Who Will Keep the Poop Out of the Water?: The Latest in the Saga of CAFO Regulation Under the Clean Water Act

December 4, 2023 by Bill Shultz

Picture of a fan-vented CAFO barn.

Concentrated animal feeding operations are explicitly named as a point source under the Clean Water Act, but the EPA has been woefully ineffective at monitoring and regulating manure discharges, leaving water and human health at risk.

Industrial livestock producers increasingly use Concentrated Animal Feeding Operations (“CAFOs”) to satisfy the United States’ massive appetite for meat and dairy products.[1] CAFOs are factory-modeled barns each packed tightly with thousands of livestock. Everything from chickens, to pigs, to turkey, to both beef and dairy cattle, and more, are now raised in CAFOs.[2]

Not only do CAFOs produce a lot of meat, but they also produce an incredible amount of manure. A 2010 report partially funded and supported by the CDC estimated that annual manure production from CAFOs of all types was between three and twenty times that produced by humans – a total of between 1.2 and 1.37 billion tons of waste per year.[3] Unlike human waste, manure from CAFOs does not undergo extensive, multi-stage treatment.[4] Instead, manure is most often captured, stored, diluted, and applied directly onto land.[5]

While methods for managing manure vary depending on the animal, the typical swine CAFO uses a pit lagoon system in combination with direct land application.[6] An operation using this method consists of one or more barns, with both open air and fan-driven ventilation, built directly over a pit lagoon.[7] Hogs live in groups inside of pens constructed over slatted concrete floors.[8] As they move around throughout the day and when workers hose down the pens, manure falls through the slats into the lagoon.[9] About twice each year, the manure is agitated and pumped into tankers to be transported and applied to fields.[10] Proper ventilation of the lagoon is required to prevent livestock and farmworker injury or death resulting from hydrogen sulfide build-up or possible methane explosions.[11]

Because of these manure handling practices, as well as water use within the barns themselves, CAFOs are explicitly designated as a “point source” subject to regulation under the Clean Water Act.[12] Any CAFO that directly discharges pollutants into the waters of the United States from their production area or one that applies (discharges) liquid manure directly onto land is, theoretically, required to obtain a permit under the National Pollutant Discharge Elimination System (“NPDES”).[13] The EPA has, however, proven to be ineffective at monitoring, let alone regulating, CAFOs.[14]The EPA does not know how many CAFOs are in operation in the United States or where they are all located, but has positively identified over 20,000 facilities nationwide.[15] The Agency leaves it to CAFOs to self-assess whether they discharge and thus require a NPDES permit. In theory, EPA has regulatory jurisdiction over CAFOs through several environmental statutes. Though the Clean Air Act does not explicitly require EPA to monitor CAFOs, operations that emit beyond the Act’s thresholds should be regulated and subject to SIP requirements under standard PSD and nonattainment area pollutant regulation.[16] Additionally, until 2018, the Comprehensive Environmental Response, Compensation and Liability Act (“CERCLA”) and the Emergency Planning and Community Right-to-Know Act (“EPCRA”) each required reporting of hazardous substances released by CAFOs.[17]

However, CAFOs have been allowed to emit air pollutants for decades behind a shield of legal immunity.[18] In 2005, the EPA and industry entered into an Air Compliance Agreement.[19] The agreement was designed to fund a nationwide emissions monitoring study.[20] Facially, the purpose of the study was to improve air pollutant emissions monitoring, which would in turn enable proper regulation.[21] For entering into the agreement, operators paid a small civil penalty based on the size of their outfit in exchange for complete immunity from civil liability arising under the Clean Air Act, CERCLA, and EPCRA.[22] The study was designed to be completed by 2010, at which point Congressionally mandated regulation would begin. Eighteen years later, the studies have been ineffective, EPA still has not issued regulations, and CAFOs are still immune from Clean Air Act liability. To make matters worse, in 2018 Congress passed the Farming Agricultural Reporting Method Act (“FARM Act”), which codified CAFOs’ exemption from CERCLA reporting requirements regardless of any hypothetical conclusion of the emissions monitoring study.[23]In effect, ever larger and more abundant CAFOs are allowed to emit untold quantities of toxic and hazardous air pollutants with no federal statutory repercussions.[24]

