Animal Waste and Water Quality: EPA Regulation of Concentrated Animal Feeding Operations (CAFOs)

Congressional research reportFeb 16, 2010

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Animal Waste and Water Quality: EPA

Regulation of Concentrated Animal Feeding

Operations (CAFOs)

(name redacted)

Specialist in Resources and Environmental Policy

February 16, 2010

Congressional Research Service

7-....

www.crs.gov

RL31851

CRS Report for Congress

Prepared for Members and Committees of Congress

Animal Waste and Water Quality: CAFOs

Summary

According to the Environmental Protection Agency, the release of waste from animal feedlots to

surface water, groundwater, soil, and air is associated with a range of human health and

ecological impacts and contributes to degradation of the nation’s surface waters. The most

dramatic ecological impacts are massive fish kills. A variety of pollutants in animal waste can

affect human health, including causing infections of the skin, eye, ear, nose, and throat.

Contaminants from manure can also affect human health by polluting drinking water sources.

Although agricultural activities are generally not subject to requirements of environmental law,

discharges of waste from large concentrated animal feeding operations (CAFOs) into the nation’s

waters are regulated under the Clean Water Act. In the late 1990s, the Environmental Protection

Agency (EPA) initiated a review of the Clean Water Act rules that govern these discharges, which

had not been revised since the 1970s, despite structural and technological changes in some

components of the animal agriculture industry that have occurred during the last two decades. A

proposal to revise the existing rules was released by the Clinton Administration in December

2000. The Bush Administration promulgated final revised regulations in December 2002; the

rules took effect in February 2003.

The final rules were generally viewed as less stringent than the proposal, a fact that strongly

influenced how interest groups responded to them. Agriculture groups said that the final rules

were workable, and they were pleased that some of the proposed requirements were scaled back,

such as changes that would have made thousands more CAFOs subject to regulation. However,

some continued to question EPA’s authority to issue portions of the rules. Many states had been

seeking more flexible approaches than EPA had initially proposed and welcomed the fact that the

final rules retained the status quo to a large extent. Environmentalists contended that the rules

relied too heavily on voluntary measures and failed to require improved technology.

This report provides background on the 2002 rules, the previous Clean Water Act rules and the

Clinton Administration proposal, and perspectives of key interest groups on the proposal and final

regulations. It also identifies several issues that could be of congressional interest as

implementation of the revised rules proceeds. Issues include adequacy of funding for

implementing the rules, research needs, oversight of implementation of the rules, and possible

need for legislation.

The revised CAFO rules were challenged by multiple parties, and in February 2005, a federal

court issued a ruling that upheld major parts of the rules, vacated other parts, and remanded still

other parts to EPA for clarification. In October 2008, EPA issued revisions to the rules in response

to the 2005 court decision; for information, see CRS Report RL33656, Animal Waste and Water

Quality: EPA’s Response to the Waterkeeper Alliance Court Decision on Regulation of CAFOs.

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Contents

Introduction ................................................................................................................................1

Livestock Production and Animal Waste......................................................................................2

Animal Waste and the Environment.............................................................................................4

Previous Clean Water Act Regulations.........................................................................................5

Problems with CAFO Regulation ..........................................................................................6

How States Regulate AFOs and CAFOs ................................................................................7

Revising the CAFO Regulations.................................................................................................. 8

Additional Data Considered ..................................................................................................9

Public Response....................................................................................................................9

The Final Revised CAFO Rules ................................................................................................ 10

Environmental and Economic Benefits of the Rules ............................................................ 12

Economic Costs of the Rules............................................................................................... 13

Comparing the Proposed and Final Rules ............................................................................ 13

Reactions to the Final Rules ...................................................................................................... 15

Technology Requirements ................................................................................................... 15

Air Emissions ..................................................................................................................... 16

Resources Needed to Implement the Rules .......................................................................... 17

Other Industry Views .......................................................................................................... 18

Other Views of Environmental Groups ................................................................................ 19

Issues for Congress ................................................................................................................... 20

Contacts

Author Contact Information ...................................................................................................... 21

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Introduction

Agricultural operations often have been treated differently than other types of businesses under

numerous federal and state laws. In the area of environmental policy, agriculture is “virtually

unregulated by the expansive body of environmental law that has developed in the United States

in the past 30 years.”1 Some laws specifically exempt agriculture from regulatory provisions, and

some are structured in such a way that farms escape most, if not all, of the regulatory impact. The

Clean Water Act (CWA), for example, expressly exempts most agricultural operations from the

law’s requirements, while under the Clean Air Act (CAA), most agricultural sources are not

subject to that law’s regulatory programs because most of those sources do not meet the CAA’s

minimum emission quantity thresholds.

One exception to this general policy of exemption from environmental rules is the portion of the

livestock industry that involves large, intensive animal raising and feeding operations. These

facilities, which include concentrated feeding operations and feedlots, are a specialized and

significant part of the livestock production process, largely separate from cropland agriculture.

Certain large animal feeding operations are subject to explicit regulations under the Clean Water

Act (33 U.S.C. 1251 et seq.) that are intended to restrict discharges of animal wastes which could

degrade the quality of the nation’s rivers, streams, lakes, and coastal waters. However, existing

regulations, promulgated in the 1970s, have not been amended to reflect significant structural and

technological changes in some components of the animal agriculture industry that have occurred,

particularly during the last three decades. In addition, manure and waste-handling and disposal

problems from intensive animal production have begun to receive attention as these facilities

increase in size and the effects of these problems reach beyond the industry to affect others in

nearby communities.

In the late 1990s, the Environmental Protection Agency (EPA), the federal agency responsible for

implementing the CWA, initiated a review of the existing CWA rules that govern waste

discharges from large animal feeding operations. The review was part of overall Administration

efforts to address problems of animal waste affecting the environment, including EPA’s response

to a court-ordered schedule to revise several CWA rules. A proposal to revise the existing rules for

animal feeding operations was released by the Clinton Administration in December 2000. After

two years of reviewing the proposal, the Bush Administration issued final revised regulations in

December 2002.

The proposed rules were controversial for a variety of reasons. Livestock and poultry groups, as

well as general agriculture advocacy groups, opposed the rules, arguing that they would be too

costly. Environmental groups generally supported the proposal. States were divided: some

favored a strengthened national approach to regulating animal waste, while many favored greater

flexibility. The final revised rules adopted some elements of the proposal, modified other parts,

and largely retained the structure of the previous rules. The final rules were generally viewed as

less stringent than the proposal, a fact that strongly influenced how interest groups responded to

them.

J.B. Ruhl, “Farms, Their Environmental Harms, and Environmental Law,” Ecology Law Quarterly, vol. 27, no. 2

(2000), pp. 263-349, 265.

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This report describes the 2002 final rules, the background of previous rules, the Clinton

Administration proposal, and perspectives of key interest groups. It also identifies several issues

that could be of congressional interest as implementation of the revised rules proceeds.

The revised CAFO rules discussed in this report were challenged by multiple parties—environmental groups and

agriculture industry groups—and in February 2005, a federal court issued a ruling that upheld major parts of the rules,

vacated other parts, and remanded still other parts to EPA for clarification (Waterkeeper Alliance et al. v. EPA, 399 F.3d

486 (2nd Cir. 2005)), leaving all parties unsatisfied to at least some extent. In October 2008, EPA announced revisions

to the CAFO rules in response to the court’s decision. The revised rules required compliance by February 2009.

EPA’s 2008 revised regulations are not discussed here, but are discussed in CRS Report RL33656, Animal Waste and

Water Quality: EPA’s Response to the Waterkeeper Alliance Court Decision on Regulation of CAFOs.

