CAFOs: An Introduction to the Clean Water Act and USEPA’s CAFO RegulationsGRL
Environmental groups and regulatory agencies continue to focus their attention on Concentrated Animal Feed Operations, or CAFOs. Recently, three environmental groups requested and received information from the United States Environmental Protection Agency (USEPA) identifying CAFOs operating in 29 states. The information USEPA disclosed to these groups included: (1) production area location, (2) permits, (3) number and types of animals, and (4) acres available for the application of manure, litter and wastewater for the CAFOs. This type of information may be invaluable to persons seeking to bring citizen enforcement suits or other lawsuits against CAFOs.
As a result of a potential wave of lawsuits against CAFOs and USEPA’s focus on CAFO enforcement, it is critical that CAFO operators put themselves in the best position to avoid lawsuits and enforcement actions or to successfully defend against any such suits or enforcement actions. To do so, operators need to: (1) understand the environmental regulations that govern CAFOs; (2) revisit compliance efforts; and (3) develop and strictly comply with an appropriate comprehensive nutrient management plan.
This article provides a brief overview of the environmental laws and regulations applicable to CAFOs. It is not intended to provide and should not be relied on as, legal advice to CAFO operators.
What are CAFOs and AFOs?
The starting point for understanding USEPA’s regulations governing CAFOs is the USEPA’s definitions of key terms. In general, USEPA defines animal feed operations or AFOs as “agricultural operations where animals are kept and raised in confined situations.” See http://www.epa.gov/region7/water/cafo/
According to USEPA, an operation is an “AFO” if:
(1) animals are confined for at least 45 days in a 12-month period; and
(2) there is no grass or other vegetation in the confinement area during the normal growing season.
CAFOs, in turn, are AFOs that meet USEPA criteria focusing on the number, size and type of animals being confined. USEPA breaks down CAFOs into three separate categories: (1) large CAFOs; (2) medium CAFOs; and (3) small CAFOs.
To fall within the large CAFO category, an AFO must confine the number and type of animals set forth by USEPA. There are no other requirements. Examples of large CAFOs include AFOs confining: (1) 1,000 or more cattle or cow/calf pairs; (2) 700 or more mature dairy cows; or (3) 2,500 swine (weighing over 55 pounds). A table reflecting thresholds for large, medium and small CAFOs can be found at: http://www.epa.gov/npdes/pubs/sector_table.pdf. .
To qualify as a medium CAFO, an operation must satisfy the threshold number of animals set forth in the USEPA’s regulations, and also either have:
(1) a manmade ditch or pipe that carries manure or wastewater to surface water; or
(2) animals that come into contact with surface water that passes through the area where the animals are confined.
Examples of the threshold number of animals for medium CAFOs are: (1) 300 - 999 cattle or cow/calf pairs; (2) 200 – 699 mature dairy cows; and (3) 750 – 2,499 swine (weighing over 55 pounds).
To be designated as a small CAFO, an AFO must confine less than the number of animals designated by USEPA regulations and be designated by the permitting authority as a significant contributor of pollutants to the waters of the United States.
Why are Environmental Groups and USEPA Focusing on CAFOs?
USEPA and environmental groups continue to focus on the environmental impacts of CAFOs. This is not surprising. The on-going trend of consolidation in the farming industry has resulted in fewer, but larger farm operations, more intensive animal production, and larger volumes of waste within smaller areas. Consolidation has not only heightened the potential environmental and public health impacts of such animal production operations, but also increased the public’s awareness of the potential impacts of large scale animal production operations.
According to a United States Department of Agriculture estimate, confined livestock and poultry operations generate 500 million tons of manure annually—more than three times the amount of human sanitary waste USEPA estimates is generated annually in the United States. And, states have consistently identified agricultural sources, including CAFOs, as one of the leading contributors to water quality impairment.
