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Summary of OMB Review for the Proposed NPDES CAFO Reporting Rule: Identification 

of the Substantive Changes to the Proposed National Pollutant Discharge Elimination 

System (NPDES) Concentrated Animal Feeding Operation (CAFO) Reporting Rule (EPA–

HQ–OW–2011–0188) Following Submission of that Draft Proposed Rule to Office of 

Management and Budget for Review

I. Introduction

Consistent with section 6(a)(3)(E) of Executive Order 12866, this document identifies the 

substantive changes made by the U.S. Environmental Protection Agency (EPA) to the proposed 

action, National Pollutant Discharge Elimination System (NPDES) Concentrated Animal 

Feeding Operation (CAFO) Reporting Rule, after the EPA submitted it to the Office of 

Information and Regulatory Affairs of the Office of Management and Budget (OMB) for review 

on August 4, 2011. 

The substantive changes made by the EPA after the Agency submitted the proposed rule to OMB 

on August 4, 2011 are discussed in Section II below. The substantive changes made by the EPA 

in response to comments made by OMB, following submission to OMB on August 4, 2011, are 

discussed in Section III below. 

The remaining changes made by the EPA to the August 4, 2011 version of the rulemaking 

package were non-substantive in nature (i.e., clarifying or enhancing the preamble’s statements 

of basis and purpose, clarifying the rule’s language or presentation, or ensuring that statements 

and figures in the preamble and rule were consistent with the supporting record). 

II. Substantive Changes Made by EPA Independent of Comments Made by OMB

There were no substantial changes made by EPA independent of comments made by OMB.

III. Substantive Changes Made by the EPA in Response to Comments Made by OMB 

A. Co-proposing a second option to require only CAFOs in targeted areas to provide 

information rather than seek comment on an alternative targeted approach.

During E.O.12866 review, EPA modified the proposed action to propose a second regulatory

option regarding which CAFOs would be required to report information to EPA. In the August 

4, 2011 version, the proposed regulation would have required all CAFOs submit information to 

EPA; and as an alternative approach, EPA sought comment on a targeted survey of CAFOs. In 

the revised proposal developed during E.O. 12866 review, the EPA is co-proposing both options. 

The targeted option proposes an additional regulatory option whereby only CAFOs in focus 

watersheds identified by the EPA would be required to report information. 
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B. State responsibilities 

The preamble to the proposed rule as submitted to OMB stated that all CAFOs would be required 

to submit the information to the EPA unless a state chooses to provide the information on behalf 

of a CAFO. In addition to allowing a state to choose to provide the information, the preamble 

also included an alternative approach to the proposed rule that would require state NPDES 

regulatory agencies to submit available information on CAFOs, and only require CAFOs to 

report where states fail to provide or did not have on file the necessary information. During E.O. 

12866 review, OMB suggested that the EPA revise the preamble to clarify the differences 

between the proposed regulatory option and the alternative approach. To clarify that state 

submission under proposed option 1 is voluntary, the EPA added the following statements to the 

preamble, “EPA does not have a preference regarding whether individual CAFOs submit the 

information or whether states submit it for them. The EPA does not anticipate that states that do 

not possess the CAFO information requested would choose to participate. In other words, the 

EPA does not anticipate that states would participate if participation would require them to 

undertake additional efforts to collect this information from CAFOs. Proposed paragraph –

122.23(k)(2) provides flexibility to states by allowing each state to determine if it can easily

submit the information to the EPA given the state’s resources.” 

C. Penalties 

The proposed rule as submitted to OMB referenced, but did not discuss, section 309 of the 

CWA, which provides federal enforcement authority to the EPA. During E.O. 12866 review, at 

OMB’s suggestion, the EPA included a section called, Failure to provide the information as 

required by today’s proposed action. This section explains CAFO owners or operators that fail

to submit the information in accordance with the requirements specified in the proposed action 

would be in violation of the CWA.

D. Proposed ongoing reporting requirement for CAFOs that do not have NPDES 

permit coverage

The proposed rule as submitted to OMB required CAFOs that do not have NPDES permit 

coverage to submit the information or update previous submissions of the information every ten 

years. During E.O. 12866 review, OMB suggested that the proposed rule should solicit comment 

on allowing unpermitted CAFOs relief from any ongoing reporting requirements. The EPA 

modified the proposal and now seeks comment on resubmission requirements for CAFOs 

without NPDES permit coverage. 

E. Discussion of human health and environmental impacts 

The proposed rule as submitted to OMB discussed the potential human health and environmental 

impacts of manure, litter and process wastewater generated by CAFOs. At OMB’s suggestion, 

the EPA revised the discussion of heavy metals to clarify whether health risks have been 

connected to heavy metal concentrations or exposure from discharges by CAFOs. The EPA 

added the following: “While metals in agronomically-applied manures should pose little risk to 

human health and the environment, repeated application of manures above agronomic rates could 
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result in exceedances of the cumulative metal loading rates established in Part 503, thereby 

potentially impacting human health and the environment. US EPA, Preliminary Data Summary

Feedlots Point Source Category Study, EPA-821-R-99-002 (1999), pp. 26-27.” 

F. Examples of data collection from unpermitted entities

The proposed rule as submitted to OMB included examples of where the EPA used section 308 

of the CWA to collect information. During E.O. 12866 review, OMB suggested that the EPA 

include in the examples where the Agency has used its 308 authority to collect information from 

unpermitted entities. The EPA added: “Recently, EPA conducted surveys to help assess 

whether the Agency should revise its existing stormwater requirements, and if so, how and to 

what extent it should revise these requirements. The purpose of the surveys was to collect 

baseline information to inform EPA’s analyses of a possible stormwater rulemaking proposal. 

As part of this effort, the EPA sent questionnaires to regulated MS4s, non-regulated MS4s, 

transportation MS4s, and NPDES permitting authorities.”

G. Electronic submission of information 

The proposed rule as submitted to OMB would require owners and operators to use an official 

survey form provided by the EPA to submit, either electronically or by certified mail, the 

required information to the EPA. The proposed rule as submitted to OMB would allow CAFOs 

an option to waive the electronic submission requirement if the information management system 

is otherwise unavailable, or the use of the Agency’s information management system would 

cause undue burden or expense. During E.O. 12866 review, OMB suggested clarifying how a 

CAFO would request a waiver, and explain whether the CAFO would have to submit a waiver 

request and receive approval prior to submitting the information. The EPA added, “An owner or 

operator may request a waiver from this electronic requirement at the time of submission and 

does not need to obtain approval from EPA prior to submitting a hard copy of the form.” 

H. Alternative approaches 

The proposed rule as submitted to OMB sought comment on alternative approaches to an 

information gathering survey for CAFOs. During E.O. 12866 review, OMB suggested clarifying 

whether the alternative approach would rely on alternative voluntary mechanisms for promoting 

environmental stewardship and compliance . To clarify, the EPA added “under this alternative 

approach, the EPA would expand its network of compliance assistance, outreach tools and 

partnerships with industry to assist in identifying and addressing the most significant water 

quality problems. Comprehensive compliance assistance and outreach efforts are tools a 

regulatory program can use in partnerships with industry to proactively protect and maintain 

water quality.”

I. Authorized Representative

The proposed rule as submitted to OMB required CAFOs to provide contact information for the 

CAFO owner or operator. During E.O. 12866 review, OMB requested that EPA allow the 

CAFO owner or operator to provide contact information for either the CAFO owner, operator or 
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an authorized representative. EPA modified the proposal to allow authorized representatives to 

serve as a CAFO’s point of contact to preserve the privacy of a CAFO owner if desired. An 

authorized representative is now defined in the proposal as “an individual who is involved with 

the management or representation of the CAFO. The authorized representative must be located 

within reasonable proximity to the CAFO, and must be authorized and sufficiently informed to 

respond to inquiries from EPA on behalf of the CAFO.”

J. Location of a CAFO’s Production Area

The proposed rule as submitted to OMB required that a CAFO provide the location of its 

production area by latitude and longitude coordinates. During E.O. 12866 review, OMB 

requested EPA allow CAFOs to report the location of their production areas in either latitude and 

longitude coordinates or by providing the street address of the production area. The EPA 

amended the proposal to allow CAFOs the flexibility to provide either latitude and longitude 

coordinates or the street address of the CAFO’s production area. The preamble seeks comment 

on alternative location identifying information to latitude and longitude or the street address of 

the production area.
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Documentation of changes made during E.O. 12866 review CWA 308 2040-AF22 NPRM 

FRN 

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 9 and 122 

[EPA–HQ–OW–2011–0188; FRL-XXXX-X] 

RIN 2040-AF22

National Pollutant Discharge Elimination System (NPDES) Concentrated Animal Feeding 

Operation (CAFO) Reporting Rule

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed Rule

SUMMARY: EPA co-proposes two options for obtaining basic information from CAFOs to support EPA in 

meeting its water quality protection responsibilities under the Clean Water Act (CWA). The purpose of 

this co-proposal is to improve and restore water quality by collecting facility-specific information that 

would improve EPA’s ability to effectively implement the NPDES program and to ensure that CAFOs are 

complying with the requirements of the CWA. Under one co-proposed option, EPA would use the 

authority of CWA section 308 to obtain certain identifying information from all CAFOs. Under the other 

option, EPA could use the authority of CWA section 308 to obtain this information from CAFOs that fall 

within areas that have been identified as having water quality concerns likely associated with CAFOs

(focus watersheds). However, EPA would make every reasonable effort to assess the utility of existing 

publicly available data and programs to obtain identifying information about CAFOs by working with 

partners at the federal, state, and local level before determining whether an information collection 

request is necessary. This information would allow EPA to achieve more efficiently and effectively the 

water quality protection goals and objectives of the CWA. EPA also requests comment on three 
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alternative approaches to gather information about CAFOs, which could be used to achieve the 

objectives of this proposed action in protecting water quality. 

DATES: Comments on this proposed action must be received on or before [within 60 days after 

publication]. EPA plans to hold two Webinars in November, 2011 to provide an overview of, 

and answer questions about, the proposed rule requirements.

ADDRESSES: 

Comments: Submit your comments, identified by Docket ID No. EPA–HQ–OW–2011–0188, by

one of the following methods:

 www.regulations.gov: Follow the on-line instructions for submitting comments.

 Email: ow-docket@epa.gov, Attention Docket ID No. EPA–HQ–OW–2011–0188.

 Fax: (202) 566 – 9744 

 Mail: Water Docket, Environmental Protection Agency, Mailcode: 28221T, Attention 

Docket ID No. EPA–HQ–OW–2011–0188, 

1200 Pennsylvania Ave., NW., Washington, DC 20460. In addition, please mail a copy

of your comments on the information collection provisions to the Office of Information 

and Regulatory Affairs, Office of Management and Budget (OMB), Attn: Desk Officer 

for EPA, 725 17th St. NW., Washington, DC 20503.

 Hand Delivery: EPA Docket Center, EPA West, Room 3334, 1301 Constitution Avenue, 

NW, Washington, DC, Attention Docket ID No. EPA–HQ–OW–2011–0188. Such 

deliveries are accepted only during the Docket Center’s normal hours of operation, and 

special arrangements should be made for deliveries of boxed information.

Instructions: Direct your comments to Docket ID No. EPA–HQ–OW–2011–0188. EPA's policy

is that all comments received will be included in the public docket without change and could be 
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made available online at www.regulations.gov, including any personal information provided, 

unless the comment includes information claimed to be Confidential Business Information (CBI) 

or other information whose disclosure is restricted by statute. Do not submit information that 

you consider to be CBI or otherwise protected through www.regulations.gov or e-mail. The 

www.regulations.gov website is an “anonymous access” system, which means that EPA will not 

know your identity or contact information unless you provide it in the body of your comment. If 

you send an e-mail comment directly to EPA without going through www.regulations.gov your 

e-mail address will be automatically captured and included as part of the comment that is placed 

in the public docket and made available on the Internet. If you submit an electronic comment, 

EPA recommends that you include your name and other contact information in the body of your 

comment and with any disk or CD-ROM you submit. If EPA cannot read your comment 

because of technical difficulties and cannot contact you for clarification, EPA might not be able 

to consider your comment. Electronic files should avoid the use of special characters, any form 

of encryption, and be free of any defects or viruses. For additional information about EPA’s 

public docket visit the EPA Docket Center homepage at 

http://www.epa.gov/epahome/dockets.htm. For additional instructions on submitting comments, 

go to the SUPPLEMENTARY INFORMATION section of this document.

Docket: All documents in the docket are listed in the www.regulations.gov index. Although 

listed in the index, some information is not publicly available, e.g., CBI or other information 

whose disclosure is restricted by statute. Certain other material, such as copyrighted material, 

will be publicly available only in hard copy. Publicly available docket materials are available 

either electronically in www.regulations.gov or in hard copy at the Water Docket, EPA/DC, EPA 

West, Room 3334, 1301 Constitution Ave., NW., Washington, DC 20004. The Public Reading 
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Room is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding federal holidays. 

The telephone number for the Public Reading Room is (202) 566-1744, and the telephone 

number for the Water Docket is (202) 566-2426.

Webinar: EPA plans to hold two Webinars in November, 2011 to provide an overview of, and 

answer questions about, the proposed rule requirements. Information about how to register and 

access the Webinar can be found on EPA’s website at http://cfpub.epa.gov/npdes/afo/aforule.cfm

no later than October 24, 2011. 

FOR FURTHER INFORMATION CONTACT: For additional information contact, Becky 

Mitschele, Water Permits Division, Office of Wastewater Management (4203M), U.S.

Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460; 

telephone number: (202) 564-6418; fax number (202) 564-6384; e-mail address: 

mitschele.becky@epa.gov.