Livestock Production and Animal Waste

There are an estimated 1.2 million farms with livestock and poultry in the United States,

according to the U.S. Department of Agriculture’s (USDA) 1997 Census of Agriculture. This

number includes all operations that raise beef or dairy cattle, hogs, and poultry and includes both

confinement and non-confinement (i.e., grazing and rangefed) production. Of these, about

238,000 are defined as animal feeding operations (AFOs, or feedlots; see box on “EPA

Definitions of AFOs and CAFOs,” page 3), where livestock and poultry are confined, reared, and

fed. An estimated 95% of these are small businesses: most AFOs raise small numbers of animals

(i.e., fewer than 300). Concentrated animal feeding operations (CAFOs), which confine large

numbers of animals and meet certain pollutant discharge criteria, are a small fraction of all AFOs

(less than 5%), but these largest operations raise more than 40% of U.S. livestock that are reared

in confined facilities. In recent years, livestock raising has become more concentrated in fewer

but larger operations. From 1982 to 1997, the total number of livestock operations decreased by

24%, and total operations with confined livestock similarly fell by 27%. At the same time, the

number of animals raised at large feedlots increased by 88%, and the number of large

feedlots/CAFOs increased by more than 50%.2

U.S. Department of Agriculture, Natural Resources Conservation Service, “Manure Nutrients Relative to the Capacity

of Cropland and Pastureland to Assimilate Nutrients: Spatial and Temporal Trends for the United States,” Publication

no. nps00-579, December 2000, p. 18. Hereafter cited as USDA, “Manure Nutrients.”

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EPA Definitions of AFOs and CAFOs3

An Animal Feeding Operation (AFO) is a facility in which livestock or poultry are raised or 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 (CAFOs) are a subset of AFOs. In addition to meeting the above

conditions, an AFO is a defined as a CAFO if it meets minimum size thresholds (AFOs with more than 1,000 animals

are CAFOs; those with 300-999 animals may be CAFOs, depending on discharge characteristics; and those with fewer

than 300 may be CAFOs in some cases) and either one of these conditions: (1) pollutants are discharged into

navigable waters through a manmade ditch or similar manmade device, or (2) pollutants are discharged directly into

waters of the United States that originate outside of and pass over, across, or through the facility, or otherwise come

into direct contact with the confined animals. (40 C.F.R. Part 122, App. B)

By animal type, swine and poultry operations have seen the most dramatic change in the manner

of production, in terms of animals being raised in confinement at very large animal feeding

operations. From 1982 to 1997, there was a 12-fold increase in numbers of swine raised at large

AFOs, with the greatest geographic concentration now in Oklahoma, Arkansas, North Carolina,

northern Iowa, and southern Minnesota. During the same time period, poultry production at the

largest operations increased 218%, with geographic concentration today in southeastern states,

coastal states of Florida, Georgia, North Carolina, South Carolina; Minnesota and the surrounding

areas; and western coastal states.4

Animal manure can be and frequently is used beneficially on farms to fertilize crops and

add/restore nutrients to soil. However, the changes in animal agriculture, especially the increasing

trend toward raising livestock on large feedlots, have resulted in more extensive problems

associated with using and disposing of animal waste. As livestock production has become denser

and more spatially concentrated, the amount of manure nutrients relative to the assimilative

capacity of land available on farms for application has grown, especially in high production areas

including the central northern states from New York to Nebraska, West Coast states and Arizona,

and scattered areas through the Southeast.

According to USDA, in 1997, 66,000 operations had farm-level excess nitrogen (an imbalance

between the quantity of manure nutrients produced on the farm and assimilative capacity of the

soil on that farm) and 89,000 had farm-level excess phosphorus.5 USDA believes that where

manure nutrients exceed the assimilative capacity of a region, the potential is high for runoff and

leaching of nutrients and subsequent water quality problems. Geographically, areas with excess

farm-level nutrients correspond to areas with increasing numbers of confined animals, and farms

with poultry accounted for about two-thirds of the farm-level excess nitrogen and over one-half of

the farm-level excess phosphorus. Some of these operations can export manure to surrounding

properties. Even accounting for off-site transfers, USDA believes that the number of counties

with excess manure nutrients has increased by approximately 60% since 1982 and that in 1997,

165 counties had county-level excess manure nitrogen, and 374 counties had potential excess

manure phosphorus. Counties with potential animal waste problems tend to be grouped together.

Nearly all of the counties with excess nitrogen were in the Southeast in a region extending from

These definitions were adopted in regulations promulgated in 1974. As discussed later in this report, in 2002 EPA

revised these regulations but retained the definitions of AFOs and CAFOs in the 1974 rule.

Ibid., pp. 44, 46.

In the agriculture context, assimilative capacity is the amount of nutrients taken up and removed at harvest for

cropland and the amount that could generally be applied to pastureland without accumulating nutrients in the soil.

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Arkansas and Louisiana to Virginia. Counties with excess phosphorus were also numerous

throughout the Southeast, as well as in the Northeast (including the Delmarva Peninsula), extreme

Northwest, California, and the Great Plains.6 Poultry operations comprised 82% of the operations

with farm-level excess nitrogen in those counties, and poultry, dairy, and swine operations

comprised nearly 90% of those with farm-level excess manure phosphorus.7

Animal Waste and the Environment

Animal waste, if not properly managed, can be transported over the surface of agricultural land to

nearby lakes and streams. Leaching from manure storage lagoons and percolation through the soil

of fields, where animal waste is applied can contaminate groundwater resources. According to

EPA, the release of waste from animal feedlots to surface water, groundwater, soil, and air is

associated with a wide range of human health and ecological impacts and contributes to the

degradation of the nation’s surface waters.8 Data collected for the EPA’s 2000 National Water

Quality Inventory identify agriculture as the leading contributor to water quality impairments in

rivers and lakes and the fifth leading contributor to impairments in the nation’s estuaries. Animal

feeding operations are only a subset of the agriculture category, but 29 states specifically

identified animal feeding operations as contributing to water quality impairment. 9

The primary pollutants associated with animal wastes are nutrients (particularly nitrogen and

phosphorus), organic matter, solids, pathogens, and odorous/volatile compounds. Animal waste

also contains salts and trace elements, and to a lesser extent, antibiotics, pesticides, and

hormones. Pollutants in animal waste can impact waters through several possible pathways,

including surface runoff and erosion, direct discharges to surface waters, spills and other dryweather discharges, leaching into soil and groundwater, and releases to air (including subsequent

deposition back to land and surface waters). Pollutants associated with animal waste can also

originate from a variety of other sources, such as cropland, municipal and industrial discharges,

and urban runoff.

The most dramatic ecological impacts associated with manure pollutants in surface waters are

massive fish kills. Highly publicized incidents have occurred in nearly every state—from

California to Maryland. In addition, manure pollutants can seriously disrupt aquatic systems by

over-enriching water (in the case of nutrients) or by increasing turbidity (in the case of solids),

processes that can disrupt aquatic ecosystems. Excess nutrients cause fast-growing algae blooms

that reduce the penetration of sunlight in the water column and reduce the mount of available

oxygen in the water, thus reducing fish and shellfish habitat and affecting fish and invertebrates.

EPA’s 2004 Water Quality Inventory report indicates that excess algal growth alone is among the

leading causes of impairment in lakes, ponds, and reservoirs, and that agricultural activities are

among the top sources of lake impairments.

USDA, “Manure Nutrients,” op. cit., p. 85.

Ibid., pp. 75-81.

U.S. Environmental Protection Agency, “Environmental and Economic Benefit Analysis of Final Revisions to the

National Pollutant Discharge Elimination System Regulation and the Effluent Guidelines for Concentrated Animal

Feeding Operations,” December 2002, p. ES-6.

U.S. Environmental Protection Agency, “National Water Quality Inventory: Report to Congress for the 2004

Reporting Cycle,” January 2009, EPA-841-R-08-001, pp. 18-19.

