CLEAN WATER ACT CAFO RULE

NCBA Staff Contact: 

Tamara Thies, Chief Environmental Counsel
202-347-0228

tthies@beef.org

The Clean Water Act prohibits point sources from discharging pollutants into waters of the United States unless in conformance with a valid National Pollutant Discharge Elimination System (NPDES) permit obtained prior to a discharge.  “Discharge of a pollutant” is defined as “any addition of any pollutant to navigable waters from any point source.”  A point source is defined as “any discernible confined and discrete conveyance, including . . . a confined animal feeding operation . . . from which pollutants are or may be discharged.”  The term “does not include agricultural stormwater discharges and return flows from irrigated agriculture.”

Under the CWA, an Animal Feeding Operation (AFO) is a facility in which livestock or poultry are housed in confinement, and where the following conditions are met:  (1) animals are confined or maintained for a total of 45 days or more in any 12-month period, and (2) crops are not sustained in the normal growing season over any portion of the lot or facility (i.e. animals are not maintained in a pasture or on rangeland.  Concentrated Animal Feeding operations are a subset of AFOs.  In addition to meeting the above conditions, an AFO is defined as a CAFO if it meets minimum size thresholds: AFOs with more than 1000 head of cattle are CAFOs; those with 300-999 head may be CAFOs, if pollutants are discharged from a manmade conveyance or are discharged directly into waters passing over, across, or through the production area; and those with fewer than 300 may be CAFOs if the EPA or permitting authority determines that the facility contributes significantly to water pollution.        

In February 2003, the EPA updated and issued a final rule governing regulation of CAFOs under the NPDES permit program.  After its release, a number of environmental and agricultural organizations separately appealed several aspects of the rule.  The appeals were consolidated and heard by the Second Circuit Court of Appeals on December 13, 2004, and a final decision was issued on February 28, 2005.  The decision (the Waterkeeper decision) overturned several aspects of the 2003 rules, upheld several other challenged provisions, and remanded other issues for further consideration by the EPA.  In June 2006, the EPA released its proposed rule to address the Waterkeeper decision; a final rule is expected to be released in summer 2008.  All newly regulated CAFOs are required to submit to the permitting authority an NPDES permit application and nutrient management plan by February 27, 2009, a deadline which NCBA will work to extend.

The provisions that were either not litigated or were upheld in the final rule of 2003, taken together with the proposed rule issued in June 2006 provide for a comprehensive approach to regulating CAFOs under the Clean Water Act, and ensure that no production area discharges will occur except in the most extreme circumstances.  The regulations impose a zero-discharge limitation on the production area of a CAFO by prohibiting the discharge of pollutants into waters of the United States, except in the event of discharges that might occur during the worst 24-hour storm in a 25-year period. 

In addition, the CAFO rule requires the use of best management practices (BMPs) for the land application and production areas of CAFOs.  BMPs for the production area include daily and weekly inspections, maintenance of depth markers in lagoons to determine design capacity, and on-site recordkeeping.  A BMP for the land application area requires that CAFOs develop and implement a nutrient management plan (NMP) that sets application rates designed to minimize phosphorus and nitrogen transport to surface waters in compliance with applicable technical standards, ensures adequate storage of manure and process wastewater, and prevents direct contact of animals with waters of the United States.  These NMPs must be made available to permitting authorities and the public for review, comment, and hearing prior to issuance of a permit.  After approval by the permitting authority, portions of the NMP must be included as enforceable terms and conditions of the producer’s NPDES permit.

NCBA submitted comments to the EPA on numerous concerns we have with its June 2006 proposed rule.  While it is not possible to describe each concern here, an example of a major concern is the fact that the Waterkeeper decision requires that “terms” of an NMP must be made available for public review and comment prior to issuance of a permit.  A question then becomes:  “What terms must be subject to public review and comment when they must be changed?”  NCBA believes that many of the “terms” referenced in the proposed rule (already in current regulation as required items in an NMP) are in fact “background information” that should not be included as enforceable terms and conditions of a permit, and should not be subject to public review when changed.  Enforceable terms of the NMP should include only the primary areas that EPA determines in the final rule to warrant using the process for “substantial changes” (requires public review and comment) when changes need to be made to a permit.  Changes to “background information” in the NMP should be “minor changes” that would be submitted to the permitting authority in the Annual Report.  One of the “terms” suggested by EPA is the “manure application rate,” a number that is impossible to determine in advance, especially five years in advance which is the term of a permit.  NCBA urged the EPA to consider making the application rate the “formula” a CAFO uses to determine the appropriate amount of manure to apply.  Short of the use of the formula, EPA must allow producers maximum flexibility when making crop and application rate decisions.  We will learn of EPA’s decision on this issue when the final rule is released this summer.        

Sanctions for violation of a CAFO’s NPDES permit include severe civil and criminal penalties for each day of violation.  The basic monetary penalties range up to $32,500 per day.  Stiffer penalties of as much as $50,000 per day, three years’ imprisonment, or both, are authorized for criminal (negligent or knowing) violations of the Act.  A fine of as much as $250,000, 15 years in prison, or both, is authorized for ‘knowing endangerment’, i.e. violations that knowingly place another person in imminent danger of death or serious bodily injury.  Injunctive relief is also available.

While no NPDES permit is required for CAFOs that do not discharge into a water of the United States, NCBA strongly urges owners of CAFOs that are discharging to fix the source of the discharge or seek NPDES permit coverage as soon as possible in an effort to protect yourselves from stiff penalties or injunctions that may result from enforcement actions.  CAFOs will be a target of federal EPA and state environmental agency enforcement actions for the foreseeable future.