SUPPLEMENTARY INFORMATION:

I. General Information

A. Does This Action Apply to Me?

B. What Should I Consider as I Prepare My Comments for EPA?

C. Under What Legal Authority is this Rule Proposed?

II. Background

A. The Clean Water Act

B. Environmental and Human Health Impacts of CAFOs 

C. United States Government Accountability Office Report

D. United States Office of Management and Budget Report 
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E. Litigation Regarding the 2008 Revised NPDES Permit Regulation and Effluent 

Limitations Guidelines for CAFOs in Response to the Waterkeeper Decision

III. This Proposed Action 

A. Proposed Action Overview and Objectives

B. CWA Section 308 Data Collection and EPA’s Approach Toward Collecting FacilitySpecific Information from CAFOs Through Rulemaking 

C. Option 1 Would Apply to All CAFOs 

1. What Information Would EPA Require as Part of an Information Gathering 

Survey for CAFOs and Why is EPA Proposing to Require this Information?

2. What Information Would EPA Not Require as Part of the Collection Request 

Survey for CAFOs?

3. Who Would be Required to Submit the Information?

4. When Would States that Choose to Submit the Information be Allowed to 

Provide the Information to EPA and When Would CAFOs be Required to 

Submit the Information to EPA?

5. How Would CAFOs Submit the Information to EPA?

6. How Would States Submit the Information to EPA?

D. Option 2 Would Apply to CAFOs in a Focus Watershed

1. How Would EPA Identify a Focus Watershed? 

2. Considerations When Determining Whether a Focus Watershed Meets the 

Criteria for Water Quality Protection

3. How Would EPA Identify CAFOs from Which Additional Information is 

Needed?
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4. What Information Would EPA Require as Part of an Information Gathering 

Survey for CAFOs in a Focus Watershed?

5. How Would EPA Geographically Define a Focus Watershed?

6. How would EPA inform CAFOs of Their Responsibility if They Were 

Required to Respond to an Information Request?

7. When Would CAFOs in a Focus Watershed be Required to Submit the 

Information to EPA?

8. How Would CAFOs in a Focus Watershed Submit Information to EPA?

E. Failure to Provide the Information as Required by This Proposed Action 

F. Alternative Approaches to Achieve Rule Objectives 

1. Use of Existing Data Sources 

2. Alternative Mechanisms for Promoting Environmental Stewardship and 

Compliance 

3. Require Authorized States to Submit CAFO Information from their CAFO 

Regulatory Programs and Only Collect Information from CAFOs if a State 

does not Report

IV. Impact Analysis

A. Benefits and Costs Overview

B. Administrative Burden Impacts

V. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory Planning and Review and Executive Order 

13563: Improving Regulation and Regulatory Review

B. Paperwork Reduction Act
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C. Regulatory Flexibility Act

D. Unfunded Mandates Reform Act

E. Executive Order 13132: Federalism

F. Executive Order 13175: Consultation and Coordination with Indian Tribal 

Governments

G. Executive Order 13045: Protection of Children from Environmental Health and Safety 

Risks

H. Executive Order 13211: Actions Concerning Regulations That Significantly Affect 

Energy Supply, Distribution, or Use

I. National Technology Transfer and Advancement Act

J. Executive Order 12898: Federal Actions to Address Environmental Justice in Minority 

Populations and Low-Income Populations

I. General Information

A. Does This Action Apply to Me?

This proposed rulemaking would apply to concentrated animal feeding operations 

(CAFOs) as defined in the National Pollutant Discharge Elimination System (NPDES) 

regulations at 40 CFR 122.23(b)(2), pursuant to section 502(14) of the Clean Water Act 

(“CWA”). An animal feeding operation (AFO) is a CAFO if it meets the regulatory definition of 

a Large or Medium CAFO (40 CFR 122.23 (b)(4) or (6)) or has been designated as a CAFO (40 

CFR 122.23 (c)) by the NPDES permitting authority or by EPA. The following table provides 

the size thresholds for Large, Medium and Small CAFOs in each animal sector. 

Table 1 – SUMMARY OF CAFO SIZE THRESHOLDS FOR ALL SECTORS

Sector Large Medium1Small2
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Cattle or cow/calf 

pairs.....................

1,000 or 

more.......

300–

999.............

Less than 300.

Mature diary

cattle...............................

700 or 

more..........

200–

699............. 

Less than 200.

Veal 

calves.....................................

......

1,000 or 

more.......

300–

999............. 

Less than 300. 

Swine (weighing over 55 

pounds)................

2,500 or 

more......

750–

2,499........... 

Less than 750. 

Swine (weighing less than 55 

pounds)...........

10,000 or 

more......

3,000–

9,999......... 

Less than 3,000.

Horses.......................................

..........

500 or 

more..........

150–

499............. 

Less than 150.

Sheep or 

lambs......................................

10,000 or 

more......

3,000–9,999 

........

Less than 3,000. 

Turkeys....................................

...........

55,000 or 

more......

16,500–

54,999...... 

Less than 

16,500.

Laying hens or broilers (liquid manure 

handling system).

30,000 or 

more......

9,000–

29,999....... 

Less than 9,000.

Chickens other than laying hens (other 

than a liquid manure handling system).

125,000 or 

more....

37,500–124,999 

...

Less than 

37,500.

Laying hens (other than a liquid 

manure handling system).

82,000 or 

more......

25,000–

81,999...... 

Less than 

25,000. 

Ducks ( other than a liquid manure 

handling system).

30,000 or 

more......

10,000–29,999 

.....

Less than 

10,000. 

Ducks (liquid manure handling 

system) ........

5,000 or 

more.......

1,500–

4,999......... 

Less than 1,500. 

Notes:

1May be designated or must meet one of the following two criteria to be defined as a medium 

CAFO: (A) Discharges pollutants through a man-made device; or (B) directly discharges 

pollutants into waters of the United States which pass over, across, or through the facility or 

otherwise come into direct contact with the confined animals. 40 CFR 122.23(b)(6).

2 Not a CAFO by regulatory definition, but may be designated as a CAFO on a case-by-case 

basis. 40 CFR 122.23(b)(9). 
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That table is not intended to be exhaustive, but rather provides a guide for readers 

regarding entities likely to be regulated by this proposed rulemaking. The table lists the types of 

entities that EPA is currently aware of that could be regulated by this action. Other types of 

entities not listed in the table could also be CAFOs. The owners or operators of AFOs that have 

not been designated and that do not confine the required number of animals to meet the 

definition of a Large or Medium CAFO are not required to submit information. 

To determine whether your operation is a CAFO, you should carefully examine the 

applicability criteria in 40 CFR 122.23. If you have questions regarding the applicability of this 

action to a particular entity, consult the person listed in the preceding FOR FURTHER 

INFORMATION CONTACT section.

B. What Should I Consider as I Prepare My Comments for EPA?

1. Tips for Preparing Your Comments. When submitting comments, remember to:

• Identify the rulemaking by docket number and other identifying information (subject 

heading, Federal Register date and page number).

• Follow directions - The agency might ask you to respond to specific questions or organize 

comments by referencing a Code of Federal Regulations (CFR) part or section number.

• Explain why you agree or disagree, suggest alternatives, and substitute language for your 

requested changes.

• Describe any assumptions and provide any technical information and/or data that you used.

• If you estimate potential costs or burdens, explain how you arrived at your estimate in 

sufficient detail to allow for it to be reproduced.

• Provide specific examples to illustrate your concerns, and suggest alternatives.

• Explain your views as clearly as possible.
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• Make sure to submit your comments by the comment period deadline identified.

2. Submitting Comments to EPA.

Direct your comments to Docket ID No. EPA–HQ–OW–2011–0188. EPA’s policy is 

that all comments received will be included in the public docket without change and could be 

made available online at http://www.regulations.gov, including any personal information 

provided, unless the comment includes information claimed to be Confidential Business 

Information (CBI) or other information whose disclosure is restricted by statute. The 

http://www.regulations.gov website is an “anonymous access”' system, which means that EPA 

will not know your identity or contact information unless you provide it in the body of your 

comment. If you send an e-mail comment directly to EPA without going through 

http://www.regulations.gov your e-mail address will be automatically captured and included as 

part of the comment that is placed in the public docket and made available on the Internet. If you 

submit an electronic comment, EPA recommends that you include your name and other contact 

information in the body of your comment and with any disk or CD-ROM you submit. If EPA 

cannot read your comment because of technical difficulties and cannot contact you for 

clarification, EPA might not be able to consider your comment. Electronic files should avoid the 

use of special characters, any form of encryption, and be free of any defects or viruses. For 

additional information about EPA’s public docket, visit the EPA Docket Center homepage at 

http://www.epa.gov/epahome/dockets.htm.

3. Submitting Confidential Business Information. 

Do not submit CBI information to EPA through www.regulations.gov or e-mail. Clearly 

mark the part of or all the information that you claim to be CBI. For CBI information on a disk 

or CD ROM that you mail to EPA, mark the outside of the disk or CD ROM as CBI and then 
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identify electronically within the disk or CD ROM the specific information that is claimed as 

CBI. In addition to one complete version of the comment that includes information claimed as 

CBI, a copy of the comment that does not contain the information claimed as CBI must be 

submitted for inclusion in the public docket. Information so marked will not be disclosed except 

in accordance with procedures set forth in 40 CFR part 2.

C. Under What Legal Authority is This Proposed Action Issued?

Today’s proposed rulemaking is issued under the authority of sections 301, 304, 305, 

308, 309, 402, 501, and 504 of the CWA, 33 U.S.C. 1311, 1314, 1315, 1318, 1319, 1342, and 

1361.

II. Background

A. The Clean Water Act

Congress passed the Federal Water Pollution Control Act Amendments of 1972, (“Clean 

Water Act” or “CWA”) to ‘‘restore and maintain the chemical, physical, and biological integrity 

of the nation’s waters’’ 33 U.S.C. 1251(a). Section 301(a) of the CWA prohibits the “discharge 

of any pollutant by any person” except in compliance with the Act. 33 U.S.C. 1311(a). Among 

the core provisions, the CWA establishes the National Pollutant Discharge Elimination System 

(NPDES) permit program to authorize and regulate the discharge of pollutants from point 

sources to waters of the United States. 33 U.S.C. 1342. Section 502(14) of the CWA includes 

the term “CAFO” in the definition of “point source;” specifically, the term “point source” is 

defined as “any discernible, confined and discrete conveyance, including but not limited to any . 

. . concentrated animal feeding operation . . . from which pollutants are or may be discharged . . 

.” 33 U.S.C. 1362(14). Section 501 authorizes the Administrator to promulgate rules to carry
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out the Administrator’s functions under the CWA. EPA has issued comprehensive regulations 

that implement the NPDES program at 40 CFR Parts 122-124. 

Section 308 of the CWA authorizes EPA to collect information from the “owner or 

operator of any point source” for the following purpose: 

to carry out the objectives of [the CWA], including but not limited to (1) developing or 

assisting in the development of any effluent limitation, or other limitation, prohibition, or 

effluent standard, pretreatment standard, or standard of performance under [the CWA]; 

(2) determining whether any person is in violation of any such effluent limitation, or 

other limitation, prohibition or effluent standard, pretreatment standard, or standard of 

performance; (3) any requirement established under [§ 308 of the CWA]; or (4) carrying 

out [sections 305, 311, 402, 404 (relating to state permit programs), 405 and 504 of the 

CWA] . . . . 33 U.S.C. 1318(a). 

Section 308(a)(3)(A) of the Act provides that, in furtherance of the stated objectives, 

EPA may require owners or operators of point sources to establish and maintain records; make 

reports; install, use, and maintain monitoring equipment; sample effluent; and provide such other 

information as EPA may reasonably require to carry out the objectives of the Act. 33 U.S.C. 

1318(a). Section 309 of the CWA authorizes EPA to assess penalties for violations of section 

308 of the CWA. 33 U.S.C. 1319.

B. Environmental and Human Health Impacts of CAFOs

1.

2.

3.

4.
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5.

6.

7.

8.

9.













Despite more than 35 years of regulating CAFOs, reports of water quality impacts from 

large animal feeding operations persist. At the time of the 2003 CAFO rulemaking, the Agency

received estimates from USDA indicating that livestock operations where animals are confined

produce more than 300 million tons of manure annually. 68 FR 7180. On the basis of that 

figure, EPA estimated that animals raised in confinement generate more than three times the 

amount of raw waste than the amount of waste that is generated by humans in the Unites States. 

Id. For the 2003 CAFO rulemaking, EPA estimated that CAFOs collectively produce 60 percent 

of all manure generated by farms that confine animals. Id. 

Pollutants from manure, litter, and process wastewater can affect human health and the 

environment. Whether from poultry, cattle, or swine, the manure, litter and process wastewater 

contains substantial amounts of nutrients (nitrogen, phosphorus, and potassium), pathogens, 
Page 18 of 102

heavy metals, and smaller amounts of other elements and pharmaceuticals. This manure, litter,

and process wastewater commonly is applied to crops associated with CAFO operations or 

transferred off site. Where over-applied or applied before precipitation events, excess nutrients 

can flow off of agricultural fields, causing harmful aquatic plant growth, commonly referred to 

as “algal blooms,” which can cause fish kills and contribute to “dead zones.” In addition, algal 

blooms often release toxins that are harmful to human health. 

To improve the Agency’s ability to estimate ecological and human risk for chemical and 

microbial contaminants that enter water resources, EPA is continuing research to evaluate the 

effect of CAFOs on surface and ground water quality. Effective control of pathogens originating 

in livestock manure or poultry litter could improve human and ecosystem health through 

reductions in waterborne disease organisms and chemicals. More than 40 diseases found in 

manure can be transferred to humans, including causative agents for Salmonellosis, 

Tuberculosis, Leptospirosis, infantile diarrheal disease, Q-Fever, Trichinosis, and Giardiasis. 

Exposure to waterborne pathogen contaminants can result from both recreational use of affected 

surface water (accidental ingestion of contaminated water and dermal contact during swimming) 

and from ingestion of drinking water derived from either contaminated surface water or 

groundwater. JoAnn Burkholder, et al., Impacts of Waste from Concentrated Animal Feeding 

Operations on Water Quality, 115 ENV’T HEALTH PERSPECTIVES 310 (2007).