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A variety of pollutants in animal waste can also affect human health. Over 150 pathogens in

livestock manure are associated with risks to humans; these include the bacteria E. coli and

Salmonella species and the protozoa Giardia species. Contact with pathogens contained in

manure during swimming or boating can result in infections of the skin, eye, ear, nose, and throat.

Shellfish such as oysters, clams, and mussels can carry toxins produced by some types of algae

that are associated with excess nutrients. These can affect people who eat contaminated shellfish.

Further, contaminants from manure can also affect human health through drinking water sources

and can result in increased drinking water treatment costs. For example, nitrogen in manure and

liquid waste can be transported to drinking water as nitrates, which are associated with human

health risks and which EPA has identified as the most widespread agricultural contaminant in

drinking water wells. Elevated nitrate levels can cause nitrate poisoning, particularly in infants

(this is known as methemoglobinemia, or “blue baby syndrome”). Nitrate contamination of

private wells that has been linked to nearby livestock and poultry operations has occurred in

several areas, including Delaware, the Maryland Eastern Shore, and North Carolina.

Previous Clean Water Act Regulations

Since it was enacted in 1972, the Clean Water Act’s predominant focus has been the control of

wastewater from manufacturing and other industrial facilities and municipal sewage treatment

plants, termed “point sources,” which are regulated by discharge permits. As point source

pollution has been brought under regulation, uncontrolled discharges in the form of runoff from

“nonpoint sources” have become not only greater in absolute terms, but also proportionally a

larger share of remaining water pollution problems. Nonpoint pollution occurs in conjunction

with surface erosion of soil by water and surface runoff of rainfall or snowmelt from diffuse areas

such as farm and ranch land, construction sites, mining and timber operations, and residential

streets and yards. Most agricultural activities are considered to be nonpoint sources, since they do

not discharge wastes from clearly identifiable pipes, outfalls, or similar “point” conveyances.

Nonpoint sources are not subject to the permit, compliance, and enforcement regime that applies

to point sources.

Under the CWA, most AFOs are considered to be nonpoint sources. However, CAFOs (large

AFOs) are specifically defined in the law as point sources and are treated in a manner similar to

other industrial sources of pollution, such as factories. They are subject to the act’s prohibition

against discharging pollutants into waters of the United States without a permit. In 1974 and

1976, EPA issued regulations defining the term CAFO for purposes of permit requirements (40

C.F.R. §122.23) and effluent limitation guidelines, specifying limits on pollutant discharges from

regulated feedlots (40 C.F.R. Part 412). These regulations cover CAFOs that confine beef and

dairy cattle, swine, poultry (chickens and turkeys), ducks, sheep, or horses.

Discharge permits issued pursuant to the Part 122 rules, under the act’s National Pollutant

Discharge Elimination System (NPDES) permit program, establish limits on the amounts and

types of pollutants that can be released into waterways. Permits are issued for a fixed term, not to

exceed five years, and must be renewed thereafter. NPDES permits may be issued by EPA or a

state authorized by EPA to implement the NPDES program. Currently, 45 states have been

authorized by EPA to administer this permit program, in lieu of EPA (Oklahoma has been

authorized to issue permits for most sources but not for CAFOs). The CWA allows states to

impose additional requirements on permittees and to regulate more conduct and more types of

operations than those governed by the federal NPDES rules. The two basic types of NPDES

permits are individual permits, which are tailored for a specific facility, and general permits,

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issued by a permitting authority to cover multiple facilities with similar characteristics. Because

of the large number of CAFOs, EPA and states increasingly are using general permits to regulate

these facilities.

EPA’s 1974 regulations defined a CAFO based on the length of time animals are confined, the

number of animals confined, and whether or not the facility directly discharges pollutants into

waters of the Untied States. In addition to criteria that define an animal feeding operation (see

box on “EPA Definitions of AFOs and CAFOs,” page 3), the rules for defining a CAFO contained

a three-tier structure based on the number of animal units10 at the facility.

•

The facility is a CAFO if it holds more than 1,000 animal units.

•

If the facility holds from 300 to 999 animal units, the facility is a CAFO if

pollutants are discharged from a manmade conveyance or are discharged directly

into waters passing over, across, or through the site.

•

Animal feeding operations that include fewer than 300 animal units may be

designated as CAFOs if EPA or the permitting authority determines that the

facility contributes significantly to water pollution.

The 1974 regulations nominally imposed a zero discharge limitation on regulated operations,

because they prohibited 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 (termed

the 25-year, 24-hour storm exception). These regulations did not specifically address discharges

to surface water or leaching to groundwater that may occur from animal waste or manure which

are applied to land. Nor did they address odor problems from animal agriculture operations.

These topics, if regulated at all, were subject to varied state and local authority, not federal law or

regulation.

Problems with CAFO Regulation

By the 1990s, a number of problems with the CAFO regulatory system that had existed since the

1970s were widely recognized. These problems limited its effectiveness in preventing

environmental problems from livestock production.

•

Less than 30% of CAFOs had CWA permits—about 4,100 out of the

approximately 12,700 that meet the EPA regulatory definitions described above.

One explanation is the historic emphasis by federal and state permitting

authorities on regulating other large industrial and municipal dischargers rather

than agricultural sources, since most of agriculture is not subject to the act.

Another factor is that the 25-year, 24-hour storm exemption has allowed a large

number of operations to avoid obtaining discharge permits if they discharge

waste only during such a storm event.

•

Some sources went unregulated because the EPA rules did not reflect changes in

animal waste management technology. In particular, the 1970’s rules only applied

As defined by USDA, an animal unit is 1,000 pounds of live weight of any given livestock species or combination.

The term varies according to animal type; one animal is not always equal to one animal unit. An EPA animal unit is

equal to 1.0 beef cattle, 0.7 mature dairy cow, 2.5 pigs weighing more than 55 pounds each, 100 chickens (broilers or

layers), 10 sheep or lambs, or 0.5 horses.

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to poultry operations that have a continuous overflow watering or liquid manure

handling system (i.e., “wet” systems) and thus excluded poultry CAFOs with dry

manure handling systems, which predominate in this sector today. This

exemption allowed more than 2,000 confined poultry operations to avoid

obtaining permits.

•

The federal regulations contained no requirement for plans to establish manure

application rates for fields based on technical standards for nutrient management.

•

CAFO inspections by federal and state regulators and compliance enforcement

activities were limited, often occurring only after citizen complaints or accidental

releases following large rainfall events or equipment failures. In addition,

according to the General Accounting Office (GAO), EPA’s limited oversight of

the states had contributed to inconsistent and inadequate implementation by

states, which are the authorized permitting entities for the large majority of

facilities, CAFO and other.11

How States Regulate AFOs and CAFOs

Since NPDES permits are the CWA vehicle for implementing the CAFO rules, and states carry

out most NPDES permit activities, the nature and scope of state programs for regulating feedlots

is an important consideration in evaluating overall effectiveness of current efforts. An EPA

compendium of state programs for managing animal feedlots illustrates the variations and

complexity of state activities. 12 According to EPA, state regulation of AFOs and CAFOs often

involves both federal and state laws and regulations and several different state-level agencies,

with numerous variations in approaches, requirements, and jurisdiction. Forty-five states are

authorized by EPA to implement the base NPDES program to regulate CAFOs. As of 2002, seven

states regulated CAFOs exclusively under this authority, while 32 states administered a state

NPDES CAFO program in combination with some other state permit, license, or authorization,

such as a construction or operating permit. Six states, while generally authorized to implement the

NPDES program, had chosen to regulate CAFOs under separate state non-NPDES programs.

Further, five states were not authorized to administer the NPDES program, and EPA retained

responsibility to issue CAFO permits. In three of these states, EPA permits were the sole CAFO

regulation, and the other two imposed some form of non-NPDES program requirement, in

addition to the federally-issued permit. Substantively, state programs varied widely in defining

what is a CAFO (hence, the scope of the regulatory program), permit conditions and siting

requirements, details for waste management plans (if required), and enforcement procedures.

