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Guest Column: September-October 2010

2010 CWA ruling will affect all CAFO owner operators


September 23, 2010
By Alan Hahn

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Was the May 25, 2010, settlement regarding Concentrated Animal Feeding
Operations (CAFOs) a “one-sided, sweetheart deal” with environmental
groups, as Michael Formica, chief environmental council for the
National Pork Producers Council said, or was it a good policy change?
Was the May 25, 2010, settlement regarding Concentrated Animal Feeding Operations (CAFOs) a “one-sided, sweetheart deal” with environmental groups, as Michael Formica, chief environmental council for the National Pork Producers Council said, or was it a good policy change?

This much seems certain, as this recent ruling and other developments indicate: Environmental issues are not going away for CAFO owners and operators. The question is, how should livestock agriculture respond to the growing concern about environmental issues?

Here is some background: In 1998, the United States Department of Agriculture (USDA) and the United States Environmental Protection Agency (USEPA) began meeting to develop a unified strategy to address Clean Water Act (CWA) issues at CAFOs. Amere 10 years later, on Oct. 31, 2008, after many revisions and a highly publicized lawsuit (Waterkeeper Alliance vs. EPA), the final CWA rule for CAFOs were released.

While many viewed the 2008 CAFO rule – which required National Pollutant Discharge Elimination System (NPDES) permits for those who discharged or proposed to discharge – as tough but fair, it was immediately criticized by some environmental groups. Jon Devine, senior attorney for the water program at the Natural Resources Defense Council (NRDC) said of the 2008 CAFO rule: “Literally and figuratively, this rule puts the Bush administration’s stamp of approval on a load of manure.”

With this background, it came as no surprise that environmental groups challenged the 2008 CAFO rule via a lawsuit. Specifically, the challenge came from NRDC, Sierra Club, and the Waterkeeper Alliance (NRDC vs. EPA, 5th Cir., No. 08-61093, May 25, 2010 ). And for these environmental groups, the challenge was a success. The settlement was filed May 25, 2010, and won immediate praise from the environmental groups.

“Thousands of factory farm polluters threaten America’s water with animal waste,” said Devine , speaking about the recent settlement. “Many of these massive facilities are flying completely under the radar; EPA doesn’t even know where they are. Our lawsuit and (the) settlement rejects industry’s self-policing practices, and requires EPA to start gathering the missing information it needs to clean up our waterways and protect public health.”

As it relates to CAFO owner and operators, there are several noteworthy issues in the May 25, 2010 settlement.

First, the EPA was required to publish a guidance document to assist permitting authorities in implementing NPDES permit regulations, and to specify the kinds of operations and circumstances that the EPA anticipates may trigger the duty to apply for permits. This document is now on the EPA’s website at www.epa.gov/npdes/pubs/cafo_implementation_guidance.pdf .

Second, as part of the final settlement agreement, the EPA agreed to propose a rule within one year to require all CAFOs (not only those who will discharge or propose to discharge) to submit details to the agency about their operations, and to update the information every five years. Some of the information that will be required includes:

  • Name and address of the owner and operator
  • Type of facility
  • Number and type(s) of animals
  • Type and capacity of manure storage
  • Quantity of manure, process waste water and litter generated annually
  • Whether the CAFO land applies manure
  • Available acreage for land application
  • If the CAFO land-applied manure is a nutrient management plan in place
  • Whether the CAFO has applied for an NPDES permit

Also, the EPA “will release to the public information initially collected pursuant to rulemaking.” There may be an exception for information that constitutes “trade secrets.”

This ruling seems to be in line with the stated objectives of the current administration. You may recall that on Feb. 22, 2010, the EPA announced their “National Enforcement Initiatives for Fiscal Years 2011–2013.” The second initiative listed by the EPA is “Preventing Animal Waste from Contaminating Surface and Ground Waters.”

So how should livestock agriculture respond to the growing concern about environmental issues? Politics aside, it seems certain that environmental management issues will likely play a more central role in the day-to-day operations at CAFOs. And, as in many other industry segments, an environmental management approach is likely to develop as a key business element (e.g., American Chemistry Council – Responsible Care, Food Processing – Hazardous Analysis and Critical Control Points, Forest Products – Sustainable Forest). Some of these ag-specific programs, such as the National Pork Producers Council’s We Care Initiative, and the National Milk Producers Federation FARM Program, are beginning to emerge.

Large livestock operations are not going away, and there is little doubt there are some who will remain opposed to CAFOs (regardless of how well they are managed). However, with growing global populations, many will argue the only way to “feed the world” is through the use of efficient and effective CAFOs. Accordingly, stakeholders (activist groups and consumers) will require more transparency at CAFOs, and environmental management is part of this transparency.


Alan Hahn is an environmental professional with more than 30 years of experience. He works for The Dragun Corporation, an environmental consulting firm that assists agriculture with environmental permitting, planning and expert environmental services. It has offices in the United States and Canada.


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