Heavy metals such as arsenic, cadmium, iron, lead, manganese, and nickel are 

commonly found in CAFO manure, litter, and process wastewater. Some heavy metals, such as 

copper and zinc, are essential nutrients for animal growth – especially for cattle, swine and 

poultry. However, farm animals excrete excess heavy metals in their manure, which in turn is

spread as fertilizer, causing potential runoff problems. US EPA, RISK ASSESSMENT EVALUATION 
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FOR CONCENTRATED ANIMAL FEEDING OPERATIONS, EPA-600-R-04-042 (2004); and US EPA, 

DEVELOPMENT DOCUMENT FOR THE FINAL REVISIONS TO THE NATIONAL POLLUTANT DISCHARGE 

ELIMINATION SYSTEM REGULATION AND THE EFFLUENT GUIDELINES FOR CONCENTRATED 

ANIMAL FEEDING OPERATION, EPA-821-R-032-001 (2002). EPA reported approximately 80 to 

90 percent of the copper, zinc, and arsenic consumed is excreted. Possible adverse effects 

reported in the literature include the risk of phytotoxicity, groundwater contamination and 

deposition in river sediment that may eventually release to pollute the water. US EPA, RISK 

ASSESSMENT EVALUATION FOR CONCENTRATED ANIMAL FEEDING OPERATIONS, EPA-600-R-04-

042 (2004), pp. 43 - 46. Repeated application of manure above agronomic rates could result in 

exceedances of the cumulative metal loading rates established in EPA regulations at 40 CFR part 

503, thereby potentially impacting human health and the environment. US EPA, PRELIMINARY 

DATA SUMMARY FEEDLOTS POINT SOURCE CATEGORY STUDY, EPA-821-R-99-002 (1999), pp. 

26-27. The health hazards that may result from chronic exposure to heavy metals at certain 

concentrations can include kidney problems from cadmium, Public Health Statement Cadmium 

(CAS #7440-43-9), available at http://www.atsdr.cdc.gov/PHS/PHS.asp?id=46&tid=15; nervous 

system disorders, and neurodevelopmental problems (IQ deficits) from lead, LEAD AND 

COMPOUNDS (INORGANIC) (CASRN 7439-92-1), available at

http://www.epa.gov/iris/subst/0277.htm; and cardiovascular effects, diabetes, respiratory effects, 

nervous system problems, and reproductive effects and cancers from multiple tissues from 

arsenic, NRC ARSENIC IN DRINKING WATER, NATIONAL ACADEMY PRESS (2001), available at

http://www.nap.edu/openbook/0309076293/html/R1.html. 

To promote growth and to control the spread of disease, antibiotics, growth hormones 

and other pharmaceutical agents are often added to feed rations or water, directly injected into 
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animals, or administered via ear implants or tags. The annual amount of antimicrobial drugs sold 

and distributed in 2009 for use in food animals was 13.3 million kilograms or 28.8 million 

pounds. US FOOD AND DRUG ADMINISTRATION, 2009 SUMMARY REPORT ON ANTIMICROBIALS 

SOLD OR DISTRIBUTED FOR USE IN FOOD-PRODUCING ANIMALS (2010). This was a significant 

increase in the annual use from 8.8 million kilograms or approximately 18 million pounds 

reported in 1995. U.S. CONGRESS, OFFICE OF TECHNOLOGY ASSESSMENT, IMPACTS OF 

ANTIBIOTIC-RESISTANT BACTERIA, OTA-H-629 (1995). 

Most antibiotics are not metabolized completely and are excreted from the treated animal 

shortly after medication. As much as 80 – 90 percent of some administered antibiotics occur as 

parent compounds in animal wastes. SCOTT BRADFORD ET AL., REUSE OF CONCENTRATED 

ANIMAL FEEDING OPERATION WASTEWATER ON AGRICULTURAL LANDS, 37 J. ENV’T QUALITY 97 

(2008). Synthetic steroid hormones are extensively used as growth promoters for cattle in the 

United States. Id. Steroid hormones are of particular concern because there is laboratory

evidence that very low concentrations of these chemicals can adversely affect the reproduction of 

fish and other aquatic species. Id. The dosing of livestock animals with antimicrobial agents for 

growth promotion and prophylaxis may promote antimicrobial resistance in pathogens, 

increasing the severity of disease and limiting treatment options for sickened individuals. US 

EPA, DETECTING AND MITIGATING THE ENVIRONMENTAL IMPACT OF FECAL PATHOGENS 

ORIGINATING FROM CONFINED ANIMAL FEEDING OPERATIONS: REVIEW, EPA600-R-06-021 

(2005).

In the most recent National Water Quality Inventory, 29 states specifically identified 

animal feeding operations as contributing to water quality impairment. US EPA, NATIONAL 

WATER QUALITY INVENTORY: REPORT TO CONGRESS – 2004 REPORTING CYCLE, JANUARY 2009. 
Page 21 of 102

EPA-841-R-08-001. The findings of this report are corroborated by numerous reports and 

studies conducted by government and independent researchers that identify the animal livestock 

industry as an important contributor of surface water pollution. For example, the GAO found in 

its 2008 Report to Congressional Requesters that since 2002, 68 studies had been completed that 

examined air and water quality issues associated with animal feeding operations. Fifteen of 

those have directly linked air and water pollutants from animal waste to specific health or 

environmental impacts. GAO-08-944 (2008). For further discussion of this Report, see the 

section United States Government Accountability Office Report of this preamble. 

Water quality impacts from CAFOs may be due, in part, to inadequate compliance with 

existing regulations or to limitations in CAFO permitting programs. EPA believes that basic

information about CAFOs would assist the Agency in addressing those problems. Complete and 

accurate information allows governments, regulated communities, interest groups and the public 

to make more informed decisions regarding ways to protect the environment. 

C. United States Government Accountability Office Report

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

report to congressional requesters, recommending that EPA “should 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.” US GOV’T 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), page 48. EPA

officials stated that “EPA does not have data on the number and location of CAFOs nationwide 

and the amount of discharges from these operations. Without this information and data on how 

pollutant concentrations vary by type of operation, it is difficult to estimate the actual discharges 
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occurring and to assess the extent to which CAFOs may be contributing to water pollution.” , Id. 

page 31. The report also stated that “despite its long-term regulation of CAFOs, . . . EPA has 

neither the information it needs to assess the extent to which CAFOs may be contributing to 

water pollution, nor the information it needs to ensure compliance with the Clean Water Act.” Id.

page 48. 

The GAO report contains a review of EPA’s data on permitted CAFOs, and the GAO 

determined that data obtained from state agencies “are inconsistent and inaccurate and do not 

provide EPA with the reliable data it needs to identify and inspect permitted CAFOs 

nationwide.” Id. page 17. EPA had received its data from EPA Regional offices and from the 

states relating to permits issued to CAFOs between 2003 and 2008. GAO interviewed officials 

in 47 states to determine the accuracy and reliability of the data EPA collected. On the basis of 

that information, GAO determined that EPA’s data was not reliable and could not be used to 

identify trends in permitted CAFOs over the five-year period. In addition to reviewing EPA’s 

data on CAFOs, the GAO also reviewed data from other federal agencies. GAO concluded that 

no federal agency currently collects accurate and consistent data on the number, size, and 

location of CAFOs as defined by the CAFO regulations. Id. page 4. EPA responded to the draft 

GAO report stating that the Agency would develop a comprehensive national inventory of 

CAFOs. Id. page 76. 

D. United States Office of Management and Budget Report

More recently, the Office of Management and Budget (OMB) issued a report to Congress 

that describes the value of data collection efforts that minimize burden on reporting entities and 

have practical utility. In this report, OMB identifies the benefits and costs of federal regulations 

and unfunded mandates on states, local and tribal entities. US OFFICE OF MANAGEMENT AND 
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BUDGET, 2011 REPORT TO CONGRESS ON THE BENEFITS AND COSTS OF FEDERAL REGULATIONS 

AND UNFUNDED MANDATES ON STATE, LOCAL, AND TRIBAL ENTITIES (2001). This report 

stressed the importance of ensuring that regulations are “evidence-based and data-driven and 

hence based on the best available work in both science and social science.” Id. page 5. 

Specifically, the report briefly outlines steps and best practices that are consistent with OMB’s 

recent recommendations for “flexible, empirically informed approaches; increased openness 

about costs and benefits; and the use of disclosure as a regulatory tool.” Id. page 5. EPA 

believes that today’s co-proposed rulemaking would be consistent with OMB’s 

recommendations by promoting transparency and providing a comprehensive body of data that 

would serve as a basis for sound decision-making about EPA’s CAFO program.

E. Litigation Regarding the 2008 Revised NPDES Permit Regulation and Effluent 

Limitations Guidelines for CAFOs in Response to the Waterkeeper Decision

EPA’s regulation of discharges from CAFOs dates to the 1970s. EPA initially issued 

national effluent limitations guidelines and standards (ELGs) for feedlots, on February 14, 1974 

and NPDES CAFO regulations on March 18, 1976. 39 FR 5704; 41 FR 11458. In February

2003, EPA issued revised CWA permitting requirements, ELGs and new source performance 

standards for CAFOs. 68 FR 7176. The 2003 CAFO rule required the owners or operators of 

all CAFOs to seek coverage under an NPDES permit, unless they demonstrated no potential to 

discharge. With implementation of the 2003 rule, EPA and state permitting authorities would 

have obtained information about the universe of CAFOs. However, both environmental groups 

and industry challenged the 2003 final rule, and in February 2005, the U.S. Court of Appeals for 

the Second Circuit issued its decision in Waterkeeper Alliance et al. v. EPA, 399 F.3d 486 (2d 
Page 24 of 102

Cir. 2005). Among other things, the court held that EPA does not have authority under the 

CWA to require CAFOs that have only a potential to discharge to obtain NPDES permits. 

In 2008, EPA issued revised regulations in response to the Waterkeeper decision. 

Among other changes, the revised regulations required only those CAFOs that discharge or 

propose to discharge to obtain an NPDES permit. Subsequently, environmental groups and 

industry filed petitions for review of the 2008 rule, which were consolidated in the U.S. Court of 

Appeals for the Fifth Circuit. EPA signed a settlement agreement with the environmental 

petitioners in which EPA committed to propose a rule, pursuant to CWA section 308, that would 

require CAFOs to provide certain information to EPA. The settlement agreement provides the 

context and timeline for this proposed rulemaking.

The settlement agreement commits EPA to propose, by October 14, 2011, a rule under 

section 308 of the CWA, 33 U.S.C. 1318, to require all owners or operators of CAFOs, whether 

or not they have NPDES permits, to submit certain information to EPA. EPA agreed to propose

a rule requiring CAFOs to submit the information listed below; or, if EPA decides not to include 

one of the items in the proposal, EPA would identify the item(s), explain why EPA chose not to 

propose requiring that information and request comment on the excluded items. EPA committed 

to take final action on the rule by July 13, 2012. The settlement agreement does not commit 

EPA to the substance of any final action. The settlement agreement expressly states that nothing 

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

or by general principals of administrative law. Nor does the CWA require EPA to collect the 

information proposed in today’s notice.

The items listed in the settlement agreement to be addressed in the proposal include the 

following: 
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10. Name and address of the owner and operator;

11. If contract operation, name and address of the integrator;

12. Location (longitude and latitude) of the operation;

13. Type of facility;

14. Number and type(s) of animals;

15. Type and capacity of manure storage;

16. Quantity of manure, process wastewater, and litter generated annually by the CAFO;

17. Whether the CAFO land-applies;

18. Available acreage for land application;

19. If the CAFO land-applies, whether it implements a nutrient management plan for land 

application;

20. If the CAFO land-applies, whether it employs nutrient management practices and keeps 

records on site consistent with 40 CFR 122.23(e); 

21. If the CAFO does not land apply, alternative uses of manure, litter and/or wastewater;

22. Whether the CAFO transfers manure off site, and if so, quantity transferred to recipient(s) 

of transferred manure; and

23. Whether the CAFO has applied for an NPDES permit

On March 15, 2011, the Fifth Circuit Court of Appeals vacated the requirement in EPA’s 

2008 CAFO rule that CAFOs that “propose” to discharge obtain NPDES permits and held that 

CAFOs are not liable under the CWA for failing to apply for NPDES permits. Nat’l Pork 

Producers Council (NPPC) v. EPA, 635 F.3d 738 (5th Cir. 2011) (herein referred to as NPCC). 

The Fifth Circuit held that there must be an “actual discharge to trigger the CWA requirement to 

obtain a permit.” NPPC, 635 F.3d at 751. EPA’s authority to collect information under section 
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308 from “point sources” is broader than EPA’s authority to require and enforce a requirement to 

apply for an NPDES permit, as interpreted by NPPC. In particular, EPA is authorized under 

section 308 to collect information from any point source, and point sources are defined to include 

“any discernible, confined and discrete conveyance, including... any . . . concentrated animal 

feeding operation . . . from which pollutants are or may be discharged.” 33 U.S.C. 1362(14). 

Today’s proposed rulemaking is therefore not affected by this ruling of the Fifth Circuit Court of 

Appeals. 

In vacating the requirement that CAFOs that propose to discharge apply for an NPDES 

permit (the “duty to apply” provision), the court held that “there must be an actual discharge into 

navigable waters to trigger the CWA’s requirements and the EPA’s authority. Accordingly, 

EPA’s authority is limited to the regulation of CAFOs that discharge.” NPPC, 635 F.3d at 751. 

The court’s holding that EPA may regulate only those CAFOs that discharge is limited to the 

specific type of regulation at issue before the court: the duty to apply for a permit. Today’s 

notice proposes options for gathering basic information from CAFOs; it does not require them to 

obtain permits. 

EPA proposes to gather information from CAFOs pursuant to its authority in CWA 

section 308 to collect information. This information-gathering authority is broader than EPA’s 

authority to require permit coverage, which was at issue in NPPC. Section 308 authorizes 

information collection from “point sources,” which includes CAFOs that discharge or may

discharge.. 33 U.S.C 1318(a); 1362(14) (the term “point source” is defined as “any discernible, 

confined, and discrete conveyance, including... any . . . concentrated animal feeding operation . . 

. from which pollutants are or may be discharged . . .”). The plain language of section 308 

expressly authorizes information collection for a list of purposes including assistance in 
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developing, implementing, and enforcing effluent limitations or standards, such as the 

prohibition against discharging without a permit. 33 U.S.C 1318(a). The information EPA 

proposes to collect is limited to basic information about CAFOs and would enable EPA, states,

and others to determine the number of CAFOs in the United States and where they are located 

and would assist EPA in developing, implementing, and enforcing the requirements of the Act.