Because of the wide variability, it was difficult to say whether the glass was “half-full” or “halfempty” with regard to the adequacy of state regulatory activities. EPA concluded that state nonNPDES AFO programs are often more stringent than NPDES programs and often extended

coverage to smaller classes of facilities. Further, according to EPA, the implementation of state

non-NPDES programs often received more state agency attention than implementation of NPDES

U.S. General Accounting Office, “Livestock Agriculture: Increased EPA Oversight Will Improve Environmental

Program for Concentrated Animal Feeding Operations,” January 2003, GAO-03-285, p. 7.

U.S. Environmental Protection Agency, Office of Wastewater Management, State Compendium, Programs and

Regulatory Activities Related to Animal Feeding Operations. May 2002. Another report presents a detailed comparison

of features and requirements of programs in seven states. See, Environmental Law Institute, State Regulation of Animal

Feeding Operations, January 2003, 80 p.

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programs, with several states actively choosing not to use NPDES permits. However, the GAO

found inconsistent and inadequate implementation of CWA requirements by states that had been

authorized to administer CAFO permitting. Permits did not meet all EPA requirements, and

several states evaluated by GAO did not issue any type of permit to CAFOs, thereby leaving

facilities and their wastes essentially unregulated. 13 In revised CAFO rules proposed in December

2000 (discussed below), EPA said that the number of non-NPDES permits issued to AFOs greatly

exceeded the number of NPDES permits issued—by nearly 20 times. Many would not meet the

standards for approval as NPDES permits, EPA said, and because they were not NPDES permits,

none met the requirement for federal enforceability.14

Revising the CAFO Regulations

In the early 1990s, environmental groups sued EPA for failure to revise existing Clean Water Act

permit regulations for a number of industry categories and failure to adopt new rules for

unregulated industries. Settlement of that lawsuit15 put EPA under a court-ordered schedule to

issue revised or new Clean Water Act rules for CAFOs and more than a dozen other industries.

Under the consent decree, which has been modified several times, revised CAFO rules were to be

proposed by December 2000 and finalized by December 15, 2002.

In response to this deadline and as part of broader efforts by EPA and the U.S. Department of

Agriculture to address water quality problems associated with animal feeding operations, the

Clinton Administration proposed rules to modify the existing CAFO regulations in December

2000.16 To address shortcomings in the existing regulations, the rules proposed to clarify the

conditions under which an AFO is a CAFO and is, therefore, subject to permit requirements. It

proposed to increase the number of facilities required to obtain Clean Water Act permits and to

restrict land application of wastes.

EPA proposed and asked for public comment on two alternative approaches for defining CAFOs.

The first would retain the existing three-tier structure, but with modifications and clearer criteria

regarding the middle tier (1,000 Animal Units or more would be CAFOs, operations with 300 to

999 Animal Units would be CAFOs but could be exempt from permits by demonstrating no

potential to discharge wastes, and fewer than 300 Animal Units would be CAFOs only if

designated by the permit writer). The second option proposed a two-tier structure (500 Animal

Units or more would be defined as CAFOs, fewer than 500 Animal Units would be CAFOs only

if designated by the permit writer). EPA estimated that under the proposed two-tier structure,

25,590 operations would need a permit, compared with 12,700 under existing regulations. Under

a revised three-tier structure, 31,930 operations would need a permit, while an additional 7,400 in

the middle tier were potentially affected, but these operations were expected to be able to avoid

permitting by certifying that they are not CAFOs.

In addition, permitting requirements would be extended to some livestock categories not

previously regulated (i.e., dry-manure poultry operations and stand-alone immature swine and

heifer operations). EPA also proposed to require that permitted facilities develop and implement

GAO, op cit., pp. 7-11.

66 Federal Register 2969, January 12, 2001.

Natural Resources Defense Council v. Reilly, U.S. District Court, D.C., Civ. Action No. 89-2980, April 23, 1991.

66 Federal Register 2959, January 12, 2001.

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site-specific plans which identify the amount of nutrients generated at the facility and determine

rates for the application of the waste to agricultural land. Finally, it proposed a co-permitting

system, in which permits would cover not just the grower or farmer, but also corporate owners

(integrators) who contract out to farmers to raise the animals or poultry and exercise substantial

operational control over the facility.

There was a 120-day public comment period following publication of the proposal in the Federal

75-day public comment period, through July 30. EPA held nine public hearings to review the

proposal in the spring and early summer of 2001. Because of the change in Administrations

immediately following release of the proposal, new appointees at EPA undertook a detailed and

thorough review of the proposal and public comments on it before releasing final rules in

December 2002.

Additional Data Considered

In November 2001, EPA published a Federal Register Notice of Data Availability (NODA) in

which the Agency described information, data, and material received during the public comment

period and subsequently concerning rule-related issues such as cost and economic impact and

technology options for managing animal waste.17 EPA said it was considering changes to certain

aspects of the proposed CAFO rules. The Agency did not formally re-propose the rules, but it

outlined the types of changes being considered and sought additional public comment on the

specific data and issues identified in the Notice. For example, EPA said it was considering

alternative definitions of what type of feedlot is a “concentrated” feedlot for certain types of

livestock operations (which could result in fewer numbers of facilities being subject to regulation

than under the Clinton proposal) and also was considering some alternatives that would give

states the flexibility to “opt -out” of the federal regulatory program.

In July 2002, EPA published a second Notice of Data Availability that discussed three additional

issues for which the Agency was considering changes to the proposal.18 The issues were: (1)

potential new regulatory thresholds for chicken operations with dry litter management practices

that would lower the number of facilities defined as CAFOs; (2) potential alternative performance

standards to encourage CAFOs to voluntarily install new wastewater treatment technologies

and/or management practices; and (3) discussion of new financial data that EPA was considering

to evaluate the economic effects of regulatory options.

Public Response

The Clinton Administration-proposed rules were highly controversial for many reasons.

Livestock and poultry groups, as well as general agriculture advocacy groups, opposed the rules,

arguing that they would impose excessive economic burden on farmers and ranchers. They also

criticized the proposal for taking a uniform national approach to problems that they asserted were

better suited to management by state and local agencies. Environmental groups generally

supported the proposal (while arguing that parts should be strengthened), based on their concern

that excessive nutrients and other contaminants in animal waste are polluting waterways and

66 Federal Register 58556, November 21, 2001.

67 Federal Register 48099, July 23, 2002.

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groundwater. Although lengthy agency review of public comments on a regulatory proposal is not

unusual, many in these groups feared that EPA was planning to weaken the Clinton proposal,

based on discussion in the first and second NODAs. States were divided on the rules: some

favored a uniform national approach to regulating animal waste pollution from the livestock

industry based on strengthened EPA rules, while many favored greater state flexibility. States

were concerned about diverting resources to CAFO permitting and thus undermining other water

quality programs. Congress expressed some interest in the revised rules: in May 2001, a House

Transportation and Infrastructure subcommittee held an oversight hearing on the proposal. The

hearing focused on impacts and costs on animal agriculture producers, especially small producers.

The Final Revised CAFO Rules

After nearly two years’ review of the Clinton Administration proposal, EPA issued final revised

CAFO regulations on December 11, 2002. The new rules were published in the Federal Register

on February 12, 2003, with an effective date of April 14, 2003.19 The regulations included a

number of elements of the proposal and a number of modifications, but retained much of the

regulatory structure in the rules issued in the 1970s. Highlights include the following:

•

Definition of a CAFO. The definition of what is a CAFO remains the same,

unchanged from the prior rule (see box on “EPA Definitions of AFOs and

CAFOs,” page 3). Also, the revised rules retain the previous three-tier structure

for defining a CAFO, based on the number of animals housed at the facility. The

rules retained the size thresholds for most of the regulated categories. 20 As was

proposed, the final rules eliminated use of the term “animal unit” equivalents for

each animal sector and replaced it with the less confusing concept of numbers of

animals in each sector.