To be sure, the judiciary, Congress and the states have been of little help. Between adverse judicial opinions, Congressional exemptions, and a race to the bottom in states competing to make way for more barns, CAFOs have been effectively allowed to pollute the air and water at will.[25]

One might think since federal oversight has been ineffective that state and local authorities have stepped in to fill the gap. That is not the case. Iowa, Missouri, and other states seem to be engaged in a race to the bottom to attract more and more CAFOs, often at the expense of communities neighboring the facilities.[26] Local communities that have attempted to limit CAFO construction or hold them accountable for harms caused to human health and the environment have often been thwarted at the state level.[27] Many states have responded to these citizen efforts by amending so-called Right to Farm statutes to protect CAFOs by limiting their liability for nuisance and other common law claims or preventing local ordinances that seek to regulate CAFOs.[28] In short, states have taken full advantage of their sovereign right to regulate their intrastate industry and environment by taking a deregulatory stance to attract CAFO development.

The EPA twice attempted to revise the NPDES permitting processes under the Clean Water Act to address the CAFO problem (in 2003 and then again in 2008), but each time the regulations were rolled back in the Circuit courts. The 2003 Rule, the first revision since the initial 1976 regulations, sought to create a universal duty-to-apply standard for all CAFOs that included liability for noncompliance, allowing CAFOs to avoid the requirement if they proved that they did not discharge.[29] The Second Circuit shot down the universal duty-to-apply provision, sending the Rule back to the EPA.[30] The 2008 Rule revised the duty-to-apply standard to cover CAFOs that discharged or proposed to discharge, based on certain facility design elements.[31] This time, the Fifth Circuit struck the duty-to-apply for proposed discharges rule, as well as its attendant liability scheme, finding that the Clean Water Act only covered actual discharges.[32] That 2011 ruling reverted NPDES coverage back to its 1976 status, under which CAFOs are only required to obtain a permit for actual discharges, a determination that operations make for themselves.

In 2017, environmental groups, led by Food & Water Watch, filed a petition to implore EPA to strengthen CAFO regulations and stave off the states’ race to the bottom.[33] That petition went unanswered until 2022, when the groups filed a writ of mandamus to compel a response.[34] Finally, this past August, the EPA issued its reply, stating that the Agency agreed with the groups that CAFOs presented a major problem in terms of both monitoring and regulation, but denying the groups’ ask to undertake formal rulemaking.[35] Instead, the EPA established the Animal Agriculture and Water Quality subcommittee, purportedly a multi-stakeholder committee designed to comprehensively evaluate CAFO regulation under the Clean Water Act and “help to inform EPA’s efforts to improve its CAFO program.”[36]

For many concerned about CAFO pollution, the establishment of the subcommittee rings eerily like the dead-end that has been the 2005 Air Compliance Agreement. How long will the Animal Agriculture and Water Quality subcommittee study the problem of inadequate CAFO monitoring under the Clean Water Act? Five years? Ten? Twenty? In the meantime, CAFOs continue emitting air pollutants without statutory or often even common law liability, monitoring themselves for water pollution discharges. Food & Water Watch and its partner groups have filed a petition for review in the Ninth Circuit, to take a second look at the EPA’s decision to deny their rulemaking petition.[37]Communities impacted by CAFO pollution will be eagerly following along.

[1] Carrie R. Daniel, et al., Trends in Meat Consumption in the United States, Pub. Health Nutrition, 575-583 (Nov. 12, 2010).

[2] See e.g., 40 C.F.R. § 122.23(b)(4), (6).

[3] Carrie Hribar, Nat’l Ass’n of Loc. Bds. of Health, Understanding Concentrated Animal Feeding Operations and Their Impact on Communities 2 (2010).

