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Supplemental Responses to Comments for the Proposed NPDES CAFO Reporting Rule 

Background and purpose of this document

The EPA received 1,403 comments on the proposed National Pollutant Discharge Elimination 

System (NPDES) Concentrated Animal Feeding Operation (CAFO) Reporting Rule.

1

 States, in 

particular, commented that state permitting authorities, or other state agencies, have information 

about CAFOs (“CAFO information”) and that much of the information is publicly available. 

Some states commented that they have additional CAFO information beyond the five items 

proposed and also have information about operations that are animal feeding operations (AFOs) 

but are not defined as CAFOs. Industry commenters also indicated that information has been 

provided to the state permitting authorities. A summary of the comments received, including 

those from the states, are described in the Federal Register notice for today’s final action. 

The EPA agrees with those commenters who stressed that the EPA has the authority to collect 

this information directly from CAFOs.

2

The EPA has decided, however, to make a concerted 

effort to obtain CAFO information from existing sources of information instead of requiring all 

CAFOs to submit specific items of information to the EPA at this time. The Federal Register

notice discusses the primary reason why the EPA decided to use existing sources of information 

to obtain CAFO information rather than promulgating a rule to require the submission of 

information to the EPA. This document addresses additional points made in the comments that 

are relevant to the EPA’s decision to obtain CAFO information from existing sources, including 

the state NPDES programs, other regulations, and other programs at the federal, state, and local 

level.

Many comments on the proposed rule are moot because the EPA is not promulgating a 

rule, and therefore do not require a formal response. 

Many of the comments on the proposed rule are moot because the EPA is not promulgating a

rule. Comments that focus on issues that include the burden on CAFOs to comply with the 

proposed rule, data submission requirements, focus watersheds, enforcement of the proposed 

rule, and the adequacy of notice to CAFOs, among others, are moot because the EPA is not 

promulgating a rule, at this time. If the EPA determines that it cannot obtain adequate CAFO 

information without a rule and subsequently issues a new proposal to collect CAFO information, 

The EPA will review comments on the proposal at that time, to the extent that they are still 

relevant. 

The EPA acknowledges the environmental impact of CAFOs, and has programs in place to 

carry out the objectives of the Clean Water Act (CWA). 

Many commenters stressed the environmental impact of CAFOs in support of their arguments of 

why the EPA should require data to be submitted. The EPA acknowledges the environmental 

impact of CAFOs, and the final action addresses how the EPA intends to obtain CAFO 

 

1

76 FR 65431. See Docket EPA-HQ-OW-2011-0188. Available at www.regulations.gov. 

2 EPA has the authority to collect information about all CAFOs under sections 301, 304, 305, 308, 309, 402, 501, 

and 504 of the CWA. 76 FR 65433. This information-gathering authority is broader than EPA’s authority to require 

permit coverage. 76 FR 65436. Section 308 authorizes information collection from point sources, which includes 

CAFOs that discharge or may discharge. Id.
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information in the absence of a new regulatory requirement. Numerous studies conducted by 

government and independent researchers identify agriculture in general, and AFOs specifically, 

as contributors to surface water pollution. These studies are referenced in the proposal3and in 

the EPA’s public record for the proposed rule.

4

 

Environmental groups commented that the EPA should collect CAFO information in order to

carry out the assessment and restoration of impaired waters (CWA § 303), monitoring of water 

quality (CWA § 305), implementation of the NPDES permitting program, including enforcement 

and compliance (CWA §§ 402, 308, and 309), prevention of pollution that presents human health 

and welfare risks (CWA § 504), and investigation of pollution sources (CWA § 104). The 

commenters are correct in asserting that these objectives are required by the CWA, however, the 

proposed rule is not the only way to achieve these objectives. The EPA has existing programs 

designed to carry out these objectives, and obtaining information from state programs rather than 

promulgating a reporting requirement will not hinder these programs. Any CAFO information 

obtained by the EPA through existing sources will further enhance the CWA programs that are 

already in place.

The EPA considers water pollution from animal agriculture to be an Agency priority, and even 

though the Agency is not promulgating a rule at this time, the EPA continues to carry out the 

objectives of the CWA by: collaborating with states to ensure that state NPDES programs are 

sufficient; enforcing and ensuring compliance with the law and; developing new and innovative 

programs to enhance water quality protection. Any CAFO information obtained by existing 

sources will further enhance the EPA’s ability to implement CWA programs aimed at protecting 

the Nation’s waters.

