2011).

[11] 76 Fed. Reg. 65431 (Oct. 21, 2011).

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