•

Duty to apply. The revised rules adopted an explicit duty for all CAFOs to apply

for an NPDES permit, as EPA had proposed. Thus, the rules removed a

permitting exemption in the previous rules that had allowed facilities which meet

the definition of a CAFO, but claim to only discharge in the event of a large

storm, to avoid applying for permits. However, a permit exemption can be

claimed by a facility that can certify that it has no potential to discharge waste

into waters of the United States.

•

Poultry. As noted above, the previous rules only applied to poultry operations

that have a continuous overflow watering or liquid manure handling system. The

final rules included revisions, as proposed, to clarify applicability of the

regulations to all types of poultry operations, regardless of the type of manure

handling system. The inclusion of all poultry operations, regardless of manure

handling system, brought in all large broiler and dry layer feeding operations and

added an estimated 2,198 operations to the number of regulated facilities.

U.S. Environmental Protection Agency, “National Pollutant Discharge Elimination System Permit Regulation and

Effluent Limitation Guidelines and Standards for Concentrated Animal Feeding Operations (CAFOs); Final Rule,” 68

Federal Register 7175-7274, February 12, 2003.

The threshold for duck operations with dry manure-handling systems was changed from 5,000 to 30,000 animals for

large operations, thus reducing the number of regulated operations from 157 under the previous rules to 25 under the

final rules.

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•

Immature animals. The final rules also regulated facilities that confine standalone immature animals (swine and heifers), which previously were not covered

separately. As a result, 488 of these operations were thus subject to regulation.

•

Operations required to apply for a permit. EPA estimated that under the

previous rules, 12,813 animal feeding operations were subject to regulation and

should have had NPDES permits. The total included 8,438 large facilities (more

than 1,000 animals) and 4,375 medium facilities (300 to 999 facilities) which

either were defined as CAFOs by size or discharge characteristics, or had been

designated as CAFOs by permitting authorities. By adding all poultry operations

and stand-alone, immature animal operations, the final rules were estimated to

cover an additional 2,554 operations (15,437 facilities in total, consisting of

10,754 large and 4,613 medium operations).21 The total was 34% of all large and

medium animal feeding operations and about 19% of operations of all size in the

United States, based on USDA’s 1997 Census of Agriculture.

•

Required performance standard. Also as described above, the previous rules

prohibited discharges from a CAFO except in the event of wastewater or manure

overflows or runoff from a 25-year, 24-hour rainfall event. The proposed and

final rules retained this design criterion without change. However, under the final

rules, new sources in the swine, poultry, and veal categories must meet a more

stringent design standard: storage structures must be designed and maintained to

contain the runoff from a 100-year, 24-hour storm event. The final rules included

a provision that was not in the proposal allowing existing CAFOs to request

permit limits based on site-specific alternative technologies established by the

permitting authority, to encourage innovative technologies, according to EPA.

Under the new rules, alternative technology limits were required to provide

pollutant control equal to or better than under the baseline rules.

•

Best Management Practices. The revised rules included Best Management

Practices (BMPs) for land application and animal production areas. BMPs are

measures or methods that have been determined to be the most effective,

practical means of preventing or reducing pollution from nonpoint sources. The

requirements for land application areas were to ensure the proper application of

manure, litter, and other process wastes to land that the CAFO controls. They

included measures such as specified setbacks from streams, vegetated buffers,

and determination of application rates, to minimize the transport of phosphorus

and nitrogen from the field to surface waters, in accordance with technical

standards of the permitting authority. BMPs for animal production areas also

were specified, including daily and weekly inspections, maintenance of depth

markers in lagoons and other impoundments to determine the design capacity,

and on-site recordkeeping.

•

Nutrient management plans. As part of the land application requirements, the

final rules required a CAFO operator to develop a plan for managing the nutrient

content of animal manure and process wastewater. The previous rules had no

such requirement. The plan must be maintained on-site and available on request

U.S. Environmental Protection Agency, “Development Document for the Final Revisions to the National Pollutant

Discharge Elimination System Regulation and the Effluent Guidelines for Concentrated Animal Feeding Operations,”

December 2002, pp. 9-3 to 9-15.

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to EPA or the state, but it is not considered part of the facility’s permit. Under this

plan, manure is to be analyzed annually for nitrogen and phosphorus content, and

land application areas are to be analyzed every five years for phosphorus content,

to evaluate nutrient build-up in excess of amounts that crops can utilize.

•

Compliance schedule. The final rules established time frames for compliance.

Operations defined as CAFOs under the previous rules were expected to already

have applied for permits and, presumably, are in violation of the rules if they had

not done so. Operations newly defined as CAFOs under the revised rules, such as

dry litter poultry operations, were to apply for permits by April 13, 2006. 22 A

new source must seek permit coverage 180 days prior to the date it commences

operation. CAFOs that are existing sources were required to develop and

implement nutrient management plans and other land application requirements

by December 31, 2006. That date was based on EPA’s belief that, by then, there

would be sufficient technical experts available to develop and implement nutrient

management plans. 23 The land application and nutrient management plan

requirements apply immediately to new sources. States with existing NPDES

permitting programs must adopt state rule revisions to reflect the federal rules

within one year. States which needed to amend or enact a statute to conform with

the rules were required to make needed rule changes within two years (by April

13, 2005).

•

Proposed provisions not in the final rules. Finally, the final rules omitted

several provisions of the proposal. In addition to not adopting reduced thresholds

for defining a CAFO, EPA decided not to include requirements for co-permitting

of entities that exercise “substantial operational control” over the CAFO, require

zero discharge to groundwater beneath the CAFO production area where there is

a direct hydrologic connection to surface water, or require that permit nutrient

plans be developed by a certified expert and be re-certified every five years.

Environmental and Economic Benefits of the Rules

A number of environmental and human health benefits were expected to result from requirements

of the final rules, according to EPA. These include recreational and non-use benefits from

improved water quality in freshwater rivers, streams, and lakes; reduced fish kills; reduced nitrate

and pathogen contamination of sources of drinking water; reduced public water treatment costs;

and reduced livestock mortality from contamination of livestock drinking water.

EPA quantified the pollutant reductions associated with the final rules. It estimated that nutrient

loadings (nitrogen and phosphorus) will be reduced by 23% (166 million pounds per year),

sediment loadings by 6% (2.2 billion pounds), and metals discharges by 5% (one million pounds),

compared with pre-regulation baseline pollutant loadings.24 In contrast, the proposed rules

estimated pollutant reductions of 179 to 187 million pounds of nutrients, 75 to 77 billion pounds

EPA subsequently extended this date to February 27, 2009. See 72 Federal Register 40245, July 24, 2007.

EPA also extended the deadline by which permitted CAFOs were required to develop and implement nutrient

management plans to February 27, 2009. 42 Federal Register 40245.

68 Federal Register 7239, Table 7.2, February 12, 2003.

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of sediment, and 42 to 44 million pounds of metals (depending on which regulatory option was

finalized).25

EPA also estimated that the environmental benefits of the final rules, such as improved surface

water quality and reduced water treatment costs, will result in annual estimated economic benefits

ranging from $204 to $355 million (2001 dollars).26 Annual benefits of the proposed rules were

estimated to be $146 to $163 million (1999 dollars).

Economic Costs of the Rules

The proposed and final rules also presented EPA’s estimates of the costs of revised regulation.

EPA estimated that the total incremental compliance costs for CAFOs is $326 million annually

(pre-tax, 2001 dollars), consisting of $283 million for large CAFOs, $39 million for medium

CAFOs, and $4 million for facilities that are designated as CAFOs. Federal and state permitting

authorities were projected to incur $9 million per year in costs to implement the rules. Estimated

annual incremental costs of the proposed rules were $831-$930 million for CAFO operators, plus

$6-8 million for permitting authorities (1999 dollars).

