Animal Waste and Water Quality: EPA's Response to the Waterkeeper Alliance Court Decision on Regulation of CAFOs

Publication Date: August 2008

Publisher: Library of Congress. Congressional Research Service

Author(s):

Research Area: Environment

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Abstract:

On June 30, 2006, the Environmental Protection Agency (EPA) proposed regulations that would revise a 2003 Clean Water Act rule governing waste discharges from large confined animal feeding operations (CAFOs). This proposal was necessitated by a 2005 federal court decision (Waterkeeper Alliance et al. v. EPA, 399 F.3d 486 (2nd Cir. 2005)), resulting from challenges brought by agriculture industry groups and environmental advocacy groups, that vacated parts of the 2003 rule and remanded other parts for analysis and clarification.

The Clean Water Act prohibits the discharge of pollutants from any "point source" to waters of the United States unless authorized under a permit that is issued by EPA or a qualified state, and the act expressly defines CAFOs as point sources. Permits limiting the type and quantity of pollutants that a facility can discharge are derived from effluent limitation guidelines promulgated by EPA for categories of point sources. The 2003 rule, updating rules that had been in place since the 1970s, revised the way in which discharges of manure, wastewater, and other process wastes from CAFOs are regulated, and it modified both the permitting requirements and applicable effluent limitation guidelines. It contained important first-time requirements: all CAFOs must apply for a discharge permit, and all CAFOs that apply such waste on land must develop and implement a nutrient management plan.

EPA's proposal for revisions addresses those parts of the 2003 rule that were affected by the federal court's ruling: (1) it would eliminate the "duty to apply" requirement that all CAFOs either apply for discharge permits or demonstrate that they have no potential to discharge, which was challenged by industry plaintiffs, (2) it would add procedures regarding review of and public access to nutrient management plans, challenged by environmental groups, and (3) it would modify aspects of the effluent limitation guidelines, also challenged by environmental groups. EPA's proposal also considers modifying a provision of the rule that the court upheld, concerning the treatment of a regulatory exemption for agricultural stormwater discharges.

Public comments addressed a number of general and specific technical points, with particular focus on the "duty to apply" for a permit and agricultural stormwater exemption provisions of the proposal. Industry's comments were generally supportive of the proposal, approving deletion of the previous "duty to apply" provision and also EPA's efforts to provide flexibility regarding nutrient management plan modifications. Environmental groups strongly criticized the proposal, arguing that the Waterkeeper Alliance court left in place several means for the agency to accomplish much of its original permitting approach, but instead EPA chose not to do so. State permitting authorities also have a number of criticisms, focusing on key parts that they argue will greatly increase the administrative and resource burden on states. EPA officials have indicated that they intend to promulgate revised regulations by June 2007. Congress has shown some interest in CAFO issues, primarily through oversight hearings in 1999 and 2001.