Background: EPA CAFO Regs

In December 2002, the Environmental Protection Agency (EPA) announced a new rule governing how concentrated animal feeding operations (CAFOs) were regulated. It represented the biggest change in environmental regulations the livestock industry had seen at the federal level since 1974, when EPA first implemented effluent limitation guidelines for large livestock confinement operations.

The 420-page rule became the new “foundation” for all state-run CAFO permitting programs, because individual state regulatory agencies can create environmental regulations that are more stringent than the EPA rule, but not less. Currently, forty-five states are authorized to administer their own permitting programs. Some states have already enacted many of the provisions included in the new EPA rule, including requirements for nutrient management plans and mortality management. Several states also require operations with fewer than 1,000 head to register with the state and apply for a permit. The new EPA rule was officially promulgated in February, 2003 and became known as the “2003 Final Rule.”

What Changed?

  • New CAFO Categories – the “Medium CAFO” and “Small CAFO”
  • No more “animal units”
  • Land application areas became part of the CAFO
  • Nutrient management plans and record-keeping became mandatory
  • Compulsory sampling and testing of waste and land application areas
  • New inspection mandates for Large CAFOs

EPA had originally proposed reducing the CAFO threshold from 1,000 animal units to something between 300 and 750 animal units—a change favored by environmental groups but opposed by the livestock industry. The final rule struck a compromise between the two groups by creating a new category of CAFO—the “Medium CAFO.” To be designated as a “Medium CAFO,” an operation must confine between 299 and 1,000 head of beef cattle or between 199 and 700 head of mature dairy cattle. It must also either discharge wastewater through a man-made ditch or pipe, or allow surface water to run through an area where animals are confined. A beef feedlot with less than 300 head of capacity can only be considered a CAFO if the EPA or state permitting authority specifically designates them as such. “Large CAFOs” are those operations with more than animals than the previously-described “Medium” CAFO threshold numbers.

The new rule eliminated the distinction between a veal calf and a mature bull— both became equal to one head. However, a cow-calf pair is still equal to only one head until the calf is weaned, at which point they are considered two different animals.

Land application areas became part of the CAFO. Fields and pastures owned or controlled by a CAFO and used for manure or wastewater application are considered part of the CAFO production area. Any runoff of manure or wastewater from fields can be considered a discharge unless the CAFO can prove it followed site-specific nutrient and best management practices.

Site-specific nutrient management plans became mandatory. A nutrient management plan describes how much manure and wastewater is generated, the land available for application, production area maps and soils information, types of crops and forage produced, nutrient balancing on fields receiving manure, wastewater or compost, and the record-keeping system that is used to ensure that nutrients, such as nitrogen and phosphorus, are not over-applied on fields. Manure and wastewater are required to be tested annually for nutrient content. Test results must be given to any third parties taking the material offsite. Soil samples from land application areas must also be collected and analyzed periodically. The nutrient management plan should be kept up to date and be available for examination by regulators, and records must be kept on site for a minimum of five years.

Large CAFOs have to perform a variety of inspections under the rule, including weekly inspections of all stormwater containment structures and daily inspection of water lines carrying drinking and cooling water. Depth markers or depth sensing devices must be installed in all lagoons, and must be monitored.

What Didn’t Change?

  • CAFOs do not have to determine if there is a hydrologic connection between surface water and groundwater;
  • No “co-permitting” system, which would have made packers with captive supplies and feeders who retain ownership of cattle jointly liable with the CAFO for how the manure and wastewater is handled and applied;
  •  No change in the definition of an animal feeding operation (AFO).

Compliance with the new rule was estimated to cost the livestock industry $335 million per year, according to the EPA. Anticipating the financial burden imposed by the rule, Congress increased funding for conservation programs in the 2002 Farm Bill by $20.9 billion. The USDA Environmental Quality Incentives Program (EQUIP) was authorized at $200 million in 2002 and was scheduled to increase to $1.3 billion by 2007. Sixty percent of those funds were earmarked for livestock operations. CAFOs of all sizes became eligible for EQUIP funds.

On February 28, 2005, the 2nd Circuit Court of Appeals ruled on a lawsuit brought against EPA by both environmental and livestock industry groups.  The court upheld most aspects of the 2003 Final Rule, but struck down the requirement that all CAFOs had to apply for a discharge permit even if they had never had a discharge.  As a result, the Colorado Department of Public Health and Environment also eliminated mandatory permitting for all CAFOs.  Today, a CAFO in Colorado has the option of operating under the general discharge permit, or operating without a permit.  No discharge is allowed without a permit.

In 2006, in response to the 2nd Circuit Court ruling, EPA proposed a revised CAFO rule that reconciled the changes required by the court decision.  Supplemental proposed provisions were added in 2008.

In 2011, EPA proposed a new rule that would require all CAFOs to submit operational information about their facilities directly to the EPA.  This information is already required to be submitted to the state permitting authority in most states, thus the utility and purpose of such a requirement was of concern to the livestock industry.  In 2012, EPA withdrew the proposed rule.