EPA also evaluated financial effects in terms of the number of operations that will experience

affordable, moderate, or stress impact because of the rules. Overall, EPA concluded that the rules

are economically achievable. For the veal, dairy, turkey, and egg laying sectors, no facility

closures are projected. In the beef cattle, heifer, hog, and broiler sectors, EPA’s analysis showed

that some existing facilities will experience financial stress. An estimated 285 facilities, or 3% of

all large CAFOs, might be vulnerable to closure, according to EPA (3% of affected beef CAFOs,

9% of heifer operations, 5% of hog operations, and 1% of broiler operations). 27

EPA estimated that about 6,200 facilities affected by the rules are small businesses, which the

Small Business Administration defines in terms of average annual receipts (or gross revenue),

accounting for 40% of all affected facilities. Among large CAFOs, about 2,330 operations are

small businesses; most are in the broiler sector. Among medium CAFOs, about 3,870 operations

are small businesses (accounting for the majority of operations in this size category), and most are

in the hog, dairy, and broiler sectors. EPA’s analysis further estimated that about 262 of these

operations (4% of all affected small business CAFOs) are vulnerable to closure as a result of the

new requirements. They are predominantly beef cattle operations.28

Comparing the Proposed and Final Rules

One obvious difference between the proposed and final rules was retention of the previous

definition and numerical categorization of regulated facilities. Commenting on the proposal’s

options for either a two-tier structure or a modified three-tier structure, EPA said that it agreed

with commenters, including many states, that changing to a two-tier structure would be very

66 Federal Register 3116, January 12, 2001.

U.S. Environmental Protection Agency, “Environmental and Economic Benefit Analysis of Final Revisions to the

National Pollutant Discharge Elimination System Regulation and the Effluent Guidelines for Concentrated Animal

Feeding Operations,” December 2002, pp. 11-3 -11-4.

68 Federal Register 7245-46, February 12, 2003.

68 Federal Register 7246-47, February 12, 2003.

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disruptive to ongoing programs. EPA also said that it did not adopt the proposed new set of

conditions for determining when a facility in the middle of the three-tier structure (300 to 999

animals) is a CAFO because doing so would not necessarily have improved the clarity or

effectiveness of the rules, as intended, but would have caused substantial permitting burdens and

imposed costs on essentially all operations above 300 animals. 29

The previous discussion concerning costs and benefits of the revised rules partially illustrates

difficulties in comparing impacts of the proposed and final rules. Some differences in EPA’s

discussions of the two are notable, but they do not necessarily affect outcomes. For example, the

2000 proposed rules stated that of the 12,700 medium and large CAFOs that should have been

subject to permits under the previous rules, permits had been issued for approximately 2,270

facilities. In the final rules, while continuing to acknowledge that few operations had permits,

EPA stated that the number of permitted facilities as of 2002 was 4,100.30

The Notice accompanying the final rules stated, “As a result of today’s action, EPA is regulating

close to 60 percent of all manure generated by operations that confine animals.”31 However, the

proposed rules stated that an estimated 49% of total manure would be controlled by retaining a

CAFO definition threshold of 1,000 animals (as adopted in the final rules) and would increase to

64% to 72% under the regulatory options that EPA co-proposed in December 2000 which would

have adopted a definition with a lower threshold.32 The differences in estimated pollutant

reductions and amounts of manure controlled under the proposed and final rules were not fully

explained. Concerning amounts of manure controlled, part of the difference between the two

could be explained by the final rules’ inclusion of more poultry operations and stand-alone,

immature animal operations than under the previous rules—except for the fact that the proposed

rules also included these additional operations.

In comparing impacts of the revised requirements to a baseline, neither the proposed nor the final

rules were precisely clear about what baseline was utilized. Consequently, evaluating impacts of

changes is difficult. The baseline could be assuming full compliance and control of pollutant

runoff from feedlots by the 12,700 operations covered by the previous rules. Alternatively, the

baseline could be the partial compliance, and corresponding current water discharges, resulting

from that fact that 30% or less of covered facilities are actually operating under NPDES permits.

If the baseline assumed complete current compliance (which is not occurring, in fact), then the

incremental pollutant reduction improvements of the revised regulatory requirements would be

less than if the baseline assumed partial compliance by currently regulated facilities. There is

some indication that, for estimating environmental improvements, the baseline of the proposed

rules was current partial compliance with previous rules,33 while in the final rules, the baseline

was assumed to be complete compliance with the existing rules. That might explain the large

Ibid., 7189-7190.

Compare 66 Federal Register 2969, January 12, 2001, with U.S. Environmental Protection Agency, “Development

Document for the Final Revisions to the National Pollutant Discharge Elimination System Regulation and the Effluent

Guidelines for Concentrated Animal Feeding Operations,” December 2002, at p. 9-12.

68 Federal Register 7180, February 12, 2003.

66 Federal Register 2986, January 12, 2001.

However, in the proposed rules, EPA stated that, for purposes of estimating compliance costs, it assumed that all

CAFOs subject to revised regulations are currently in compliance with the existing regulatory program, even though it

recognized, as a practical matter, that this is not true. EPA did not estimate the additional costs of complying with

existing requirements, because it did not consider those costs part of the incremental costs of revised rules. 66 Federal

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estimated differences in pollutant reduction between the two; see, for example, the above

discussion about estimates of reduced sediment loadings and metals discharges.34

These differences are not satisfactorily explained or addressed in the final rules, but they are

significant for evaluating the regulation. In response to inquiries about these issues, an EPA

official indicated that, during review of the rules, the Agency completed more extensive modeling

of previously available data to assess impacts, including disaggregation for better geographic

treatment to address differences in climate, soil type, and conservation practices, and that the

improved analysis contributed to the apparent differences between the proposal and final rules.35

Reactions to the Final Rules

The final rules were generally viewed as less stringent than the December 2000 proposal, a fact

that strongly influenced how interest groups responded to them. Agriculture industry groups36

indicated that they believed the final rules were workable, and they were generally pleased that

some of the proposed requirements were scaled back, including reduced definition thresholds and

co-permitting of corporate owners of livestock as well as of farmers who actually raise the

animals. However, some continued to question EPA’s authority to issue portions of the rules.

Many states, too, had been seeking more flexible approaches than EPA originally proposed, and

thus welcomed the fact that the final rules retained the status quo to a large extent. Impacts on

states will vary, depending on the changes in existing state programs needed to comply with the

new requirements, however. Both industry and states were greatly concerned about adequacy of

resources to implement the requirements. Environmentalists contended that the final rules relied

too heavily on voluntary measures to control runoff, instead of mandating strict compliance with

national standards, and failed to require improved technology. In the weeks immediately after

publication of the rules, environmental groups and several agriculture industry groups filed legal

challenges to the rules in a number of different federal courts.

Technology Requirements

Environmental groups criticized EPA for omitting a provision in the proposal that would have

required zero discharge from the CAFO’s production area to ground water that has a direct

hydrologic connection to surface water. A hydrologic connection refers to the interflow and

exchange between surface impoundments such as lagoons and surface water through an

underground corridor or ground water. The proposal would have required CAFOs to determine

US. Environmental Protection Agency, “Environmental and Economic Analysis of Proposed Revisions to the

NPDES Regulation and the Effluent Guidelines for Concentrated Animal Feeding Operations,” January 2001, p. 4-18.

Telephone conversation, Paul Shriner, U.S. EPA, Office of Water, Office of Science and Technology, March 3,

2003.

