6,100 8,000

9,300

11,200

23,000

0

5,000

10,000

15,000

20,000

In 2003

(estimated

15,400 total

CAFOs)

In 2010

(estimated

19,200 total

CAFOs)

...Future?

(estimated

23,000 total

CAFOs)

Unpermitted

Permitted

United States Environmental Protection Agency

Office of Water, Office of Wastewater Management

Water Permits Division

September 2010

National Pollutant Discharge Elimination System (NPDES) 

Information Collection Rulemaking and CAFOs

Background – CAFOs and the NPDES Program

In 2008, EPA revised the NPDES permit regulations for concentrated animal feeding 

operations (CAFOs) to address the decision of the U.S. Court of Appeals for the Second Circuit 

in Waterkeeper Alliance v. EPA. Among other things, the 2008 final rule addressed the court’s 

ruling by specifying that a CAFO that “discharges or proposes to discharge” must seek NPDES 

permit coverage. The rulemaking also clarifies that a CAFO “proposes to discharge” if an 

objective assessment determines that the CAFO is designed, constructed, operated, or maintained 

such that a discharge will occur. (73 FR 70424).

In May 2010, EPA released Implementation Guidance on CAFO Regulations – CAFOs 

That Discharge or Are Proposing to Discharge, which provides CAFO owners and operators and 

NPDES permitting authorities guidance for evaluating whether a CAFO discharges or proposes 

to discharge (EPA-833-R-10-006). 

NPDES CAFO Program Implementation Status

EPA is moving forward vigorously to ensure that all CAFOs that need NPDES permits 

have them. Specifically, EPA Headquarters and the ten EPA Regional offices are working with 

all NPDES-authorized States to revise existing NPDES CAFO programs as expeditiously as 

possible and issue NPDES permits to those CAFOs that need them.

To date, approximately 40 

percent of the estimated 19,200 

CAFOs nationally have NPDES 

permits. However, it is unclear how 

many CAFOs in the U.S. “discharge 

or propose to discharge” and 

therefore could ultimately need 

NPDES permits. For the 2008 rule, 

EPA estimated that as many as 75 

percent of all CAFOs could 

experience discharges based on 

standard operational profiles for 

CAFOs in the major animal sectors.
Upcoming NPDES Rulemaking to Require CAFOs to Report Facility Information

EPA is undertaking a national rulemaking to collect basic facility information from all 

CAFOs. The information collected will assist EPA and State permitting authorities in ensuring 

full implementation of the NPDES CAFO program and directing appropriate permitting, 

compliance assistance, and enforcement activities. EPA agreed to initiate the rulemaking in its 

settlement agreement with environmental petitioners arising out of litigation on the 2008 NPDES 

CAFO regulations. In the agreement, EPA and environmental petitioners agreed to the following 

terms: 

– EPA would issue Duty-to-Apply guidance by May 2010 that provides more 

information on determining which CAFOs need NPDES permits.

– EPA would propose a rule to require all CAFOs to report basic facility 

information to the Agency, including but not limited to the following: 

• Name and address of the owner and operator

• If contract operation, name and address of the integrator

• Location (longitude and latitude) of the operation

• Type of facility

• Number and type(s) of animals

• Type and capacity of manure storage

• Quantity of manure, process wastewater and litter generated annually by 

the CAFO

• Whether the CAFO land-applies

• Available acreage for land application

• If the CAFO land-applies, whether it implements a nutrient management 

plan for land application

• If the CAFO land-applies, whether it employs nutrient management 

practices and keeps records on site consistent with 40 C.F.R. § 122.23(e)

• If the CAFO does not land apply, alternative uses of manure, litter, and/or 

wastewater

• Whether the CAFO transfers manure off-site, and if so, quantity

transferred to recipient(s) of transferred manure

• Whether the CAFO has applied for an NPDES permit

– EPA would propose the new information collection rulemaking by May 2011 and 

finalize the rulemaking by May 2012.

The new rulemaking will be promulgated under §308 information collection authorities 

of the Clean Water Act. Smaller animal feeding operations that are not CAFOs are not covered 

under the information collection rulemaking. 

At present, EPA is in the pre-proposal stage of the rulemaking. The rulemaking process 

can be followed on EPA’s Rulemaking Gateway at

http://yosemite.epa.gov/opei/RuleGate.nsf/byRIN/2040-AF22?opendocument.