There is little doubt that, when improperly managed, CAFOs can be one of the leading causes of surface water impairment. Improperly managed manure and wastewater can reach surface waters through a number of pathways,
including surface runoff from animal confinement areas, manure storage areas, and cropland where manure is applied. Pollutants associated with animal waste are primarily excess nutrients (in particular, nitrogen and phosphorous). When improperly management, pollutants from CAFO operations may cause fish kills, algal blooms, fish consumption advisories, contamination of drinking water and transmission of disease-causing bacteria and parasites associated with food and waterborne diseases.
What Environmental Laws and Regulations Govern CAFOs?
The Clean Water Act
The Clean Water Act (CWA) and regulations enacted pursuant to the CWA are the primary law and regulations directed specifically at CAFOs. The CWA prohibits discharges of “pollutants” into the “waters of the United States” from any “point source” unless such discharge is authorized by a National Pollution Discharge Elimination System (NPDES) permit issued by USEPA or a state who has received permitting authority from USEPA. Under the USEPA’s regulations, all CAFOs that discharge “agricultural waste” or any other “pollutant” into “waters of the United States” must obtain an appropriate NPDES permit.
USEPA defines the term “pollutant” broadly as “dredged spoil, solid waste, incinerator residue, sewage, garbage,
sewage sludge, munitions, chemical wastes, biological materials, radioactive materials, heat, wrecked or discarded equipment, rock, sand, cellar dirt and industrial, municipal, and agricultural waste discharged into water.” Agricultural waste is specifically identified as a “pollutant.”
The term “point source” is defined as any “discernible, confined and discrete conveyance” and generally focuses
on discharging structures or other means of conveyance of pollutants. However, the definition also includes “any . . . concentrated animal feeding operation.” As a result, CAFO operations are, by definition, point sources.
Finally, the term “waters of the United States” is broadly defined by USEPA to include: (1) all waters that
are currently used, were in the past used or may be susceptible to use in interstate or foreign commerce; (2) all interstate waters; (3) all other waters (including intrastate lakes, rivers, streams, intermittent streams, mudflats, wetlands, sloughs or natural ponds) the use, degradation or destruction of which could affect interstate or foreign commerce; (4) tributaries of waters identified above; and (5) wetlands adjacent to waters identified above. Prior converted cropland is specifically excluded from the definition of “waters of the United States.”
USEPA takes a very broad view of the phrase “waters of the United States” which also defines USEPA’s
jurisdiction. In a recent concurring opinion, Supreme Court Justice Samuel Alito explained that Congress has never
defined what it meant by the “the waters of the United States,” and that USEPA and the Army Corps of Engineers have interpreted the phrase “as an essentially limitless grant of authority.” Justice Alito further noted that USEPA “has not seen fit to promulgate a rule providing a clear and sufficiently limited definition of the phrase.” As a result, in many instances it may be difficult for a CAFO operator to determine whether it is, in fact, discharging pollutants into “waters of the United States.” That said, it is safe to assume USEPA will take an extraordinarily broad view of the phrase, and in most instances will conclude that almost every discharge is, in fact, a discharge to “waters of the United States.”
General and Individual NPDES Permits
Two types of NPDES permits may be available for CAFOs: (1) general permits; and (2) individual permits. General permits provide coverage for a group of facilities meeting certain pre-determined requirements. For example, a general permit may be available for all CAFOs operating within a specific state or watershed within a state. General permits may also be available for certain types of CAFOs, e.g., all poultry CAFOs operating within a specified state.
For general permits, the permitting authority issues a final permit available to all CAFOs operating
under the permit. The general permit sets forth the requirements for seeking coverage under the permit and also
specifies when coverage under the permit shall begin. Operators that want to operate pursuant to a general permit first submit a notice of intent to the permitting authority to apply to operate under the general permit.
CAFOs may also operate under individual NPDES permits. Individual permits are issued to a single operation and include requirements designed specifically for the individual CAFO seeking the permit. After an application is submitted, the permitting authority issues a draft permit that is published for public comment. After the required public comment period expires (and after making any revisions to the draft permit), the permitting authority issues an individual NPDES permit to the CAFO.