III. This Proposed Action

A. Proposed Action Overview and Objectives

The purpose of this co-proposal is to improve and restore water quality by collecting

facility-specific information that would improve EPA’s ability to effectively implement the 

NPDES program and to ensure that CAFOs are complying with the requirements of the CWA, 

including the requirement to obtain an NPDES permit if they discharge pollutants to waters of 

the U.S. Section 402 of the CWA authorizes EPA to regulate all point source discharges 

through the NPDES permitting program. The NPDES program regulates discharges from such 

industries as manufacturing and processing plants (e.g., textile mills, pulp and paper mills), 

municipal wastewater treatment plants, construction sites and CAFOs. Unlike many other point 

source industries, EPA does not have facility-specific information for all CAFOs in the United 

States. Facility location and basic operational characteristics that relate to how and why a 

facility may discharge is essential information needed to carry out NPDES programmatic 

functions, which include the following: 

 Evaluating NPDES program effectiveness;

 Identifying and permitting CAFOs that discharge;

 Conducting education and outreach to promote best management practices;
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 Determining potential sources of water quality impairments and taking steps to address 

those impairments;

 Estimating CAFO pollutant loadings – by facility, by watershed, or some other 

geographical area; and

 Targeting resources for compliance assistance or enforcement.

The six categories listed above represent key activities necessary to ensure that CAFOs 

are meeting their obligations under the CWA regarding protection of water quality from CAFO 

discharges and can be carried out most efficiently and effectively when EPA and states have 

access to facility contacts and other basic information about CAFOs. This information could be 

used to better protect public health and welfare of communities near CAFOs, including 

environmental justice for minority, indigenous or low-income communities. 

In today’s proposed rulemaking, EPA co-proposes two options by which the Agency may

achieve today’s rule objectives: Option 1 (Section C.) would apply to all CAFOs; Option 2 

(Section D) would identify focus watersheds where CAFO discharges may be causing water 

quality concerns and EPA could use its section 308 authority to obtain information from CAFOs 

in these areas. However, EPA would make every reasonable effort to assess the utility of 

existing publicly available data and programs to identify CAFOs by working with partners at the 

federal, state, and local level before determining whether requiring CAFOs to provide the 

information is necessary. Both of these options propose revisions to the NPDES regulations, 

which would allow EPA to obtain necessary information from CAFOs, including their contact 

information, location of the CAFO’s production area, NPDES permitting status, number, and 

type of animals, and number of acres available for land application. Section F. Alternative 

Approaches to Achieve Rule Objectives discusses alternative approaches to a regulatory
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information request for CAFOs that may achieve similar outcomes (i.e., ensuring that CAFOs are

complying with their obligations under the CWA). 

B. CWA section 308 data collection and EPA’s approach toward collecting facility-specific 

information from CAFOs through rulemaking

The proposed rulemaking utilizes EPA’s authority under section 308 of the CWA, which 

authorizes EPA to collect information from point sources when necessary to carry out the 

objectives of the CWA. Since the 1970s, EPA routinely has used its authority under section 308 

of the Act to collect information from large groups of point sources when developing and 

reviewing ELGs. An ELG survey typically will request industrial sources to provide information 

such as the type and amount of pollutants discharged, technologies available to treat waste 

streams, the performance capability of these technologies, and financial data. EPA uses this 

information to determine the appropriate control requirements and to assess the economic 

feasibility of such additional controls. As an example, when reviewing the ELGs applicable to 

the steam electric industry, EPA determined that the data available at that time did not include all 

wastewater streams generated by the steam electric industry. To address this deficiency, EPA 

issued detailed questionnaires to the industry, which required the industry to respond to questions 

including contact information, facility address, pollutants in wastewater discharges, volume of 

discharges, and types and performance of technologies employed to treat the wastewater along 

with financial information. When developing ELGs for coal bed methane extractions, EPA 

conducted an industry survey to evaluate the volume of water produced from extraction; the 

management, storage, treatment and disposal options; and the environmental impacts of surface 

discharges. Information collection under the CWA, thus, has been a frequently used tool to 

develop appropriate and environmentally protective standards. 
Page 30 of 102

There is precedent for EPA using its section 308 authority to collect information from 

entities not currently required to obtain NPDES permits. Recently, EPA conducted surveys to 

gather information to help assess the impact of potential changes that the Agency is considering 

to its existing stormwater requirements. As part of this effort, EPA sent questionnaires to 

regulated Municipal Separate Storm Sewer System (MS4s), non-regulated MS4s, transportation 

MS4s, NPDES permitting authorities, and owners and operators of developed sites.

EPA can use a variety of methods to obtain data required by information collection 

requests under section 308. The most common method is to mail questionnaires directly to 

industry contacts. However, because EPA does not know the names and addresses of all 

CAFOs, mailing surveys to CAFOs is not possible; therefore, a rule is necessary to collect the 

information. The final Federal Register notice would contain the information collection request 

form (see the proposed form at the end of this preamble). Under Option 1, CAFOs would be 

required to respond to the request as issued in the Federal Register unless a state chooses to 

provide the information on behalf of a CAFO. Under Option 2, CAFOs in a focus watershed 

would be required to respond, but EPA would make every reasonable effort to assess the utility

of existing publicly available data and programs to identify CAFOs by working with partners at 

the federal, state, and local level before determining whether requiring CAFOs to respond to a 

survey request is necessary. This request would be accomplished through a locally-applicable 

notice in the Federal Register along with other forms of local outreach. In the Federal Register, 

EPA also would include the description of the focus watershed and the reasons for its selection. 

To implement the rule effectively, EPA intends to conduct extensive outreach to the CAFO 

industry to ensure that all CAFOs know of the existence of this rule and any requirement to 

respond. The owners or operators of AFOs that have not been designated and that do not confine 
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the required number of animals to meet the definition of a Large or Medium CAFO are not 

required to submit information under this proposed rulemaking. 

The rulemaking process is an appropriate way to collect information from CAFOs 

because rulemaking is a transparent, equitable, and efficient method of collecting information 

from a large universe of entities. Moreover, allowing the states to submit the information 

required by this proposed action on behalf of a CAFO, included in the proposed option that 

would require all CAFOs to submit information, would allow states to collaborate with EPA in 

reducing the burden on some CAFOs to report the information to EPA. The proposed rule is a 

reasonable exercise of CWA section 308 authority because the information to be submitted 

would enable EPA to carry out and ensure compliance with the NPDES permitting program and 

other CWA requirements for CAFOs. See, e.g. Natural Resources Def. Council, Inc. v. EPA, 

822 F.2d 104, 119 (D.C. Cir. 1987); In re Simpson Paper Co. and Louisiana-Pacific Corp., 3 

E.A.D. 541, 549 (1991). 

EPA requests comment on obtaining the information through options in this co-proposed

rulemaking or whether EPA should explore alternative approaches as described in the Alternative 

Approaches to Achieve Rule Objectives section of this preamble. 

C. Option 1 Would Apply to All CAFOs

1. What information would EPA require as part of an information gathering survey for 

CAFOs and why is EPA proposing to require this information?

Proposed paragraph § 122.23(k) (2) specifies the information EPA would require 

respondents to provide to the Agency. Under this proposed option, EPA would require 

respondents to submit the following information: 
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(i) The legal name of the owner of the CAFO or an authorized representative, their

mailing address, email address (if available) and primary telephone number. An 

authorized representative must be an individual who is involved with the management or 

representation of the CAFO. The authorized representative must be located within 

reasonable proximity to the CAFO, and must be authorized and sufficiently informed to 

respond to inquiries from EPA on behalf of the CAFO;

(ii) The location of the CAFO’s production area identified by the latitude and longitude 

or by the street address. 

(iii) If the owner or operator has NPDES permit coverage as of [the effective date of 

promulgation of this rule], the date of issuance of coverage under the NPDES permit, and 

the permit number. If the owner or operator has submitted an NPDES permit application 

or a Notice of Intent as of [the effective date of promulgation] but has not received 

coverage, the date the owner or operator submitted the permit application or Notice of 

Intent;

(iv) For the previous 12-month period, identification of each animal type confined either 

in open confinement including partially covered area, or housed totally under roof at the 

CAFO for 45 days or more, and the maximum number of each animal type confined at 

the CAFO for 45 days or more; and

(v) Where the owner or operator land applies manure, litter, and process wastewater, the 

total number of acres under the control of the owner or operator available for land 

application. 

Proposed paragraph § 122.23(k) (2) (i) would require CAFOs to provide a point of 

contact for the CAFO. EPA proposes to allow CAFOs to provide contact information for either 
Page 33 of 102

the owner of the CAFO or an authorized representative. An authorized representative must be 

an individual who is involved with the management or representation of the CAFO. The 

authorized representative must be located within reasonable proximity to the CAFO, and must be 

authorized and sufficiently informed to respond to inquiries from EPA on behalf of the CAFO. 

For example, an employee who manages the CAFO or an attorney employed by the CAFO could 

be an appropriate authorized representative. Respondents would be required to provide complete 

contact information, including name, telephone number, email (if available), and mailing 

address. Owners or authorized representatives may provide a P.O. Box in lieu of a street address

in the contact information section. All individuals who qualify under 40 CFR. 122.22 can serve 

as a CAFO’s authorized representative, including the operator of a CAFO. EPA proposes to 

allow qualifying individuals to serve as a CAFO’s point of contact to preserve the privacy of a 

CAFO owner if desired. With this information, EPA would be able to communicate directly 

with CAFOs when necessary. EPA seeks comment on whether an authorized representative 

should be permitted to sign the survey form instead of the CAFO owner or operator.

In addition to providing contact information, proposed paragraph § 122.23(k) (2) (ii)

would require CAFOs to provide the location of the CAFO’s production area in either latitude 

and longitude or by the street address of the CAFO’s production area. (Note that a P.O. Box 

would not substitute for a street address in the location information section, since it would not 

identify a CAFO’s location). EPA believes that knowing the location of the CAFO’s production 

area, as specified in proposed paragraph § 122.23(k)(2)(ii), is essential for determining sources 
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of water quality impairments and potential mitigation measures. A CAFO’s proximity to 

waterbodies also is relevant to whether it may cause water quality impacts. Comprehensive 

compliance assistance and education and outreach efforts, which are facilitated by knowing 

facility location and contact information, are tools a regulatory program can use in partnerships 

with industry to proactively protect and maintain water quality. 

Information related to a CAFO’s permit status (proposed paragraph § 122.23(k)(2)(iii)) 

would indicate whether additional information is publicly available, thus avoiding duplicative 

efforts to seek information from NPDES permitted CAFOs. Permitting status information also 

would show which CAFOs are operating without NPDES permit coverage. Even where a 

facility is not discharging and therefore is not required to be covered by a permit, knowing about 

the existence of these facilities gives EPA a basis for understanding how many facilities within 

each sector are actually able to completely prevent discharges. This information might be 

transferable to other facilities in that sector that currently discharge. EPA or states would be able 

to provide technical assistance, extend compliance assistance, or inspect such CAFOs where 

appropriate. 

EPA proposes (as specified in proposed paragraph § 122.23(k)(2)(iv)) to collect data on 

the number and type (cattle, poultry, swine, etc.) of animals because the scale of the operation 

and the types of animals confined relate to the type and volume of manure generated and related 

environmental considerations, and also determine applicable CWA permitting requirements. 

Specifically, the number and type of animals provides an indication of the quantity and 

characteristics of the CAFOs’ manure (i.e., wet or dry and possible constituents), which then 

informs EPA as to the possible environmental effects of that manure. EPA also proposes to 

collect information about the amount of land available for application (proposed paragraph §
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122.23(k)(2)(v)). A CAFO’s available land application area is likely to affect the amount of 

manure that can be land applied for agronomic purposes and the potential amount of nutrients

that could flow into surrounding waters of the United States. Combining information about 

manure quantity and characteristics with land available for application would indicate where 

issues might exist regarding excess manure. 

Section 308(b)(1) of the CWA requires that information collected by the Agency shall be 

available to the public, except upon a satisfactory showing to the Administrator that any part of 

the information, report, or record is confidential business information. Under existing 

regulations, an owner or operator may assert a claim of confidential business information (CBI) 

with respect to specific information submitted to EPA. 40 CFR part 2, subpart B. Under section 

2.208, business information is entitled to confidential treatment if, “the business has 

satisfactorily shown that disclosure of the information is likely to cause substantial harm to the 

business's competitive position.” A claim of confidentiality must be made at the time of 

submission and in accordance with the requirements of 40 CFR 2.203(b). Id. at § 2.203(c). EPA 

would follow all the requirements related to information submitted with a claim of 

confidentiality including the required notification to the submitter and rights of appeal available 

before releasing any information claimed to be confidential. EPA seeks comment on whether 

any information required by this proposed rule could reasonably be claimed as CBI and the 

reasons for making this claim.

EPA requests comment on the information that CAFOs would be required to submit as 

specified by proposed paragraph § 122.23(k)(2). Specifically, EPA is aware that providing 

latitude and longitude information might raise security or privacy concerns for CAFO 

owner/operators, many of whom are family farmers. EPA seeks comment on alternatives to 
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submission of the latitude and longitude that would provide general information on a facility’s

location but not specific coordinates. For example, the survey could request the name of the 

nearest waterbody to the CAFO. Local knowledge, U.S. Geological Survey topographical maps

or internet programs such as Google Maps could be used by the CAFO to make this 

determination of the nearest waterbody to the CAFO. This would allow EPA to identify the 

watershed in which a CAFO is located, and to potentially model discharges from the CAFO and 

their impacts on water quality, but without providing specific information that could be misused 

to target the CAFO for inappropriate or illegal purposes. EPA also seeks comment on using 

other systems such as the Public Land Survey System (PLSS) (i.e. township, range and county 

information) to identify the location of a CAFO’s production area. The PLSS encompasses 

major portions of the land area of 30 southern and western United States. EPA seeks comment 

on other possible alternatives as well, such as requesting a business address and county where 

located, or some other general locational information. Commenters suggesting such alternative 

should discuss the advantages and limitations of such information both for protecting the security

and privacy of CAFOs, and for fulfilling the CWA purposes for which EPA needs the data 

(discussed above). EPA also seeks comment on how this type of location information would 

compare with respect to operator burden, accuracy of location identification, and usefulness of 

the information to identify the production area location. EPA also seeks comment on whether 

CAFOs would know the operation’s latitude and longitude.

