Here are the high points of the Environmental Protection Agency's 68-page final confined animal feeding operation (CAFO) rules.

In October, the U.S. Environmental Protection Agency (EPA) issued rules in what many hope will be the last chapter for the overhaul of federal rules regulating concentrated animal feeding operations (CAFOs). However, as has been the case for over 10 years, there may be more to come if the courts and/or the new administration get involved.

To fully understand this final rule, it is important to take a look at how we got here.

In February 1998, President Bill Clinton released a Clean Water Action Plan, which included a directive that EPA and USDA develop a unified national strategy to minimize the water quality and public health impacts of animal feeding operations. This resulted in a National Unified Strategy in March 1999, a draft rule in December 2001 and a final rule issued in February 2003. That final rule, however, turned out to be not so final.

Both environmental and farm groups filed lawsuits challenging the rule, and in February 2005, a federal court ruled that significant portions of the rule were invalid under the Clean Water Act. The EPA went back to the drawing board and in June 2006, issued a proposed rule to address the court's ruling. In response to concerns about the proposed rule, EPA issued a second proposed rule for public comment in March 2008.

Both EPA proposals have now been finalized, consolidated and published in the Nov. 20, 2008 Federal Register. The final rule and other information from EPA can be found at http://cfpub.epa.gov/npdes/afo/cafofinalrule.cfm.

The final EPA CAFO rule consists of 68 pages with explanations and actual rule provisions. The key provisions include:

• NPDES Permit Requirements

  A CAFO is, in general, an animal feeding operation that has more than a specified number of livestock. For swine, that number is 2,500 head weighing more than 55 lb. or more than 10,000 swine weighing 55 lb. or less.

  The cornerstone of federal EPA regulation of CAFOs is the National Pollution Discharge Elimination System (NPDES) permit. This is a five-year permit that basically allows the CAFO to operate as designed by a professional engineer. The CAFO must be designed, operated and maintained to not discharge manure to a continuously flowing creek, river, etc. (technically, surface waters that qualify as waters of the United States) from any precipitation event that is less than the equivalent of a 25-year, 24-hour storm event for the area. If a storm greater than that occurs and a CAFO with an NPDES discharges manure as a result of the storm, there is no violation of the permit.

  A CAFO must obtain an NPDES permit if the CAFO “discharges or proposes to discharge.” Most swine operations of CAFO size are confinement systems where the animals are housed totally under roof and the manure is either stored in covered manure storage (under buildings) or in totally contained, outside manure storage such as lagoons or other outside storage structures.

  Accordingly, most swine CAFOs do not discharge from the manure storage structures. The final rule goes a step further and requires a discharge permit (NPDES permit) if a CAFO “proposes to discharge.” The final rule states that a CAFO proposes to discharge “if it is designed, constructed, operated, or maintained such that a discharge will occur.”

  In the introduction to the final rule, the EPA states that a CAFO should conduct an objective assessment to determine whether the CAFO “due to its individual attributes, discharges or proposes to discharge.” Key factors the EPA suggests a CAFO should consider in conducting this assessment are:

  • Proximity to surface waters and whether the CAFO is upslope from those waters;

  • Climactic conditions;

  • Type, capacity and the quality of construction of the manure storage system;

  • Whether there are built-in safeguards and;

  • What standard operating and maintenance procedures are in place.