Current contact information for the Michigan permitting authority is:
Phil Argiroff
Permits Section Chief
Michigan Department of Environmental Quality / Water Resource Division
PO Box 30273
Lansing, MI 48909-7773
Phone: (517) 290-3039
Additional information regarding CAFOs and permitting in Michigan can be found here. Operators should note that Michigan has a general NPDES permit available for CAFOs meeting certain criteria which can be found here. The general permit available in Michigan expires April 1, 2015.
NPDES permits may be requested in Illinois from:
Illinois EPA Bureau of Water Watershed Management Section
1021 N. Grand Avenue East
Springfield, IL 62794-9276
Additional information and application forms for applying for a NPDES permit in Illinois can be found here. Like Michigan, Illinois has a general NPDES permit available for CAFOs meeting certain specified criteria. A copy of Illinois’ general permit can be found here. Illinois’ general permit expires September 30, 2014.
The Nutrient Management Plan
Applicants for NPDES permits must include a wide variety of information about their CAFO operations with their
applications. One key component of the application is a statement that the applicant has developed and will
implement a nutrient management plan. All CAFOs operating under NPDES permits must have a current nutrient management plan for as long as the operation is covered by the permit. Both Michigan’s and Illinois’ general permits require
comprehensive nutrient management plans.
Nutrient management plans must contain best practices to meet the following requirements and all applicable
effluent limitations and standards. Among other things the nutrient management plan must: (1) ensure adequate storage of manure, litter and process wastewater, (2) ensure adequate management of dead animals; (3) ensure clean water is diverted away from the production area; (4) prevent direct contact of confined animals and waters of the United States; (5) identify appropriate site specific conservation practices to be implemented, (5) establish protocols to land apply manure, litter or process wastewater in accordance with site specific nutrient management practices; and (6) identify the
records that must be maintained to document the CAFOs implementation of the nutrient management plan.
CWA Enforcement: USEPA Administrative Enforcement Actions and Citizen Suits
USEPA and other authorized permitting authority may enforce violations of the Clean Water Act. Penalties for violations of the CWA can be substantial. The Act provides for administrative penalties up to $10,000 per day per violation and civil penalties up to $25,000 per day for each violation of the Act or permits issued pursuant to the Act.
In addition to regulatory enforcement, the Clean Water Act has a citizen’s suit provision that authorizes any person to bring suits against persons who violate: (1) any effluent standard or limitation; or (2) an order issued by the USEPA or a State with respect to such standard or limitation. In addition to the civil penalties set forth above for permit violations, the Act permits courts to award the costs of the enforcement litigation (including reasonable attorney and expert witness fees) to any prevailing or substantially prevailing party when the court determines such an award is appropriate.
In 2008, USEPA’s Office of Enforcement and Compliance Assurance established CAFOs as a national enforcement priority, and CAFOs will remain an enforcement priority until at least through 2013 and likely beyond. USEPA’s enforcement strategy involves targeted inspections in geographic areas where CAFOS are having, or may have a serious environmental or human health impact. USEPA has generally targeted large and medium CAFOs that are discharge to waters of the United States.
From FY 2008 through FY 2010, USEPA conducted more than 900 CAFO inspections and completed more than 200 federal enforcement actions against CAFOs. These enforcement actions resulted in CAFOs spending more than $53 million on corrective measures.
What CAFO Operators Need to Do Now
To put themselves in the best position to avoid potential future lawsuits and enforcement actions or to suceessfully defendant agaimnst such suits, in the best position to defend against such actions, CAFOs need to understand and fully comply with USEPA and other laws and regulations governing CAFOs. Grand River Law has the expertise necessary to assist CAFO operators in: (1) auditing or evaluating their current compliance efforts; and (2) obtaining permits necessary to operate a CAFO. Grand River Law also has the expertise required to efficiently and effectively represent clients faced with citizen enforcement actions and regulatory enforcement actions based on violations of the Clean Water Act.