Related to the concern discussed above is a concern that providing specific information 

on the type and number of animals at a CAFO might also raise potential security issues. EPA 

requests comment on allowing CAFOs to report numbers of animals confined in ranges, rather 
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than providing specific numbers. One option would be to use ranges corresponding to the 

definitions of large, medium and small CAFOs. EPA also requests comment on collecting the 

information as specific numbers, but making it available to the public only as ranges.

Additionally, EPA requests comment on the most appropriate 12-month span of time for 

a CAFO to determine the number of animals at the CAFO (i.e. fiscal year or calendar year, or the 

previous 12 months prior to completing the survey). 

EPA seeks comment on whether CAFOs would understand the questions asked and on 

the technical appropriateness of the questions. The proposed survey form that EPA would use to 

collect the information is included as an appendix to this preamble. 

The settlement agreement with the environmental petitioners specifies that EPA would 

release the information collected pursuant to this rule to the public, except where it is entitled to 

protection as confidential business information. This is required by section 308 of the CWA. 

However, neither the settlement agreement nor section 308 specify the venue or format in which 

the information is to be released. EPA is aware of both security and privacy concerns, 

referenced above, regarding the potential public release of the information to be collected by this 

rule. EPA requests comment on any such concerns, on appropriate ways to address those 

concerns (consistent with section 308), and on appropriate formats or venues to make it available 

to the public. EPA also requests comment on whether the requirement to make any information 

collected pursuant to section 308 available to the public (except confidential business 

information) should factor into its determination about what information, if any, to collect from 

CAFOs.

2. What information would EPA not require as part of the collection request survey for CAFOs?
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In the settlement agreement with the environmental petitioners, arising out of litigation 

over the 2008 CAFO rule, EPA agreed to propose a rule that would require CAFOs to submit 

information on 14 items of information; or, if EPA decided not to include one of the items from 

the settlement agreement in the proposed rule, EPA would identify the item(s), explain why EPA 

chose not to propose requiring that information and request comment on the excluded items. 

 This proposed rulemaking requests information on only some of those 14 items because 

the Agency believes it can effectively obtain site-specific answers for the remaining questions 

directly from states, other federal agencies, specific CAFOs, or other sources, when necessary. 

EPA also is striving to balance the need for information with the burden associated with 

providing the information to EPA. 

 EPA seeks comment on its proposal not to collect the following items specified in the 

settlement agreement: 

 Name and address of owner/operator (if the name and address of an authorized 

representative is provided instead of the name and address of an owner or operator of the 

CAFO);

 The survey would allow the CAFO’s a choice in providing location data of the 

production area either by the longitude and latitude or the street address of the production 

area, instead of requiring both;

 If contract operation, name and address of the integrator;

 Type and capacity of manure storage;

 Quantity of manure, process wastewater, and litter generated annually by the CAFO;

 If the CAFO land-applies, whether it implements a nutrient management plan for land 

application;
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 If the CAFO land-applies, whether it employs nutrient management practices and keeps 

records on site consistent with 40 CFR 122.23(e);

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

and

 Whether the CAFO transfers manure off site, and if so, quantity transferred to recipient(s) 

of transferred manure.

3. Who would be required to submit the information?

Under this option, proposed paragraph § 122.23(k)(1) would require all owners or 

operators of CAFOs to submit the information specified in proposed paragraph 40 CFR 

122.23(k)(2). However, an exception is provided by proposed paragraph § 122.23(k)(5), that

would allow states with an authorized NPDES program to provide the information proposed to 

be collected to EPA for CAFOs in the state. The option for a state to submit the information 

specified by proposed paragraph § 122.23(k)(2) is voluntary. This proposed option would allow 

states to submit the information because states may have collected all of the information required 

to be submitted by this proposed rule. A state may have obtained this information through permit 

applications, annual reports, inspection documentation, or other means and may keep records of 

this information in a form that is readily transferable to EPA. EPA does not have a preference 

regarding whether individual CAFOs submit the information or whether states submit it for 

them. EPA expects that states that do not possess the CAFO information requested would not 

choose to participate. In other words, EPA does not anticipate that states would submit the data, 

if it would require them to undertake additional efforts to collect this information from CAFOs. 

Proposed paragraph § 122.23(k)(2) provides flexibility to states by allowing each state to 

determine if it can easily submit the information to EPA given the state’s resources. 
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Under proposed paragraph § 122.23(k)(5), in order to submit the information on behalf of 

its CAFOs, a state would only be allowed to provide information on behalf of a CAFO if it

submits all items of information as specified by proposed paragraph § 122.23(k)(2). States that 

choose to submit this information would be required to use the Agency’s information 

management system to ensure reporting consistency among states choosing to provide the 

information to EPA. CAFOs for which a state submits all of the required information would be 

referred to as “listed” CAFOs. States may submit information for CAFOs with NPDES permit 

coverage or CAFOs without NPDES permit coverage, such as CAFOs with state permits only. 

In the case of states for which EPA is the NPDES permit authority and where the NDPES 

CAFO general or individual permits have been updated in accordance with the 2008 CAFO rule, 

EPA would provide the information as if it were the state. EPA issues updated NPDES CAFO 

permits in the states of Idaho, New Mexico, Oklahoma, New Hampshire, and Massachusetts.

The voluntary state submission option does not preclude any CAFO that wishes to do so 

from submitting the information required by the proposed rule even where a state previously 

submitted the information for that CAFO. The next section of this preamble, When would states 

that choose to submit the information be allowed to provide the information to EPA and when 

would CAFOs be required to submit the information to EPA?, identifies the time frames for 

submitting the information to EPA that would be required by proposed paragraph § 122.23(k)(2). 

Under this proposed option, EPA seeks comment on whether to allow the state 

submission option as proposed by paragraph § 122.23(k)(5), or whether all CAFOs should be 

individually required to submit information to EPA. Specifically, EPA solicits comment from 

CAFO owners or operators as to their willingness to have the state permitting agency submit 

operation information to EPA on their behalf. EPA also solicits comment from states on the 
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availability of the information as specified by proposed paragraph § 122.23(k)(2); whether states 

plan to provide all the required information on behalf of CAFOs; and alternatively, if given the 

opportunity, whether states would provide partial information on behalf of CAFOs. EPA also 

solicits comments on whether NPDES authorized states should be required to provide the 

information for their permitted CAFOs. 

4. When would states that choose to submit the information be allowed to provide the 

information to EPA and when would CAFOs be required to submit the information to EPA? 

Following the release of the Agency’s information management system and the 

availability of the proposed survey form, the proposed rule would allow an owner or operator of 

a CAFO or states to submit the information to EPA any time during their respective reporting 

periods. EPA proposes the following submission deadlines:

 Required Reporting Period for States Who Chose to Report: As specified by proposed 

paragraph § 122.23(k)(5)(iii), states that choose to submit information would be required 

to submit the information in proposed paragraph § 122.23(k)(2) [within 90 days from the 

effective date of the rule]. 

 Notification Period: [Within 60 days after the end of the state reporting period], EPA 

plans to make publicly available a list of all CAFOs by name, permit number, if 

applicable, and state (“listed CAFOs”).

 CAFO Reporting Period: CAFOs that do not appear on the CAFO list would be required 

to submit the information on an individual facility basis to EPA within [90 days after the 

end of the notification period]. CAFOs that appear on the CAFO list may choose to 

review the information submitted by the state and override the state’s submission by
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submitting its own information, but CAFOs must do so within [90 days after the end of 

the notification period].

Table 2 summarizes the timeframes for submitting the information as specified in proposed 

paragraph § 122.23(k)(2) to EPA. 

Table 2. PROPOSED TIMELINES FOR SUBMITTING THE INFORMATION 

REQUIRED AS SPECIFIED BY PROPOSED PARAGRAPH § 122.23(k)(2). 

Entity Timeframe

States that choose to report

EPA

Must submit information within 90 days 

of the effective date of the rule

Makes publicly available within 60 days 

of the end of the state reporting period a 

list of CAFOs for which the states have 

submitted data

CAFOs not appearing on the 

CAFO list

CAFOs on the CAFO list that 

prefer to provide information 

themselves

Must submit information within 90 days 

of the end of the notification period

May submit information within 90 days 

of the end of the notification period

EPA requests comment on allowing 180 days rather than 90 days for states to submit 

information to EPA on behalf of CAFOs. This would allow additional time for unpermitted 

CAFOs wishing to be covered by NPDES permits to apply for permit coverage (e.g., submit an 

NOI in the case of a general permit) such that states could submit the information for them.

To maintain an updated inventory, EPA proposes that CAFOs without NPDES permits

submit the information specified by proposed paragraph § 122.23(k)(2) or update previously 

submitted information every ten years. EPA proposes a ten-year resubmission period for 

unpermitted CAFOs because the Agency does not expect the information to change significantly

within this ten-year period. Specifically, proposed paragraph § 122.23(k)(4)(iii) would require 

CAFOs without NPDES permit coverage to submit or update the required information between 
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[January 1 and June 1, 2022] and every tenth year thereafter between those dates. Operations 

that have NPDES permit coverage or obtain permits before the 2022 resubmission date, or that 

become CAFOs after [July 2012] – either newly defined, designated, or a new source – and 

obtain NPDES permit coverage would not be required to submit or update the required

information. For example, a CAFO that does not have an NPDES permit as of [July 2012] but 

obtains NPDES permit coverage before January 1, 2022, would not be required to re-submit the 

information that today’s rulemaking proposes to collect. 

Under this proposed option, CAFOs with NPDES permits would not need to update their 

information every ten years because EPA believes it would be able to maintain an updated 

inventory for permitted CAFOs from their annual reports and permit applications when renewing 

permit coverage. EPA invites comments on the schedule for when states and CAFOs be would 

required to submit the information to EPA. EPA also seeks comment on the requirement for 

CAFOs without NPDES permit coverage to resubmit the information as specified in proposed 

paragraph § 122.23(k)(2) every ten years. 

5. How would CAFOs submit the information to EPA?

Proposed paragraph § 122.23(k)(3) would require owners and operators of CAFOs to use 

an official survey form provided by EPA to submit, either electronically or by certified mail, the 

required information to EPA. EPA would not mail surveys to individual CAFOs to request 

information, as the locations of many CAFO operations are unknown. Rather, the survey form 

would be available on EPA’s website or by requesting a hard copy from EPA Headquarters from 

the EPA contact information provided in the final rule. EPA would conduct extensive outreach 

with the regulated community, industry groups, environmental groups and states in its effort to 
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notify all stakeholders about the requirements of the rule and how to submit the required 

information. 

Proposed paragraph § 122.23(k)(3) would require the owner or operator of a CAFO to 

submit the survey form electronically using the Agency’s information management system 

available on EPA’s website. The Agency’s Web-based information management system would 

be the most effective, inexpensive way to submit the information. The Web-based information 

management system would leverage components of the Central Data Exchange (CDX) on the 

Environmental Information Exchange Network. CDX provides a single and centralized point of 

access for states and CAFO owners or operators to submit information electronically to EPA. 

CDX is supported by the Cross-Media Electronic Reporting Regulation (CROMERR), which 

provides the legal framework for electronic reporting under EPA’s regulations. CROMERR 

requires any entity that submits electronic documents directly to EPA to use CDX or an 

alternative system designated by the Administrator. CDX would ensure the legal dependability

of electronically submitted documents and provide a secure environment for data exchange that 

would also protect personally identifiable information (PII).

The supporting CAFO information management system would leverage Agency

standards and enterprise technologies to perform logic checks on the data entered to ensure 

quality assurance and quality control. Logic checks would reduce the reporting errors and limit 

the time involved in investigating, checking and correcting submission errors at all levels. While 

not required, the CAFO owner or operator would be able to print a copy of the information 

submitted through the Agency’s information management system to maintain on site or at a 

nearby location. 
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EPA proposes an option to waive the electronic submission requirement if the 

information management system is otherwise unavailable or the use of the Agency’s information 

management system would cause undue burden or expense over the use of a paper survey form. 

A CAFO owner or operator would be allowed to request a waiver from this electronic reporting 

requirement at the time of submission and would not need to obtain approval from EPA before

submitting a hard copy of the form. If submitting a hard copy of the survey form, the CAFO

owner or operator would be required to check the electronic submission waiver box and explain 

why electronic submission causes an undue burden on page 1 of the proposed survey form. EPA 

requests comment on whether it should allow CAFOs to submit a hard copy of the form without 

requesting a waiver.

CAFOs completing a hard copy of the survey form would submit the information in 

proposed paragraph § 122.23(k)(2) to EPA via certified mail. The official paper survey form is

attached as an appendix to this preamble. There are two ways that a CAFO owner or operator 

who cannot submit the information electronically would be able to access the official paper 

survey form and instruction sheet, which are included as Attachment A of this preamble. First, 

the owner or operator would be able to request a form and instructions from EPA. A form may

be requested from EPA Headquarters from the EPA contact information provided in the final 

rule. Alternatively, the owner or operator would be able to download the form and instructions, 

which would be available at http://www.epa.gov/npdes/afo/. After receiving the official form, 

the CAFO owner or operator would complete and return the survey form to EPA using certified 

mail postmarked by the appropriate deadline specified by proposed paragraph § 122.23(k)(4). 

 EPA plans to coordinate with states, tribal governments, and interested stakeholders to 

notify CAFOs about the proposed official survey form and the availability of the Agency’s 
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information management system. EPA seeks comment on the data submission approach in 

proposed paragraph § 122.23(k)(3). EPA also seeks comment on the most effective ways to 

notify CAFOs, when the rule is finalized, that they must submit the information required as 

specified by proposed paragraph § 122.23(k)(2). 