[4] Id.

[5] Id.

[6] Extension Foundation, Pig Farms and Manure Management: A virtual tour (2016), https://express.adobe.com/page/J2yqouJIdATWy/.

[7] Id.

[8] Id.

[9] Id.

[10] Id.

[11] Id.

[12] 33 U.S.C. § 1362(14).

[13] 40 C.F.R. § 122.23(d)-(f).

[14] U.S. Gov’t Accountability Off., GAO-08-944, Concentrated Animal Feeding Operations: EPA Needs More Information and a Clearly Defined Strategy to Protect Air and Water Quality from Pollutants of Concern, 63 (Sep. 04, 2008).

[15] Id. at 4; See also, EPA, NPDES CAFO Permitting Status Report: National Summary, Endyear 2022 (May 16, 2023).

[16] Clean Air Act, 42 U.S.C. §§ 7401-7671q.

[17] CERCLA, 42 U.S.C. § 9603; EPCRA, 42 U.S.C. § 11004.

[18] Id.

[19] 70 Fed. Reg. 49588-4977 (Jan. 31, 2005).

[20] Id.

[21] Id. at 4960.

[22] Id. at 4959.

[23] FARM Act, Pub. L. No. 115-141, div. S, title XI, Mar. 23, 2018, 132 Stat. 1147.

[24] 70 Fed. Reg. at 4959.

[25] See, e.g., Madison McVan, 18 Years and Counting: EPA still has no method for measuring CAFO air pollution, Investigate Midwest (Apr. 20, 2023) https://investigatemidwest.org/2023/04/20/18-years-and-counting-epa-still-has-no-method-for-measuring-cafo-air-pollution/.

[26] Danielle Diamond, et al., Agricultural Exceptionalism, Environmental Injustice, and U.S. Right-to-Farm Laws, 52 Env’t L. Rep. 10727 (Env’t Law Inst. 2022).

[27] Id.

[28] Id.

[29] National Pollutant Discharge Elimination System Permit Regulation and Effluent Limitation Guidelines and Standards for Concentrated Animal Feeding Operations (CAFOs), 68 Fed. Reg. 7176 (Feb. 12, 2003).

[30] Waterkeeper Alliance, et al. v. EPA, 399 F.3d 486 (2d Cir. 2005).

[31] Revised National Pollutant Discharge Elimination System Permit Regulation and Effluent Limitations Guidelines for Concentrated Animal Feeding Operations in Response to the Waterkeeper Decision, 73 Fed. Reg. 70418 (Dec. 22, 2008).

[32] National Pork Producers Council, et al. v. EPA, et al., 635 F.3d 738 (5th Cir. 2011).

[33] Food & Water Watch, Dozens of Advocacy Groups Challenge EPA on Factory Farm Pollution (Mar. 8, 2017), https://www.foodandwaterwatch.org/2017/03/08/dozens-of-advocacy-groups-challenge-epa-on-factory-farm-pollution/.

[34] Food & Water Watch, EPA Agrees to Address Factory Farm Water Pollution Petition This Summer (Apr. 3, 2023), https://www.foodandwaterwatch.org/2023/04/03/epa-agrees-to-address-factory-farm-water-pollution-petition-this-summer/.

[35] Response Letter to Petitioners, EPA, Office of Water (Aug. 15, 2023), https://www.foodandwaterwatch.org/wp-content/uploads/2023/08/Final-Response-to-2017-CAFO-Petition6863.pdf.

[36] Animal Agric. Water Quality Subcomm., EPA, Response to Stakeholder Petitions to Revise EPA’s NPDES CAFO Program (Aug. 15, 2023), https://www.epa.gov/npdes/animal-agriculture-water-quality-subcommittee.

[37] Food & Water Watch, et al. v. EPA, No. 23-2146 (9th Cir. Sep. 08, 2023).


This paragraph seems a bit repetitive given the content of the following paragraph. Maybe consider removing entirely for concision.