On most issues affecting agriculture, there often is a subset of interests most affected and likely to express views on

legislation, regulations, etc. Their views may differ or coalesce on a given issue. The CAFO rules discussed here were

of considerable interest to groups representing livestock and poultry producers, such as the National Chicken Council,

Port Producers Council, and National Cattlemen’s Beef Association, as well as groups that represent agriculture as a

whole, such as the Farm Bureau. In EPA’s discussion of the rules (e.g., the Federal Register Notice accompanying the

final rules), when referring to “industry,” it did not distinguish among these groups, nor does this CRS report. It

appears that, at least in EPA’s judgment, these groups generally reflected similar interests and concerns on the CAFO

rule issues. Other agriculture industry groups, representing interests of cropland producers, for example, had limited

involvement in these rules.

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whether such a direct hydrologic connection exists and, if so, to monitor ground water up gradient

and down gradient to ensure that zero discharge to ground water is achieved. The proposal also

would have adopted a stringent zero discharge standard for regulated swine, veal, and poultry

CAFOs, with no exception for chronic storm overflows. This issue was a key concern to

environmentalists who pointed out that rural areas, where most CAFOs are located, often rely on

ground water for drinking water supplies. In addition, they criticized the final rules for omitting

proposed special requirements that would have restricted land application of wastes to frozen,

snow-covered, or saturated soil. In the final rules, EPA explained that the proposals were rejected

because pollutant discharges to surface water via ground water or as a result of application to

frozen or saturated soil are highly dependent on site-specific variables, such as climate, distance

to surface water, etc. Thus, a national technology-based standard is inappropriate, according to

EPA.

Further, environmentalists asserted that the final rules failed to require performance standards

consistent with the best available technology. The rules perpetuated that status quo, they said,

because they do not require phaseout of the use of lagoons. Many environmental advocates

believe that lagoons are outmoded technology that can pollute both surface and ground water as a

result of weather events, human error, and system failures and, thus, are an unacceptable risk to

public health and the environment. Likewise, advocates believe that sprayfields, where waste is

sprayed onto crops or pastureland, pose significant risks, and many support the position that

manure waste that is land applied should be injected or incorporated into the soil.

Industry groups, on the other hand, disputed environmentalists’ belief that stringent national

standards requiring zero discharge would encourage development of new technologies. In

industry’s view, the previous rules’ zero discharge standard (even with the allowance for chronic

storm event discharges) had virtually ensured the use of lagoons and holding ponds to store

CAFO wastewater on site. Industry urged EPA to adopt final rules that would encourage

alternative technologies. They argued that CAFOs—like other point sources regulated under the

Clean Water Act—should be allowed to treat wastes to an established level of quality that does

not impair lakes or streams and to release treated wastes to the environment. The final rules

appeared to respond to industry’s concern in this area: while retaining the previous rules’ nominal

zero discharge standard, they also allowed a CAFO to request a permit based on site-specific

alternative technologies established by the permitting authority that are equivalent to the baseline

standard or better. EPA believed that this flexibility would encourage innovative technologies, but

environmentalists believed that allowing CAFOs to “treat and release” animal waste is weaker

than the previous rules and effectively allows alternative technologies to have a discharge that

may harm the environment.

Air Emissions

Environmentalists also were disappointed that the final rules did not address or restrict emissions

of air pollutants. AFOs can emit various pollutants, including ammonia, hydrogen sulfide,

methane, volatile organic compounds, and particulate matter. Environmental impacts can vary,

depending on the design and operation of the facility. Scientists generally believe that emissions

present a number of issues of environmental concern but not a large public health problem,

although more research on public health impacts is required. Some air emissions are important on

a local scale (hydrogen sulfide, odor), and others are significant nationally or globally (ammonia,

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which can be redeposited to earth and contribute to water quality degradation, and the greenhouse

gas methane).37 Industry groups pointed out that water pollution control technologies, which were

the subject of the CAFO rules, do not address air emissions and that proven air abatement

technologies are needed before adopting regulations.

A 2002 National Research Council report recommended developing improved approaches to

estimating and measuring emissions of key air pollutants from AFOs and initiating long-term

coordinated research by EPA and USDA with the goal of eliminating release of undesirable air

emissions. Nitrogen emissions from production areas are substantial, the report found, and control

strategies aimed at decreasing emissions should be designed and implemented now. For example,

implementation of feasible management practices, such as incorporating manure into soil, that are

designed to decrease emissions should not be delayed while research on mitigation technologies

proceeds.38 In the Notice accompanying the final rules, EPA estimated that the rules would not

significantly alter ammonia emissions from CAFOs but will reduce hydrogen sulfide emissions

and methane emissions by 12% and 11%, respectively.39

Resources Needed to Implement the Rules

Adequacy of resources to implement the revised regulations is an important issue for the animal

agriculture industry and states, and these groups focus on the need for federal support to meet the

new federal requirements. Livestock operators face costs for manure handling requirements,

developing and implementing nutrient management plans, and record-keeping. A key federal

financial assistance program for producers is the Environmental Quality Incentives Program

(EQIP), administered by the Natural Resources Conservation Service of USDA. EQIP provides

technical assistance, cost sharing, and incentive payments to assist livestock and crop producers

with conservation and environmental improvements using land management and structural

practices, such as site-specific nutrient management or animal waste management facilities. In the

2002 farm bill (P.L. 107-171), Congress increased funding for EQIP from $200 million to $1.3

billion per year by FY2007. Spending for this program is mandatory. Sixty percent of the

available funding was to be targeted at practices relating to livestock production. EQIP funds

could be used to cover 75% of the cost of measures to control manure runoff, and, under the 2002

farm bill amendments, livestock operators of all sizes including large CAFOs are eligible to

receive funding. The amendments limited total payments to $450,000 per participating producer

(changed from $50,000 per contract) through FY2007.

The 2008 farm bill (P.L. 110-246) reauthorized EQIP at levels increasing annually up to $1.75

billion in FY2012. However, it lowered the EQIP payment limit to $300,000 in any six-year

period per entity, except in cases of special environmental significance including projects

involving methane digesters, as determined by USDA. The enacted bill retained the requirement

that 60% of funds be made available for cost-sharing to livestock producers, including an

incentive payments for producers who develop a comprehensive nutrient management plan.

For additional information, see CRS Report RL32948, Air Quality Issues and Animal Agriculture: A Primer, by

(name redacted).

National Research Council, Board on Agriculture and Natural Resources, Board on Environmental Studies and

Toxicology, “Air Emissions from Animal Feeding Operations: Current Knowledge, Future Needs, Final Report,”

December 2002, 241 p.

68 Federal Register 7242, February 12, 2003. The time period for achieving these anticipated reductions was not

specified.

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USDA, EPA, and federal agencies such as the Small Business Administration (SBA) administer a

number of other assistance programs, which EPA summarized in a 2002 report.40 The SBA, for

example, administers a pollution control loan program that can be used by small and large animal

feeding operations that are small businesses. Several of the EPA Clean Water Act programs

described in the report, such as nonpoint source pollution management grants, can be used by

AFOs, but generally not by CAFOs which are regulated as point sources under that act.

A 2003 GAO report found that neither states nor EPA are equipped to implement the program,

having not made provisions for additional staffing to process permits, conduct required

inspections, and take enforcement actions.41 GAO reported that the changes will create resource

and administrative challenges for states, and meeting these new demands will require additional

personnel. However, most of the states reviewed by GAO cannot hire additional staff and would

have to reassign personnel from other programs. EPA, too, will have to redeploy staff resources.

GAO commented in the report on EPA’s limited past oversight of state CAFO programs and

concluded that the Agency will need to increase its oversight of state regulatory programs to

ensure that the new requirements are properly adopted and carried out by states.

For state agencies that implement the NPDES permit program, the principal existing source of

financial assistance is grants under Section 106 of the Clean Water Act, which states already use

for various activities to develop and carry out water pollution control programs. States currently

use Section 106 grants, supplemented by state resources, for standard setting, permitting,

planning, enforcement, and related activities. In light of budgetary problems confronting many

states, it is unclear how state agencies will find the resources needed to carry out their

responsibilities under the revised rules without reducing resources for other important activities.