6. How would states submit the information to EPA?

Only states with an authorized NPDES program would have the option to submit the 

information on behalf of CAFOs within their states. EPA requests comment on this limitation. 

In states where EPA is the permitting authority for CAFOs, EPA would submit the information. 

To participate in the voluntary submission option provided by proposed paragraph §

122.23(k)(5), states would electronically submit the information required by proposed paragraph 

§ 122.23(k)(2) using the Agency’s information management system. The electronic submission 

process for states is similar to the electronic submission process for CAFOs. The electronic 

submission process would entail submitting information via the information management system 

through CDX. Proposed paragraph § 122.23(k)(5)(ii) would limit states to providing only 

current data, including data obtain from the state’s most recent application process or from a 

CAFO’s most recent annual report. Because states choose whether to submit information on 

behalf of CAFOs, EPA anticipates that a state would submit the information only when 

electronic submission is not overly burdensome. 

To clearly identify which CAFOs would not need to submit the information to EPA 

during the CAFO reporting period, EPA proposes to make available on the Agency’s website 

(www.epa.gov/npdes/) a final list of CAFOs for which the states have submitted information on

behalf of a CAFO. The CAFOs would be listed by name, location and permit number for 

NPDES permitted CAFOs, and by name and location for unpermitted CAFOs. EPA would also 
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make available the information provided by the states for each CAFO [within 60 days after the 

end of the 90-day state submission timeframe]. As explained in the section, When would states 

that choose to submit the information be allowed to provide the information to EPA and when 

would CAFOs be required to submit the information to EPA?, of this preamble, CAFOs that do 

not appear on the CAFO list would be required to submit the information [within 90 days of the 

list and responses being published]. CAFOs on the CAFO list would not be required to submit 

the information; however, they would be able review and change any information provided by a

state. 

States would be required to provide the electronic data files in an Extensible Markup 

Language (XML) format that is prescribed by EPA and compatible with Agency standards in 

support of regulatory data and information flows by the deadline specified in proposed paragraph

§ 122.23(k)(5)(iii). If states already store CAFO information within their respective databases, 

states would need to map their CAFO database elements to the prescribed XML CAFO schema 

for data exchange. States that do not store CAFO information electronically or maintain records 

in hardcopy would need to manually populate the CAFO survey using the Web-based 

submission form, thus using the same submission process as an individual CAFO owner or 

operator. 

In contrast to implementing and enforcing the existing CAFO regulations in 40 CFR part 

122, which is a required program element for authorized states, EPA emphasizes that the state 

submission option would be voluntary. This proposed option would not require that states divert 

resources from regulatory implementation and enforcement efforts to submit the information 

required by proposed paragraph § 122.23(k)(2) to EPA. EPA anticipates that states that choose 

to report on behalf of their state’s CAFOs would already possess this information and therefore, 
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would not need to undertake additional efforts to collect this information from CAFOs. EPA 

assumes the states that choose to provide the information to EPA would be the states for which

this task would not be overly burdensome. This proposed option does not express a preference 

as to whether states or CAFOs submit the information. EPA plans to coordinate with states to 

help them prepare to submit the information if the state chooses to provide the information to 

EPA. EPA seeks comment on the proposed data collection approach regarding the way in 

which states would submit the information to EPA on behalf of CAFOs, and on whether NPDES 

authorized states should be required to submit the information on behalf of permitted CAFOs. 
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D. Option 2 Would Apply to CAFOs in a Focus Watershed

EPA also proposes an option that would first identify focus watersheds with water quality 

problems likely attributable to CAFOs, and then potentially identify CAFOs in a focus watershed

to respond to a survey request. EPA would make every reasonable effort to assess the utility of 

existing publicly available data and programs to identify CAFOs by working with partners at the 

federal, state, and local level before determining whether an information collection request is 

necessary. This proposed rulemaking option would allow EPA to list the criteria used to define 

the focus watersheds, specify the methods to determine the geographic scope of the focus 

watersheds, survey groups of CAFOs in the selected focus watersheds if the necessary

information was not available from other sources, and define the amount of time required for 

outreach so that CAFOs in these focus watersheds know if and when they are required to respond 

to a survey request.

Under this proposed option, EPA would focus on collecting information regarding

CAFOs in focus watersheds where there are water quality concerns likely associated with 

CAFOs. EPA would use existing data sources to determine which geographic areas would be 

identified as a focus watershed for collecting information about CAFOs and to attempt to obtain 

the necessary data before using its 308 authority to collect it directly from CAFOs. 

EPA could use existing data sources to identify areas of water quality concern that

correspond with locations of CAFOs. For example, modeling estimates could be used to identify

watersheds at an appropriate Hydrologic Unit Codes (HUCs) level with high nitrogen and 

phosphorus loadings likely originating from agricultural sources. Publicly available data could 

also be used to identify watersheds with high concentrations of CAFOs. Data from these sources 

could be further complemented by numerous other existing data from EPA, states, universities, 
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research centers and other sources. EPA would collaborate with states, other federal agencies, 

and interested stakeholders to identify other available sources of data pertaining to CAFOs and 

water quality, including but not limited to watershed characteristics, sources of water quality 

impairments, pollutant loadings from agriculture, CAFO locations, characteristics of CAFO 

operations, and CAFO manure management practices when selecting focus watersheds. EPA 

would make its methodology for identifying focus watersheds and the results of its assessments 

available to the public. 

EPA, other federal, state, and local agencies, and interested stakeholders could also use 

the collected information to target their outreach to CAFO owners and operators, target technical 

and financial assistance that helps CAFOs apply the most effective manure management 

practices, and implement monitoring and assessments of the effects of these practices. 

Leveraging stakeholder resources and more precisely focusing on areas of concern could yield 

strong results in a shorter period.

 Identifying focus watersheds could produce additional benefits in addressing water 

quality impairments. In focus watersheds, federal and state agencies could partner with industry

groups and non-governmental organizations to increase outreach and education to CAFO owners 

and operators. Additionally, this option could assist EPA and other federal and state agencies in 

working with agricultural producers in the focus watershed to develop and implement a 

coordinated program of manure management practices needed to attain water quality goals,

including state water quality standards. EPA could also evaluate results from existing or future 

water quality monitoring and modeling and provide these results to the public periodically. Such

education and outreach efforts could promote the implementation of best management practices. 

Interested stakeholders could use information collected by this proposed option to target delivery
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of its technical and financial assistance including conservation systems tailored to the water 

quality needs and resource profile of each livestock producer. 

With this proposed rulemaking option, EPA would collect the information specified in 

proposed paragraph § 122.23(k)(3) only from CAFOs located in identified focus watersheds. 

EPA would make every reasonable effort to assess the utility of existing publicly available data 

and programs to identify CAFOs by working with partners at the federal, state, and local level 

before determining whether an information collection request is necessary. EPA seeks comment 

on this proposed option that would require CAFOs in focus watersheds to report the information 

specified in proposed paragraph § 122.23(k)(4) if it were not otherwise available. 

1. How would EPA identify a focus watershed?

EPA would identify focus watersheds based on water quality concerns associated with 

CAFOs, including but not limited to nutrients (nitrogen and phosphorus), pathogens (bacteria, 

viruses, protozoa), total suspended solids (turbidity), and organic enrichment (low dissolved 

oxygen). EPA also recognizes that there is a variety of sources, including sewage treatment 

plants, and industrial discharges that are sources of nutrients and sediment related to water 

quality impairments. However, for purposes of this survey, this proposed option would require 

that a focus watershed be one associated with water quality concerns likely to be associated with 

CAFOs or land application of manure. 

Under section 303(d) of the CWA, states are required to assess their waters and list as 

impaired those that do not meet water quality standards. The 303(d) impairment listings would 

be one source to consult in identifying a focus watershed based on water quality concerns. 

EPA’s ATTAINS database, which includes listings of impaired waters reported to EPA by states, 

pursuant to CWA section 303(d), is available to help identify impacted watersheds. 
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However, relying on impaired waterbody information is limited because many waterbodies 

have not been assessed or the impairment cause has not been identified. Additionally, in these 

impaired waterbodies some states have not established water quality standards for all of the

pollutants in these impaired waterbodies that might be associated with CAFO discharges. In 

particular, many states have not set standards for nutrients, which are a key indicator for animal 

agriculture’s impact on water quality. To address this limitation, EPA also could use other data 

indicating water quality concerns relating to CAFOs, such as nutrient monitoring data from state 

or federal agencies. EPA solicits comment on what sources of data could be used to determine 

where waterbodies are likely to be impacted due to CAFOs. 

EPA also could rely on existing partnerships to identify waterbodies with impacts 

associated with CAFOs. For example, a March, 2011 memorandum reaffirmed EPA’s 

commitment to partnering with states and collaborating with stakeholders to make greater 

progress in accelerating the reduction of nitrogen and phosphorus loadings to the nation’s 

waters. In addition, some states are working on strategies for reducing nitrogen and 

phosphorus pollution. U.S. EPA Memorandum, Working Effectively in Partnership with 

States to Address Phosphorus and Nitrogen Pollution Through Use of a Framework for State 

Nutrient Reductions (2011), available at

http://water.epa.gov/scitech/swguidance/standards/criteria/nutrients/upload/memo_nitrogen_fr

amework.pdf. The information collected by today’s proposed rulemaking could assist states 

as they identify areas with water quality concerns by providing data for their strategy

development and implementation. EPA requests comments on sources of information that 

could be used to identify watersheds with a likelihood of water quality impacts associated 

with CAFOs. 
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In addition to being areas where water quality issues of concern are likely to exist due to 

CAFOs, a focus watershed would be identified based on one or more of the additional 

following proposed criteria: 

a. High priority watershed due to other factors such as vulnerable ecosystems, drinking water 

source supply, watersheds with high recreational value, or outstanding natural resources 

waters (Tier 3 waters);

b. Vulnerable soil types;

c. High density of animal agriculture; and/or

d. Other relevant information (such as an area with minority, indigenous, or low-income

populations).

EPA solicits comment on whether minimum standards for selection of a focus watershed should 

be adopted and what such standards might be. EPA also solicits comment on whether the results 

of a focus watershed assessment, including decisions to focus or not to focus on an area, should 

be made available to the public. EPA also solicits comment on how frequently EPA should 

review and/or revise its identification of focus watersheds. 

2. Considerations when determining whether a focus watershed meets the criteria for water 

quality protection 

a. High priority watershed due to other factors (such as vulnerable ecosystems, drinking 

water supply source, watersheds with high recreational value or outstanding national 

resource waters (Tier 3 waters))

EPA could identify focus watersheds where waters require a greater degree of protection 

than other waters of the United States. These include waters with excellent water quality, 

including high quality waters, where water quality conditions must be maintained and protected 
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in accordance with 40 CFR 131.12(a)(2) and outstanding national resource waters, where the 

waters have exceptional recreational, environmental or economic significance and must be 

protected in accordance with 40 CFR 131.12(a)(3). Areas near drinking water sources may also 

be areas identified for survey requests. EPA and its partners would work with CAFOs located 

within these watersheds in order to promote improved nutrient management practices and to 

ensure that the applicable CWA requirements are met. EPA would review state and tribal water 

quality standard data to locate these watersheds. EPA seeks comment on high priority watershed 

due to other factors as a criterion to identify a focus watershed. 

b. Vulnerable soil types

Vulnerable soil types include soils with high nutrient levels. High nutrient soils in a 

watershed indicate that there may be more nutrients being land applied than being utilized by the 

crops. For example, there is an increased risk of phosphorus runoff in areas where phosphorus 

soil test levels are high, particularly in areas that are close to surface waters or have steep slopes. 

To evaluate and determine which watersheds have soils with high nutrient levels, EPA could 

review reports on nutrient levels such as the Mid-Atlantic Watershed Program’s report of 

phosphorus; reports prepared for Congress, such as Animal Waste Management and the 

Environment: Background for Current Issues and Animal Waste Pollution in America: An 

Emerging National Problem. US CONGRESSIONAL RESEARCH SERVICE, CRS-98-451 (1998)

available as of September 2011 at http://www.cnie.org/nle/CRSreports/Agriculture/ag-48.cfm;

Tom Harkin, Animal Waste Pollution in America: An Emerging National Problem, Report 

Compiled by the Minority Staff of the United States Senate Committee on Agriculture, Nutrition, 

& Forestry for Senator Tom Harkin (Dec. 1997). Data compiled by state conservation districts 

and data from land grant universities that evaluate the nutrient levels of soils also could be 
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sources of information to support identifying a focus watershed because of high nutrient levels in 

the soil. In addition to soil nutrient level, estimating areas where manure production is more than 

the surrounding crop lands can utilize may also be an indicator to focus information collection 

requests. For example, where the amount of manure generated greatly exceeds the capacity of 

available land for agronomic application of manure, it is more likely that CAFOs will apply 

manure in excess of crop nutrient requirements or experience issues associated with inadequate 

storage capacity. EPA seeks comment on vulnerable soil types as a criterion to identify a focus 

watershed. 

c. High density of animal agriculture

EPA could target outreach and information collection efforts to those geographic regions 

where Ag Census data, which is publicly available aggregate data, shows a high density of 

animals or reports a high number of operations that meet the CAFO animal size thresholds as 

specified by paragraph 40 CFR 122.23(b). EPA could review the aggregate data from the Ag 

Census to determine counties, geographic regions or sub-regions that have a high density of 

CAFOs. This type of census data is accessible to both EPA and the public through USDA’s 

existing on-line report generating function and other sources. EPA seeks comment on using high 

densities of CAFOs as 

a criterion to identify a focus watershed. 

d. Other relevant information

EPA anticipates cases in which a need to collect information from CAFOs could arise because of 

factors other than the three criteria described above. For example, CAFOs often are located in 

minority, low-income, and indigenous communities that are or may be disproportionately

impacted by environmental pollution. Supporting this statement is a report from The Lawyers’ 
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Committee for Civil Rights Under Law stated that “there are 19 times more CAFOs in North 

Carolina’s poorest communities than in wealthier communities and five times more in nonwhite 

neighborhoods than in white neighborhoods.” (Daria E Neal et al., Now is the Time: 

Environmental Injustice in the U.S. and Recommendations for Eliminating Disparities, page 56 

(2010) available as of July 2011 at

http://www.lawyerscommittee.org/admin/site/documents/files/Final-Environmental-JusticeReport-6-9-10.pdf). Working with CAFOs in those communities to address water quality 

problems would help fulfill the Agency’s environmental justice goals. EPA seeks comment on 

the factors listed above and seeks suggestions of other factors the Agency could use as a criteria

to identify a focus watershed. EPA would consider other factors suggested for inclusion in 

taking final action on this proposal. 