The primary authority for implementing the NPDES program rests with the authorized states.

Authorized states use monitoring data to review and revise water quality standards, identify 

impaired and threatened waters , develop pollutant-specific Total Maximum Daily Loads 

(TMDLs), determine the effectiveness of pollution control programs, adjust drinking water 

treatment requirements, measure progress toward clean-water goals, and respond to citizen 

complaints or events such as spills and fish kills.5

The EPA collaborates with states to ensure that state NPDES programs are designed and 

implemented so that they may achieve the objectives of the CWA. The EPA receives state 

reports on water quality every two years, as well as prioritized lists of impaired waters that 

warrant the development of pollution controls. The EPA actively engages state agencies to 

identify changes needed in the NPDES program to enhance water quality. For example, the 

EPA’s 2011 CWA Action Plan identifies four key changes needed to revamp the NPDES 

program.

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 The EPA committed to “initiate systematic efforts to improve permits by 

[incorporating] lessons learned from permit quality reviews and compliance monitoring and 

 

3

76 FR 65431. Available at http://www.epa.gov/npdes/regulations/cafo_fr_proposed_reporting_rule.pdf. 

4 Docket EPA-HQ-OW-2011-0188. Available at www.regulations.gov.

5 US EPA, National Water Quality Inventory: Report to Congress 2004 Reporting Cycle, January 2009. Available 

at http://www.epa.gov/owow/305b/2004report/report2004pt1.pdf.

6 US EPA, CWA Action Plan Implementation Priorities: Changes to Improve Water Quality, Increase Compliance 

and Expand Transparency, May 2011. Available at 

http://www.epa.gov/oecaerth/resources/publications/civil/programs/cwa/actionplan-implpriorities.pdf. 
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enforcement actions...to improve the quality, including the enforceability, of newly issued 

permits, especially general permits.”7 Continued implementation of the permitting program 

likely will result in improvements in the tracking, and analysis, of CAFO information. 

 

The EPA’s enforcement and compliance assurance efforts continue to carry out the objectives of 

the CWA. CAFOs are an enforcement priority for the EPA due in part to the potential risks from 

inadequate manure management at CAFOs, a pattern of CWA noncompliance in the industry, 

and the need for the EPA leadership in implementing the federal CAFO regulations.

8

 From FY 

2008 through FY 2011, the EPA conducted over 1,000 inspections and completed 238 federal 

enforcement actions against CAFOs for CWA violations.

9

 During the FY 2008, federal 

enforcement actions resulted in a reduction of over 64 million pounds of pollutants that would 

have otherwise been discharged.

10

 For FY 2013, the EPA enforcement efforts will focus 

primarily on existing large and medium CAFOs identified as discharging without a permit to 

waters of the U.S. In addition to unpermitted large and medium sized operations, some resources 

will be used to assure that CAFOs that already have permits are in compliance with those 

permits.

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 The EPA’s concerted effort to obtain CAFO information will enhance enforcement 

and compliance assurance efforts by providing access to additional CAFO information. 

The EPA continues to develop new and innovative programs that enhance water quality 

protection. For example, the EPA recently developed the Nitrogen and Phosphorus Pollution 

Data Access Tool (NPDAT) to aid states in prioritizing watersheds and setting load-reduction 

goals for those watersheds based on available water quality information. In addition to assisting 

states with enhanced water quality protection, the EPA maintains the National Risk Management 

Research Laboratory (NRMRL) for investigating technological and management approaches for

preventing and reducing impacts from pollutant sources. In March 2011, the NRMRL assisted in 

the development of a report that examined pollutants from dairy operations.

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 The EPA’s 

concerted effort to obtain CAFO information will inform the Agency so that other new and 

innovative programs may be developed. 

The above efforts are just examples of how the EPA is carrying out the objectives of the CWA. 

In the absence of a new rule at this time, the EPA continues to implement these programs and 

pursue the protection of the Nation’s waters. Any CAFO information obtained by the EPA 

through existing sources will further enhance these programs and decision making.

The EPA acknowledges the Agency’s lack of CAFO information. 