Other Industry Views

Fundamentally, agricultural interests emphasize that most farmers are diligent stewards of the

environment, since they depend on natural resources of the land, water, and air for their

livelihoods and they, too, directly experience adverse impacts on water and air quality, when they

do occur. Many believe that environmental problems caused by some individual farmers do not

require national solutions or standards, and most are very concerned that regulatory requirements

will adversely affect the economic viability of the industry, especially compared with

international competitors.

While agriculture industry groups reportedly considered the final rules workable (especially with

increased resources provided by the 2002 farm bill), it was also clear that many objected to some

basic elements of the regulations that were not eliminated or were changed little from the

December 2000 proposal. These concerns were reflected in comments on the proposed rules. For

example, livestock and general agriculture groups questioned EPA’s basic authority to impose a

number of the rules’ requirements. These groups generally opposed eliminating the previous

permitting exemption for facilities that discharge only in a large storm event, saying that such

operations should not be covered by permits.

U.S. Environmental Protection Agency, “Financial Assistance Summaries for AFOs,” 2002. Available at

http://www.epa.gov/npdes/pubs/financial_assistance_summaries.pdf.

U.S. General Accounting Office, “Livestock Agriculture, Increased EPA Oversight Will Improve Environmental

Program for Concentrated Animal Feeding Operations,” January 2003, GAO-03-285.

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Industry also opposed imposing on CAFOs a duty to apply for permits and questioned EPA’s legal

authority for requiring permits from CAFOs that claim not to discharge pollutants, since in their

view the Clean Water Act only requires permits for actual discharges. Some questioned EPA’s

finding that many CAFOs are discharging without a permit (which EPA had cited as a key reason

for revising the regulations) and said that voluntary programs are working adequately to address

the excess manure issue. Some objected to putting the burden on the CAFO to show that it does

not discharge into waterways and argued that the CAFO should not be required to apply for a

permit in the absence of evidence of an actual discharge.

Some industry commenters also argued that EPA lacks authority to include permit requirements

governing land application of manure and process wastewater, because in their view runoff from

land application areas is a nonpoint source discharge that is not subject to Clean Water Act

permitting. EPA’s view is that land application areas are integral to CAFO operations, and,

because there have been significant discharges from them, non-regulatory controls alone are

insufficient.

Other Views of Environmental Groups42

Environmental groups were critical of several other provisions in the proposal that were omitted

from the final rules. Chief among these was EPA’s decision not to require co-permitting of both

the farmer who raises the livestock and the large companies that actually own the animals and

contract with farmers. This was one of the most controversial parts of the proposed rules.

Environmental advocates believe that co-permitting makes large corporations responsible for

wastes produced on the farms with which they contract, while the agriculture industry said it

would make corporations liable for waste management decisions over which they have no

practical control.

Environmental groups also had strongly favored lowering the threshold for defining when an

AFO is a CAFO, which would ensure that more operations are subject to uniform controls and

enforcement.

These groups criticized changes in the final rules that they believed will limit public involvement

and oversight. In particular, they said that, by not requiring that nutrient management plans be

publicly developed and available, the public will not have adequate access to the plans. Many

environmental advocates favored including nutrient management plans in a CAFO permit, which

would make the plans an enforceable element of the permit. Agriculture industry groups argued

that the plan would contain proprietary information and that making it publicly available would

both discourage innovation in developing waste management technologies and could make

CAFOs vulnerable to lawsuits. EPA pointed out that the final rules required CAFOs to submit

annual nutrient management reports that will be public and will provide information on numbers

of animals, amounts of manure generated, and how the manure is being handled. Advocates also

said that, by not requiring that nutrient management plans be developed by a certified expert or be

Within agriculture, there are some groups that reflect many interests similar to those of environmental groups, such

as the Sustainable Agriculture Coalition, which promotes policies based on economically profitable, environmentally

sound, family-farm based systems of agriculture and livestock production methods at small and mid-size operations

that do not use animal confinement. Concerning CAFO issues, sustainable agriculture groups favored strategies based

on nationally uniform standards, alternatives to large CAFO production, public accountability in issuance of CAFO

permits, and legal liability for corporate owners of confined animals.

Congressional Research Service

Animal Waste and Water Quality: CAFOs

approved by the permitting authority, as had been proposed, the revised rules essentially allow

farmers to write their own requirements without technical or permitting authority involvement.

Issues for Congress

Implementation of the revised CAFO rules will present large challenges for those who are

directly affected by the regulations—the animal agriculture industry, states, and EPA—as well as

interested members of the public. Several issues of congressional interest are apparent.

•

Adequacy of funding. Requests for funding assistance to help affected groups

comply with the rules have increased—especially by feedlot operators seeking

EQIP funds. However, even at the higher EQIP contract limit provided by the

2002 farm bill ($450,000 per farmer), there was concern that the ceiling would

effectively diminish some farmers’ interest in the program. The 2008 farm bill

(P.L. 110-246) lowered the EQIP payment limit to $300,000 per entity. In

addition, both states and EPA face difficulties in meeting new program and

permitting responsibilities within current budgetary constraints. At issue is

whether adequate resources will be provided and funding priority given as

needed.

•

Research needs. A large number of treatment technologies and best management

practices exist for pollution prevention at animal feeding operations, as well as

for handling, storage, treatment, and land application of wastes.43 EPA believes,

however, that storage lagoons and sprayfields have been and remain the most

widely used technologies. Research to encourage new technologies and

demonstration of technologies and practices that may pose less environmental

risk could be environmentally and economically beneficial. In this regard,

researchers may be interested in a program established by the 2002 farm bill that

authorizes USDA to provide innovation grants to leverage federal investment in

environmental protection through the use of EQIP, including demonstrating

innovative nutrient management technology systems for AFOs. In addition, the

National Research Council’s 2002 report on air emissions from AFOs

recommended that EPA and USDA aggressively pursue research in that area and

identified priorities for short- and long-term research programs.

•

Oversight of implementation. As noted previously, GAO has criticized EPA’s

past oversight of state CAFO permitting activities, and EPA acknowledged that

neither federal nor state agencies had previously given much priority to

regulating feedlot wastes. At issue now will be how EPA and states demonstrate

through planning and actions their commitment to implement the new

requirements. USDA’s commitment to supporting farmers’ implementation of the

rules also will be of interest.

•

Is federal legislation needed? There also is the issue of whether the revised

regulatory program reflects Congress’ intent and expectations concerning

management of animal waste and its environmental impacts. Some questions of

Technologies are discussed extensively in: U.S. Environmental Protection Agency, “Development Document for the

Final Revisions to the National Pollutant Discharge Elimination System Regulation and the Effluent Guidelines for

Concentrated Animal Feeding Operations,” December 2002, Chapter 8.

Congressional Research Service

Animal Waste and Water Quality: CAFOs

congressional intent were raised in legal challenges brought by agriculture

industry and environmental groups to the rules, such as, did Congress intend to

authorize EPA to regulate land application of wastes? At the same time, some

may conclude that legislation amending the Clean Water Act is needed to guide

EPA, states, and industry by clarifying Congress’ current view of key issues,

compared with that act’s enactment in 1972—considering, for example, whether

the scope of requirements should be narrowed. Alternatively, some who see gaps

in parts of the final rules may favor legislation to broaden requirements—for

example, concerning co-permitting or technology standards. Finally, some may

believe that another legislative vehicle entirely—such as the farm bill

administered by USDA—is a more appropriate tool for addressing animal waste

management issues.

Author Contact Information

(name redacted)

Specialist in Resources and Environmental Policy

/redacted/@crs.loc.gov, 7-....

Congressional Research Service

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