3. How would EPA identify CAFOs from which additional information is needed? 

After establishing an area with a water quality impairment or water quality concerns likely 

associated with CAFOs, or otherwise identified as a focus watershed based on the factors 

identified above, EPA would make every reasonable effort to assess the utility of existing 

publicly available data and programs to identify CAFOs by working with partners at the federal, 

state, and local level before determining whether an information collection request is necessary.

However, where EPA was unable to obtain the necessary basic information from such sources, 

EPA would require CAFOs in the focus watershed to provide the necessary information. EPA 

requests comment on alternative sources of information that could be used to gather the 

necessary information. 

4. What information would EPA require as part of an information gathering survey for

CAFOs in a focus watershed?
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Under this proposed option, EPA would seek to collect the same information as under the 

proposed option for using section 308 to collect information from all CAFOs, outlined in section 

III.(C)(2). Specifically, EPA might require CAFOs in a focus watershed to submit the following 

information as specified by proposed paragraph § 122.23 (k)(4), if the information were not 

available from other sources:

(i) The legal name of the owner of the CAFO or an authorized representative1, their

mailing address, email address (if available) and primary telephone number; 

(ii) The location of the CAFO’s production area identified by the latitude and longitude 

or by the street address;

(iii) If the owner or operator has NPDES permit coverage as of [the effective date of 

promulgation of this rule], the date of issuance of coverage under the NPDES permit, and 

the permit number. If the owner or operator has submitted an NPDES permit application 

or a Notice of Intent as of [the effective date of promulgation] but has not received 

coverage, the date the owner or operator submitted the permit application or Notice of 

Intent;

(iv) For the previous 12-month period, identification of each animal type confined either 

in open confinement including partially covered area, or housed totally under roof at the 

CAFO for 45 days or more, and the maximum number of each animal type confined at 

the CAFO for 45 days or more; and

 

1 An authorized representative must be an individual who in involved with the management or representation of the 

CAFO. The authorized representative must be located within reasonable proximity to the CAFO, and must be 

authorized and sufficiently informed to respond to inquiries from EPA or the state about the CAFO.
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(v) Where the owner or operator land applies manure, litter, and process wastewater, the 

total number of acres under the control of the owner or operator available for land 

application. 

Under this proposed option as well as the other proposed option, CAFOs in a targeted 

area would be able to assert a claim of confidential business information with respect to specific 

information submitted to EPA. 40 CFR part 2, subpart B. A claim of confidentiality must be 

made at the time of submission and in accordance with the requirements of 40 CFR 2.203(b). 

For further discussion of CBI, see section, What information would EPA require as part of an 

information gathering survey for CAFOs and why is EPA proposing to require this information?, 

of this preamble.

5. How would EPA geographically define a focus watershed?

If EPA did ultimately need to use section 308 to focus on CAFOs in a specific geographic 

area, that area must be defined in some way so that CAFOs would know if their operation is 

located within the area, and thus, would be required to respond to the survey request. EPA 

proposes to define the targeted areas geographically by either Zip Codes, counties, HUC codes, 

or watersheds. EPA solicits comment on the most effective way to define a focus watershed so 

that CAFOs would know of their need to respond to EPA.

6. How would EPA inform CAFOs of their responsibility if they were required to respond to

an information request?

Where certain areas or groups of CAFOs are required to respond to an information 

collection request, EPA would conduct a variety of informational outreach efforts. First, EPA 

would publish in the Federal Register a notice describing the boundaries of the targeted area(s) 

and the information submission requirements for CAFOs within those areas at least [30] days 
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before the beginning of any information submission period. EPA would also conduct extensive 

outreach with the regulated community and interested stakeholders to notify CAFOs in the focus 

watershed of their responsibility to provide information. EPA would work with the state and 

local authorities in providing this outreach. For example, EPA might hold public meetings in the 

area, place notices in newspapers, and use other available local media. EPA notes that the 

owners or operators of AFOs that have not been designated and that do not confine the required 

number of animals to meet the definition of a Large or Medium CAFO would not be required to 

submit information as specified in proposed paragraph § 122.23(k)(4) to EPA. 

Under proposed paragraph § 122.23(k)(3), EPA would conduct outreach to CAFOs in the

targeted area for at least [30 days] prior to the start of any reporting period to notify operations 

that they are required to report the information specified in proposed paragraph § 122.23(k)(4) to 

EPA. EPA seeks comment on ways to inform and reach CAFOs in targeted areas if they are 

required to provide information. EPA also seeks comment on the timeframe provided for 

outreach to CAFOs in targeted areas. 

7. When would CAFOs in a focus watershed be required to submit the information to EPA?

If EPA needed to use 308 authority to collect information from CAFOs, after the end of 

EPA’s outreach period for CAFOs in the targeted area, CAFOs would have [90 days] to submit 

the information to EPA. EPA would identify the specific deadline for submitting the information 

during EPA’s outreach period as well as by publishing the deadline in the Federal Register 

notice, which is required at least [30] days before the beginning of any information submission 

period . 

EPA seeks comment on the amount of time a CAFO in a targeted area would need to 

submit the information to EPA.
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8. How would CAFOs in a focus watershed submit information to EPA?

If EPA needed to use 308 authority to collect information from CAFOs, CAFOs in focus 

watersheds would submit the information in the same manner as specified in proposed option 1 

for collecting information from all CAFOs. Specifically, proposed paragraph § 122.23(k)(5)

would require the owner or operator of a CAFO to submit the official survey form electronically 

using the Agency’s information management system available on EPA’s website. EPA proposes

to waive the electronic submission requirement if the information management system is 

otherwise unavailable or the use of the Agency’s information management system would cause 

undue burden or expense over the use of a paper survey form. See section How would CAFOs 

submit the information to EPA of this preamble for a detailed discussion. EPA seeks comment 

on the data submission approach in proposed paragraph § 122.23(k)(5).

E. Failure to Provide the Information as Required by This Proposed Rulemaking 

Under Option 1, and under Option 2 in cases where EPA used its section 308 authority to 

collect information from CAFOs in focus watersheds, CAFO owners or operators that failed to 

submit the information in accordance with the requirements specified in proposed paragraph §

122.23(k) would be in violation of the CWA. Section 309 of the CWA provides for 

administrative, civil and criminal penalties for violations of section 308 of the Act. 33 U.S.C. 

1319. EPA assesses monetary penalties associated with civil noncompliance using a national 

approach as outlined by the Agency’s general penalty policy. More information on the amounts 

and calculations of civil penalties is available at

http://cfpub.epa.gov/compliance/resources/policies/civil/penalty/. Additional information on 

criminal noncompliance, is available 

athttp://cfpub.epa.gov/compliance/resources/policies/civil/penalty/. 
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F. Alternative Approaches to Achieve Rule Objectives 

The objective of this proposed action is to improve and protect water quality impacted by

CAFOs. However, EPA recognizes that there may be other ways to achieve this objective, and 

the Agency solicits comment on alternative approaches to meet the objectives of this proposed 

rule. Such alternative approaches may require rulemaking. EPA would consider any such 

suggested alternative approaches in developing the final rule. 

EPA describes three such alternative approaches in this section and seeks public 

comment on these approaches. EPA seeks public comment on alternative approaches to a data 

collection request for CAFOs including: (1) an approach that would obtain data from existing 

data sources, (2) an approach that would expand EPA’s network of compliance assistance and 

outreach tools and (3) an approach requiring NPDES authorized states to submit the information 

as specified by proposed paragraph § 122.23(k)(2) to EPA, which would require rulemaking. 

EPA also seeks comment on other alternative approaches besides the three discussed herein that 

could achieve the same objectives. Any one of these three alternative approaches could be 

enhanced by stewardship and recognition programs, education or assistance programs or 

incentive based programs, carried out in coordination with other partners such as states, industry

or USDA, and could result in improvements in industry practices more quickly than a data 

collection effort. EPA solicits comment on programs such as these that could be employed to 

ensure that CAFOs are implementing measures to protect water quality. 

1. Use of Existing Data Sources 

One alternative approach to the proposed rule would be to rely on the use of available 

existing sources of data on CAFOs, such as information from USDA, states, environmental 

organizations and other interested stakeholder groups. The discussion below describes the 
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sources of information that currently exist, identifies some of the limitations EPA faces in using 

these sources and seeks comment on ways in which EPA could leverage these sources 

collectively to address impacts from CAFOs. 

a. U.S. Department of Agriculture Data

The U.S. Department of Agriculture is a leading source of national, publicly aggregated 

agricultural data. Federal law prohibits USDA from disclosing or using data collected unless the 

information has been converted into a statistical or aggregate form that does not allow the 

identification of the person who supplied particular information 7 U.S.C. 2276(a); see also 7 

U.S.C. 8791(b)(2)(A); Confidential Information Protection and Statistical Efficiency Act, 44 

U.S.C. 3501(2002). Accordingly, USDA withholds any county-level data if that information 

would identify individual producers. In counties where no data are available, the USDA

indicates where data is omitted because of disclosure limitations or because no CAFOs are in 

operation. 

EPA currently uses the publicly available aggregate data from USDA categorized by

animal size thresholds defined by the CAFO rule to refine estimates of the CAFO universe, 

assess animal densities by counties, and identify the number of operations in those counties. 

EPA also can determine from the USDA aggregate data the cumulative number of acres that are 

available for land application at CAFOs, as the total number of acres by county but not by

facility. To obtain facility-specific data, EPA is considering ways in which the Agency could 

combine the publicly available, aggregated data from USDA with other data sources to obtain a 

comprehensive, consistent national inventory of CAFOs to assess and address their impacts on 

water quality. 

b. State permitting programs 
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State NPDES permitting programs should have data on permitted CAFOs, which could 

provide answers to the proposed survey questions in today’s notice. EPA estimates that 

approximately 8,000 CAFOs out of a total universe of 20,000 CAFOs have obtained permit 

coverage under the NPDES program. Authorized states have information from permit 

applications and annual reports for CAFOs with permit coverage. Although not all states have 

made this information electronically accessible, some states have online databases or maps that 

display CAFO data. For example, Missouri requires permit coverage for all CAFOs as well as a 

subset of operations with less than 1,000 animal units and displays a map of these operations in 

relation to waters of the state (http://www.dnr.mo.gov/env/wpp/afo.htm). Missouri Department 

of Natural Resources uses this information to link permitted operations with specific classified 

stream segments in order to facilitate water quality based planning, total maximum daily load 

(TMDL) development and reports required under section 305(b) of the CWA. Similarly, in 

North Carolina all animal feeding operations with a permit, whether under the NPDES program 

or under other state permitting programs, are listed in a spreadsheet that can be downloaded 

(http://portal.ncdenr.org/web/wq/aps/afo/perm). The spreadsheet contains information on the 

number of animals at the operation, type of permit issued to an operation and latitude and 

longitude information for 2,711 operations. 

While those two states are examples of comprehensive sources of information that are

electronically available, other states maintain CAFO records in paper copy, which may not be 

complete or readily available. In addition, information on unpermitted CAFOs generally is not 

available via state records. Currently, EPA provides registered users, such as states, the ability to 

track permit issuance, permit limits and monitoring data through the Integrated Compliance 

Information System (ICIS) or through the Online Tracking Information System (OTIS), which 
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integrates ICIS data with information from other databases such as EPA’s Permit Compliance 

System (PCS). EPA estimates that only 15 to 20 percent of CAFO permit data is stored in one of 

these two systems because many states use separate databases to manage and implement 

permitting programs. A further challenge in aggregating state permitting data is that the 

information collected is not based on a national standardized reporting scheme. Reporting 

inconsistencies across jurisdictions would prevent EPA from compiling a consistent national 

summary of CAFO information. Thus, a national inventory based solely on state data would not 

be comprehensive. 

EPA solicits comment on ways in which data from state permitting authorities could be 

used in conjunction with other sources of information, such as the publicly available aggregate 

data from USDA, to obtain a comprehensive, consistent national inventory of CAFOs to assess 

and address their impacts on water quality.

c. State registration or licensing programs

Permitting programs administered by the state are not the sole source of state information 

on CAFOs. Many state agriculture departments have registration or licensing programs that 

collect information from livestock farms separately from environmental permitting requirements. 

Such sources could be used as a source of information for the unpermitted universe. However, 

EPA’s investigation of those data sources indicates that registration or licensing programs 

typically provide only contact information. 

Despite the limited information available from registration and licensing programs, these 

sources may nevertheless provide a comprehensive list of facilities in a particular sector, which 

EPA could use to supplement information available from a state permitting program. For 

example, in Arkansas, state law requires poultry operations confining 2,500 or more birds on any
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given day to register with the county conservation districts. Information that could be obtained 

from this registration list includes: number and kind of poultry housed; location of the operation; 

litter management system used and its capacity; acreage controlled by the operation; litter land 

applied during the last year; amount and destination of litter transferred; amount of litter utilized 

by the producer and the type of utilization; and the name of the poultry operation’s processor. 

Similarly, dairy licensing programs contain site-specific information, which may be 

publicly available. For example, the Ohio Department of Agriculture requires milk producers of 

grade A and manufactured milk to obtain a license prior to operation. As part of this process, a 

milk producer must provide evidence of a safe water supply and submit prepared plans for the 

milkhouses, milking barns, stables and parlors at the operation. Ohio Department of Agriculture 

provides a list by county of the number of active dairy farms in the state 

(http://www.agri.ohio.gov/apps/DairyFarmsReport/FarmsReportPage.aspx). This information 

could be used in conjunction with the USDA’s publicly available aggregate data to determine 

CAFO locations by county in Ohio. 