 

7

Id. at 15. 

8 US EPA, Compliance and Enforcement National Priority: Concentrated Animal Feeding Operations (CAFOs), 

December 11, 2009. Available at 

http://www.epa.gov/oecaerth/resources/publications/data/planning/priorities/fy2008prioritycwacafo.pdf

9

Id.

10 Id.

11 US EPA, FY 2013 Office of Enforcement and Compliance Assurance (OECA) Draft National Program Manager 

(NPM) Guidance, February 10, 2012. Available at http://www.wsema.com/wpcontent/uploads/2012/02/FY13_OECA_DraftNPMGdnce.pdf.

12 US EPA, Transport and Fate of Nutrients and Indicator Microorganisms at a Dairy Lagoon Water Application 

Site: An Assessment of Nutrient Management Plans, March 2011. EPA 600/R-10/116. Available at 

http://nepis.epa.gov/Exe/ZyPDF.cgi?Dockey=P100DOTV.txt.
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The EPA acknowledges that the Agency lacks a comprehensive inventory of CAFOs. In 

September 2008, the United States Government Accountability Office (GAO) issued a report to 

congressional requesters, recommending that the EPA “complete the Agency’s effort to develop 

a national inventory of permitted CAFOs and incorporate appropriate internal controls to ensure 

the quality of the data.”

13

 The EPA responded to the GAO report that the Agency “was working 

with states to develop and implement a new national NPDES data system to collect and record 

facility-specific information on permitted CAFOs” and that the EPA was developing a proposed 

rule package that would “set national requirements for [electronic submission of] certain NPDES 

program information being provided by authorized states into the EPA’s data system”.14 The “EReporting Rule”15 would pave the way for the EPA to develop a national inventory of permitted 

CAFOs.

16

 The progress of this rulemaking can be followed on the EPA’s Rulemaking Gateway 

website.

17

 

The EPA will obtain CAFO information without a new rule.

The EPA will seek to obtain information items listed in the proposed rule, as well as other 

information that is available from existing resources. Currently, the EPA is assessing the quality 

and comprehensiveness of CAFO information in authorized states’ data management systems, 

which include electronic databases and paper files. This concerted effort to obtain CAFO 

information minimizes private sector reporting and potentially duplicative reporting by owners 

and operators of CAFOs. 

Environmental groups indicated in their comments that the EPA should collect all fourteen data 

items listed in the settlement agreement and additional items beyond those listed in the 

settlement agreement. The EPA believes the most important information to obtain is the contact 

information for the CAFO and the location of the operation. These two pieces of information 

allow the EPA to identify the operation and follow-up, if needed, to collect additional 

information. The EPA will obtain all information the Agency can reasonably acquire from 

existing sources to protect the Nation’s waters, which may include information beyond the five 

items to be collected under the proposed NPDES CAFO Reporting Rule. For example, some 

states track information for AFOs and are willing to share that information with the EPA. Many 

states also track inspection or monitoring information about CAFOs. The EPA anticipates that 

states who submit CAFO information to the EPA are capable of batch reporting that would not 

impose an undue burden on the states. 

The EPA acknowledges that obtaining CAFO information from existing sources may not 

produce a comprehensive inventory of CAFO information. However, the Agency believes 

obtaining CAFO information from existing sources is an important next step to developing a 

comprehensive inventory and will inform future Agency efforts. The EPA values the 

 

13 76 FR 65434. 

14 US EPA, NPDES Electronic Reporting Rule, RIN 2020-AA47, Pre-proposal. See 

http://yosemite.epa.gov/opei/rulegate.nsf/byRIN/2020-AA47.

15 Id.

16 US Government Accountability Office, Concentrated Animal Feeding Operations—EPA Needs More Information 

and a Clearly Defined Strategy to Protect Air and Water Quality, GAO–08–944 5 (2008), Appendix V: Comments 

from the US EPA, September 24, 2008. Available at http://www.gao.gov/new.items/d08944.pdf.

