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Environmental Blog

  • 29
  • January
  • 2016

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Federal Regulatory Outlook for CAFOs in 2016 . . . and Beyond

In 2016, the U.S. Environmental Protection Agency (EPA or Agency) will announce whether it will renew the National Enforcement Initiative (NEI) for Concentrated Animal Feeding Operations (CAFOs) under the Clean Water Act (CWA). The Agency solicited public comment in a Federal Register notice on whether to renew the CAFO NEI, as well as the Agency’s other five NEIs, for Fiscal Years (FY) 2017-2019.

Despite prioritizing CAFOs as a national enforcement focus since the 1990s, and facing key litigation setbacks, EPA appears poised to extend this agricultural sector enforcement initiative for another three-year cycle. A renewed CAFO NEI would likely make greater use of Next Generation Compliance technologies, such as instream monitoring equipment, to pinpoint facilities with the most significant violations and greatest impacts to U.S. waters.

Background on CAFO CWA Enforcement Initiative

Animal feeding operations that meet the regulatory definition of a “CAFO” must comply with the requirements of the CWA National Pollutant Discharge Elimination System (NPDES) permitting scheme. CAFOs are defined as “point sources” in the CWA regulations and classified as “small,” “medium,” or “large” according to the number of animals confined at an operation.

According to the EPA, CAFOs are a “leading source of water quality impairment”; the Agency has identified nitrogen, phosphorous, organic matter, and pathogens as pollutants of concern associated with animal feeding operations. Animal effluent can reach waterbodies from a number of areas at livestock operations, such as waste lagoons, animal confinement areas, manure stockpiles, and croplands where manure was overapplied.

The EPA first designated CAFOs a CWA national enforcement priority in 1998, calling on Regional offices across the U.S. to conduct inspections and initiate appropriate follow-up enforcement responses addressing noncompliance. Designating a sector or industrial activity a national enforcement focus means that both civil and criminal enforcement programs are expected to prioritize investigations and follow-on enforcement actions in that area, making annual commitments for specific numbers of inspections and enforcement actions.

Challenges for Federal CAFO Enforcement

The EPA has faced several adverse court decisions which presented stumbling blocks for the Agency’s enforcement work against regulated livestock operations. For example, the Second Circuit in Waterkeeper Alliance et al. v. EPA vacated several aspects of the 2003 CAFO rule, including the requirement that all CAFOs with a potential to discharge pollutants to jurisdictional waters obtain an NPDES permit. The EPA revised the CAFO rule in 2008 in response to Waterkeeper, and the Agency’s revised rule was again challenged by industry petitioners. After the Fifth Circuit vacated portions of the 2008 CAFO Rule, the Agency again revised the rule, limiting NPDES permitting requirements to CAFOs that actually discharge pollutants to jurisdictional waters. These court decisions significantly narrowed the subset of CAFOs subject to CWA permitting, and thus, subject to federal enforcement.

Moreover, the U.S. Supreme Court’s ruling in Rapanosv.EPA complicated jurisdictional determinations, necessitating updated guidance, and a more careful approach to inspections and case development. Finally, EPA enforcement teams had to grapple with the High Court’s ruling in Sackett v. EPA that unilateral compliance orders issued under CWA Section 309(a) were subject to pre-enforcement court review.

These decisions have posed major challenges for EPA in identifying regulated CAFOs and developing enforcement actions that can withstand judicial scrutiny. EPA’s enforcement offices have had to draft numerous guidance memoranda recalibrating the enforcement guidelines and approaches after these court cases.  Overall, the Agency has become increasingly sensitized to litigation risk and the need for careful case development, and the Department of Justice has demanded greater evidence in EPA’s civil judicial referrals. All of these measures drain Agency resources and time and impact the capacity of the EPA to investigate and pursue enforcement against CAFOs.

Federal Enforcement Actions to Address CAFO Noncompliance

Since FY2008, the Agency has taken over 400 enforcement actions (including administrative enforcement actions and civil judicial cases) to address noncompliance at CAFOs under the CWA NPDES program. The number of cases has varied somewhat each year, with a slight decline in recent years, likely attributable to shrinking EPA budgets and lower full-time equivalent numbers.

These enforcement actions have targeted violations at regulated poultry, beef, swine, and dairy operations. While EPA has pursued enforcement actions against CAFOs across the country, many of the concluded federal enforcement actions against CAFOs have clustered in EPA Regions 4, 5, 6, and 7. In watersheds where CAFOs are deemed a significant contributor to water quality impairment, such as the Chesapeake Bay, the EPA has developed targeted strategies to address CAFOs as part of the national initiative.

Outlook for 2016 and Beyond: Will “Next Gen” Breathe New Life into CAFO Enforcement?

The CAFO NEI is currently in its final year of the FY2014-2016 cycle. In its Federal Register Notice announcing an opportunity to comment on renewal of CAFOs and other initiatives, the Agency indicated for CAFOs it is “considering an updated strategy to explore the use of nutrient technologies that show promise to reduce water pollution, implementation of instream monitoring to demonstrate impacts to water quality and identify violations, as well as new tools to identify the most significant violators.”

The Federal Register Notice also references plans to incorporate Next Generation Compliance technologies into the CAFO enforcement framework. Indeed, the Notice introduces the broad goal of incorporating these Next Gen technologies into all of the NEIs selected for FY2017-2019.

The EPA has already utilized Optical Gas Imaging equipment such as Forward Looking Infrared (FLIR) cameras as part of its Clean Air Act enforcement activities, and the CWA is likely to be the next frontier for Next Gen technologies. Currently, the EPA’s National Enforcement Investigations Center is developing a sensor that can provide instream water quality information, with the potential capability to transmit water data remotely to EPA and state enforcement officials. This type of technology would enhance EPA’s ability to measure pollutant levels in waterbodies in close proximity to CAFOs to bolster pollutant discharge findings. Coupled with isotopic fingerprinting, this equipment could be used to more precisely link water impacts to discharging CAFO operations.

The EPA expects to announce the FY2017-2019 NEIs in April 2016, in the Office of Enforcement and Compliance Assurance FY2017 National Program Manager Guidance Addendum. With its program-wide push for Next Gen approaches in the new NEIs, including instream monitoring for CAFOs, the EPA may sense an opportunity to reinvigorate its struggling CAFO enforcement program. Because Next Gen involves the use of technologies that are largely unproven and not specified in applicable regulations, however, EPA’s strong emphasis on these measures will raise a host of legal and technical issues for CAFOs facing enforcement scrutiny. Indeed, the Agency’s attempts to utilize these technologies in case development and any potential litigation will likely draw further challenges to the enforcement program in this sector.

When EPA announces the next set of NEIs in 2016, we will update our outlook on national CAFO enforcement, including how the Agency frames its enforcement approach for these operationsover the next few years and what the implications are for the industry.

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