17 US EPA, NPDES Electronic Reporting Rule, RIN 2020-AA47, Pre-proposal. See 

http://yosemite.epa.gov/opei/rulegate.nsf/byRIN/2020-AA47.
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relationships that have been established and maintained between producers and state agencies

and the U.S. Department of Agriculture (USDA), because the direct communication that takes 

place between them often yields information exchange that is beyond the information on a permit 

application. The EPA wishes to utilize these established networks by working with federal 

agencies, states, and local partners to obtain CAFO information. In addition to working with 

these groups to exchange information mainly on permitted CAFOs, the EPA may need to use 

other existing sources of data, such as data available from non-NPDES state programs, Dun and 

Bradstreet, state registrations, or satellite imagery and aerial photographs, to obtain information 

about unpermitted CAFOs. For example, the EPA has used satellite imagery to identify

operations that confine animals.18 The EPA recognizes there are limitations to the use of satellite 

imagery and aerial photographs.

Environmental groups indicated in their comments that it is important for the EPA to possess 

information about CAFOs that either have not sought or been issued NPDES permits or nonNPDES permits (i.e. “unpermitted CAFOs”). Because CAFOs with NPDES coverage have 

already submitted data to state and the EPA permitting authorities, the EPA agrees with 

environmental groups that the greatest benefit from the proposed rule might be derived from 

collecting data from unpermitted CAFOs. As state commenters pointed out, however, CAFOs

without NPDES permit coverage may be less likely to comply with the proposed rule either 

because they are unaware of the requirement or because they do not understand that the 

requirement applies them. Commenters suggested the lack of Internet access in many rural areas 

where CAFOs are located could result in a failure to respond. While the EPA agrees that it is 

important for the Agency to have information on unpermitted CAFOs, the EPA has decided that 

the best way to use limited Agency resources is to obtain information from states first, some of 

which includes CAFOs without NPDES permit coverage.

19

 Since the Agency is not 

promulgating a rule, it can employ resources that would have been spent on implementation of 

the rule to reviewing existing sources of information and focus resources on identifying CAFOs 

that do not have NPDES permit coverage. The EPA will continue to work with USDA, U.S. 

Geological Survey, and other agencies to address sources of nutrient pollution. The EPA also 

plans to work with USDA to stay up-to-date on industry trends, which can be used in strategic 

planning. 

Some commenters questioned why the EPA proposed to collect information only about CAFOs 

instead of all operations that confine animals. In the absence of a new rule, the EPA’s concerted 

effort will aim to obtain CAFO information. In 2003, EPA determined that CAFOs generate 60 

percent of the manure generated by operations that confine animals, and account for nearly 70 

percent of those operations that generate nutrients in excess of cropland needs.20 Limited 

Agency resources warrant a targeted approach that will result in the greatest impact on water 

quality.

 

18 US EPA, Geospatial Conference Presentation: GIS and Concentrated Animal Feeding Operations, July 2010. See 

Docket EPA-HQ-OW-2011-0188. Available at www.regulations.gov.

19 US EPA, Draft NPDES CAFO Reporting Rule Information Search, March 1, 2012. See Docket EPA-HQ-OW2011-0188. Available at www.regulations.gov.

20 68 FR 7180. Available at http://www.epa.gov/npdes/regulations/cafo_fedrgstr.pdf.
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Some commenters indicated concern for environmental justice (EJ) communities that are 

affected by the environmental impact of CAFOs. While the EPA is not promulgating a rule, the 

Agency is conducting a concerted effort to obtain CAFO information from existing sources. 

This information will assist EJ communities by broadening the scope of enforcement and 

permitting capabilities at the EPA. At this time, a new rule is not necessary to enhance the 

Agency's ability to positively impact EJ communities. The Agency maintains discretion and 

ability to initiate rulemaking in the future if the Agency deems a rulemaking is necessary to meet 

the Agency's EJ goals and responsibilities. 

Regardless of the EPA’s approach to collecting CAFO information, data accuracy and reliability 

are an issue. A national survey requirement (option 1 of the proposed rule) does not mean that 

reported data will be complete or accurate. The EPA understands that a rule requiring CAFO 

information would not necessarily ensure accurate or complete information because such a rule 

would require CAFOs to respond to a survey. However, a CAFO without NPDES permit 

coverage may not self-report because the owner or operator may not be aware of the survey 

requirement. Commenters suggested the lack of Internet access in many rural areas where many 

CAFOs are located could result in a failure to respond. 

Any survey requirement captures a single time period, and operational practices at a CAFO can

change on a daily basis. States, on the other hand, have databases that are regularly updated to 

reflect changes in permit status, animal numbers, and other relevant CAFO information. 

Because CAFOs are dynamic systems, the EPA may be able to obtain up-to-date information by 

working with states and their systems to track CAFO information. 

Some states also commented that resources likely would be diverted from program 

implementation in order to carry out the proposed rule, and expressed interest in exchanging 

information without a regulatory requirement. If the EPA can obtain the desired information 

without a rule, then the Agency can reduce the regulatory burden on states and CAFOs while 

obtaining the information in a timely manner. 

Due in part to the aforementioned reasons, the EPA has decided to first seek to obtain CAFO 

information from states and other existing sources of information. It is possible that this 

approach may yield more useful results than a self-reporting requirement. For instance, the EPA 

has found that some states track data elements that go beyond the five items to be collected under 

the proposed rule, as well as information on animal operations that aren’t defined as CAFOs.

21

 

After concluding the concerted effort to obtain CAFO information from existing sources, the 

EPA will reconsider whether it is necessary to promulgate a reporting requirement.

The EPA continues to support environmental stewardship and partnership efforts.

The EPA recognizes that stewardship and recognition programs, education or technical 

assistance programs, and incentive based programs, frequently carried out in coordination with 

other partners such as states, industry, or USDA, often result in improvements in industry 

practices. For example, the EPA maintains the Ag Center, (http://www.epa.gov/agriculture), 

 

21 US EPA, Draft NPDES CAFO Reporting Rule Information Search, March 1, 2012. See Docket EPA-HQ-OW2011-0188. Available at www.regulations.gov.
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which provides compliance assistance and environmental stewardship information related to 

animal feeding operations. 

The EPA partners with USDA and state land grant universities to promote environmental 

stewardship and improve manure and nutrient management practices. For example, the EPA 

partners with USDA’s extension program to offer a wide range of compliance and environmental 

stewardship information through the Livestock and Poultry Environmental Learning Center 

available at http://www.extension.org/animal_manure_management. Also, the U.S. Poultry & 

Egg Association, a trade association representing a segment of the poultry industry across the 

nation, is developing educational modules that will serve as a tool for producers to help them 

understand, implement and maintain nutrient best management practices. The U.S. Poultry and 

Egg Association plans to work with the EPA in the development of the modules to ensure that 

the guidance and education provided to their producers effectively aides in compliance with 

CWA regulations applicable to this industry. The EPA will continue to support and develop 

mechanisms for promoting environmental stewardship and compliance. 

The EPA continues to support transparency. 

The EPA works to ensure public trust and establish a system of transparency, public 

participation, and collaboration. The Agency will take appropriate action, consistent with law 

and policy, to disclose information rapidly in forms that the public can readily find and use. 22 

Any information obtained by the EPA will be made available in accordance with 40 CFR Part 2. 

The EPA has satisfied the settlement agreement.

The Federal Register notice for final action on the proposed NPDES CAFO Reporting Rule 

satisfies the terms of the settlement agreement between the EPA and the Natural Resources 

Defense Council, Waterkeeper Alliance, and Sierra Club. The settlement agreement did not 

commit the EPA to the substance of any final action.

23 The EPA committed to take final action 

on the proposed rule by July 13, 2012. The settlement agreement expressly stated that nothing in 

the agreement shall be construed to limit or modify the discretion accorded the EPA by the CWA 

or by general principles of administrative law.

24

In Summation

The EPA believes that working through existing state partnerships will yield timely results in 

obtaining CAFO information. The EPA has begun a concerted effort to obtain CAFO 

information from states and other existing sources of information. The EPA also established, in 

June 2012, a memorandum of understanding (MOU) with ACWA that will assist the Agency in 

obtaining information about CAFOs. This collaborative effort between the EPA and ACWA will 

focus on identifying CAFOs and assist in the EPA obtaining pertinent information about CAFOs 

on a state by state basis. The EPA may initiate a future rulemaking to collect CAFO information 

if existing sources do not provide adequate information.

 

22The President of the United States of America, Memorandum for the Heads of Executive Departments and 

Agencies - Transparency and Open Government, January 21, 2009. Available at 

http://www.whitehouse.gov/the_press_office/TransparencyandOpenGovernment. 

23 76 FR 65435.

24 Id.