EPA seeks comment on the availability of registration and licensing lists and whether 

information obtained from such programs could be shared with EPA. If so, such data could also 

be used as part of a comprehensive effort to address CAFO impact on water quality. EPA seeks 

input on ways in which data from these lists could be used in conjunction with other sources of 

information, such as USDA’s publicly available aggregated data, to obtain a comprehensive, 

consistent national inventory of CAFOs to assess and address their impacts on water quality. 

d. Satellite imagery and aerial photographs

EPA, states, and academic institutions have used satellite imagery to locate and map 

CAFOs. For example, through a cooperative agreement with EPA, Jacksonville State University
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and Friends of Rural Alabama (JSU and FRA) created the American Environmental Geographic 

Information System (http://www.aegis.jsu.edu/) to assist in watershed analyses and planning. 

This system provides maps and environmental data for a variety of industries, including animal 

feeding operations, in a select number of eastern states. JSU and FRA visually scanned satellite 

images for structures commonly used to confine animals. Clusters of long, white buildings were 

identified as poultry operations or as swine operations, when an open-air pit or lagoon system 

was visible. 

EPA also has used aerial flyovers to obtain real time aerial photography for a variety of 

purposes, including identifying and updating the universe of CAFOs, identifying potential illegal 

discharges from CAFOs to waters of the United States. and prioritizing follow-up site 

inspections. While resource intensive, flyovers can be used to cover specific geographic areas 

and/or areas with difficult terrain. 

These methodologies present certain limitations as a source of data on CAFOs. While 

satellite imagery and aerial photographs may identify location information for some animal 

feeding operations, a user may not be able to determine whether structures actually contained 

animals, whether an operation met the regulatory definition of a CAFO or had NPDES permit 

coverage. Therefore, this information source is most useful when supplemented by on-theground efforts to confirm site-specific information. For example, location information from 

aerial photography or satellite images may be combined with state and county websites that 

provide tax parcel information, building histories and permit histories, so as to identify animal 

feeding operations that may meet the CAFO requirements for obtaining a permit. EPA solicits 

comment on other ways to augment information from satellite images and aerial photography
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location information to obtain a comprehensive, consistent national inventory of CAFOs to 

assess and address their impacts on water quality. 

e. Reporting requirements under other programs

EPA’s Assessment, TMDL Tracking and Implementation System (ATTAINS) database 

(www.epa.gov/waters/ir) displays water quality findings reported by the states under section

305(b) and section 303(d) of the Clean Water Act. These findings represent state decisions as to 

whether assessed waters are meeting their water quality standards. Assessment decisions are 

made by the states based primarily on monitoring targeted to areas known or suspected to be 

impaired and may not fully represent all conditions within a state. While not all waters are 

assessed, the database identifies which watersheds are impaired. The findings are updated in the 

database as new state Integrated Reports (305b and 303d) are received, reviewed and posted and 

may reflect 2010, 2008, or 2006 data from states, depending on their latest submission. EPA 

seeks comment on ways in which impairment information from this source can be compared to 

CAFO data, such as animal density or number of operations, to inform efforts to address water 

quality impacts from CAFOs. 

Although on a separate track from this proposed rule, EPA is currently in the process of 

developing a rulemaking to amend reporting requirements for livestock operations on air 

emissions under the Comprehensive Environmental Response, Compensation, and Liability Act 

(CERCLA) section 103 and (Emergency Planning & Community Right-to-Know Act) EPCRA 

section 304. This information collection effort may offer an alternative means of collecting data 

on livestock operations that would meet the Agency’s Clean Water Act needs. As the Agency

moves forward with the CERCLA/EPCRA reporting requirements proposed rulemaking, there is 

an opportunity to explore how to leverage reporting to EPA from livestock operations to meet 
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information needs under CERCLA/EPCRA and the CWA simultaneously. EPA solicits 

comment on ways in which this could be achieved to obtain a comprehensive, consistent national 

inventory of CAFOs to assess and address their impacts on water quality. 

f. Other sources of data

Nongovernmental entities have published reports on CAFOs, such as the Food & Water 

Watch Report – Factory Farm Nation: How American Turned Its Livestock Farms into Factories

and the Pew Commission report – Putting Meat on the Table: Industrial Farm Animal 

Production in America. These reports provide helpful background information and case studies. 

EPA currently uses the results of these studies to identify research needs but solicits comments 

on how such reports could enhance additional EPA efforts to reduce water quality impairments 

from CAFOs. 

Extension agents and conservation programs also have information on CAFOs. EPA 

solicits comment on how the Agency could work with state cooperative extension programs, land 

grant universities and other conservation programs to gather information on CAFOs and to 

coordinate efforts to protect water quality. In general, these sources only release aggregated data 

and may not specifically focus on operations that meet EPA’s definition of a CAFO. 

In summary, through this alternative approach, EPA could combine a variety of existing 

data sources to determine where CAFOs are located and overlay this information with existing 

data on impaired waterbodies to determine where regulatory activities should be focused. While 

existing data sources are not consistent and are not comprehensive nationwide, the Agency seeks 

comment on how these sources, as well as additional sources not described herein, could be used 

collectively to protect water quality from CAFO discharges rather than promulgating a survey

requirement for all CAFOs to provide information. 
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2. Alternative Mechanisms for Promoting Environmental Stewardship and Compliance 

Under this alternative approach, EPA would expand its network of compliance 

assistance, outreach tools and partnerships with industry to assist in addressing the most 

significant water quality problems. Comprehensive compliance assistance and outreach efforts 

are tools a regulatory program can use in partnerships with industry to proactively protect and 

maintain water quality. 

 EPA recognizes that stewardship and recognition programs, education or technical 

assistance programs and incentive based programs, often carried out in coordination with other 

partners such as states, industry, or USDA, could result in improvements in industry practices 

more quickly than a data collection effort. Two current examples of such programs are: (1) the 

Ag Center, (http://www.epa.gov/agriculture), which provides compliance and environmental 

stewardship information related to animal feeding operations and partners with USDA and state 

land grant universities to promote environmental stewardship and improve manure and nutrient 

management practices; and (2) EPA’s partnership with USDA’s extension program, offering a 

wide range of compliance and environmental stewardship information for livestock operators 

through the Livestock and Poultry Environmental Learning Center available at 

http://www.extension.org/animal_manure_management. EPA solicits comment on how best to 

use alternative mechanisms such as these to ensure CAFOs are implementing measures to protect 

water quality. This approach would not require a rulemaking; rather it would focus on the use of 

activities that already are authorized under existing regulations. The success of such efforts 

would depend in large part on coordination with EPA’s state partners and the cooperation and 

assistance of industry and environmental groups. 
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3. Require Authorized States to Submit CAFO information From their CAFO Regulatory 

Programs and Only Collect Information from CAFOs if a State Does Not Report.

This alternative regulatory approach, is a variation of the proposed approach and would 

require NPDES authorized state regulatory agencies to submit the information proposed by

paragraph § 122.23(k)(2). Many states may know the universe of CAFOs in their state to ensure 

proper implementation and enforcement of the CWA’s permitting requirements and to protect 

water quality.

Although EPA recognizes that states may not have information on all CAFOs in their 

state, this alternative approach would require states to provide information for CAFOs for which 

they do have information as part of their CAFO regulatory programs. As a result, the data EPA 

would collect would not necessarily be comprehensive. Under this approach, EPA would only

require information from CAFOs where a state failed to provide the required information to 

EPA. 

It is likely that a number of states already have the information that would be required by 

proposed paragraph § 122.23(k)(2) for NPDES permitted CAFOs. Some states require CAFOs 

that have not sought coverage under an NPDES permit to obtain a separate state permit. For 

example, Maryland requires CAFOs that discharge to obtain NPDES CAFO permits and CAFOs 

that do not discharge to obtain state Maryland Animal Feeding Operation (MAFO) permits. 

Other states may have access to other data sources for CAFOs that could be used to provide the 

information. 

Under this alternative approach, each state would be required to report the information to 

EPA. States would be required to submit the information within a given timeframe, and EPA 
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would compile that information into a database. CAFOs would be required to provide whatever

information a state fails to provide. 

EPA seeks comment on whether authorized states should be required to provide 

information from their CAFO regulatory programs on behalf of the CAFOs within their 

boundaries. EPA also seeks comment on whether it should allow states to submit data from 

CAFO from sources other than a state regulatory program. EPA also seeks comment on, if it 

selects this alternative, whether EPA should allow or require CAFOs to review the information 

in the database. 

IV. Impact Analysis 

A. Benefits and Costs Overview

When EPA issued the revised CAFO regulations on February 12, 2003, it estimated 

annual pollutant reductions due to the revisions at 56 million pounds of phosphorus, 110 million 

pounds of nitrogen and two billion pounds of sediment. This proposed rulemaking would not 

alter the benefits calculated in the 2003 rule. The effect of the proposed rule would be to enable 

full attainment of the benefits calculated in the 2003 rule by furnishing EPA with information on 

the universe of CAFOs. To date, EPA estimates that approximately 58 percent of CAFOs do not

have NPDES permits. The information collected under this proposal would help ensure that 

CAFOs that discharge have NPDES permit coverage necessary to achieve these environmental 

benefits. 

The proposed rulemaking would not alter any permitting requirements or the technical 

requirements under the Effluent Limitations Guidelines and Standards (ELGs), so CAFOs would 

not incur any compliance costs associated with modifications to structures or operational 
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practices. The only cost associated with this rule to affected entities is the reporting burden to 

provide the required information to EPA as specified in this proposal. 

B. Administrative Burden Impacts

Since there is no change in technical requirements, cost impacts to CAFOs are 

exclusively due to changes in the information collection burden. To determine the administrative 

burden for the Paperwork Reduction Act (PRA) analysis, the Agency projected the burden that 

CAFOs would incur because of the new requirements. 

To complete this projection, the Agency started with its current estimate of the total 

number of CAFOs in the U.S. and then examined the administrative burden that would be 

incurred by these operations. It is important to note that while EPA’s estimates of CAFOs are 

adequate for purposes of completing the impact analyses required under statute and executive 

order, the data are insufficiently detailed for purposes of identifying precise locations of specific 

CAFOs or clusters of CAFOs, understanding their operational practices and assessing their 

potential environmental impacts. 

EPA’s most recent information on the number of CAFOs in the U.S. shows that as of 

2010 there were approximately 20,000 CAFOs, both permitted and unpermitted. To estimate the 

reporting burden faced by these CAFOs under the proposed rule requirements, EPA examined its 

prior PRA analyses. These analyses had assumed that CAFOs applying for NPDES permit 

coverage would incur a nine hour administrative burden to complete and file NPDES permit 

applications or notices of intent. Based on comparing the reporting items for permit applications 

to the reporting items in the proposed rulemaking, EPA estimated that a CAFO would need one 

hour to gather and submit the information on the proposed survey form to EPA as indicated in 

the proposed rulemaking. This burden estimate reflects both the time to understand the reporting 
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requirements as well as time to complete the survey form electronically or by paper, when 

necessary.

EPA’s PRA analysis combines the updated estimates of numbers of CAFOs and the 

estimates of the reporting burden to project that CAFO operators would collectively experience 

an increase in total annual administrative burden of approximately $0.2 million under the first 

proposed option where all CAFOs would submit their information to EPA. The costs associated 

with the option to collect information only from CAFOs in focus watersheds would be a subset 

of these costs. 

Under the requirements as laid out in proposed paragraph § 122.23(k)(5) for the first 

proposed option, state permitting authorities would not incur any administrative burden arising 

out of the rulemaking since CAFOs would report their information directly to EPA. States 

would have the option of submitting information on their CAFOs electronically; however, EPA 

anticipates that the states that would choose this option are those for whom this type of batch 

reporting would not impose an undue burden. 

This Federal Register notice also includes an alternative approach that would require 

states to provide information on CAFOs in their state. EPA costed this alternative approach 

separately in the proposed rule supporting analysis. Under this approach, the reporting burden 

would shift from CAFOs to states since states would be responsible for reporting the data

proposed to be collected to EPA. To complete a cost estimate for this approach, EPA estimated 

a cumulative incremental cost based on an assumption that all states would submit their CAFO 

records as paper files to the Agency. For purposes of costing this scenario, EPA estimated that it 

would take states one hour to prepare and submit records for 20 facilities. This labor burden 

combined with photocopying costs yielded a total state respondent average incremental annual 
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cost of $16,391. EPA solicits comment on the burden analysis regarding the requirement for 

states to submit CAFO information from their regulatory programs. 

The documentation in the public record on the PRA analysis for this proposed 

rulemaking discusses more fully the assumptions used to project the associated administrative 

burden, including the burden faced by CAFOs that subsequently may need to update any

information submitted previously. 

V. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory Planning and Review and Executive Order 13563: 

Improving Regulation and Regulatory Review

Under Executive Order 12866 (58 FR 51,735; October 4, 1993), this proposed action is a 

“significant regulatory action. Accordingly, EPA submitted this proposed action to the Office of 

Management and Budget (OMB) for review under Executive Orders 12866 and 13563 (76 FR 

3821, January 21, 2011) and any changes made in response to OMB recommendations have been 

documented in the docket for this proposed action.

In addition, EPA prepared an analysis of the potential costs and benefits associated with 

this proposed action. This analysis is summarized in Section IV of this preamble above, entitled 

Impact Analysis. A copy of the supporting analysis is available in the docket for this action.

B. Paperwork Reduction Act

The information collection requirements in this proposed rule have been submitted for 

approval to the Office of Management and Budget (OMB) under the Paperwork Reduction Act, 

44 U.S.C. 3501 et seq. The Information Collection Request (ICR) document prepared by EPA 

was assigned EPA ICR No. 1989.08.
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The proposed rule would require CAFOs to provide EPA with basic facility information. 

This action would provide EPA with the information on the universe of CAFOs it needs to 

ensure compliance with the CWA. EPA projects that the proposed rule would cause CAFO 

operators to experience an increase in annual administrative burden of 6,960 labor hours 

annually, which translates into an increased annual administrative cost of $0.2 million. The 

increase in administrative costs is based on projecting submission costs for all CAFOs, and is 

derived exclusively from the recordkeeping and reporting requirements associated with 

submitting the required information to EPA as detailed in the proposed rule. EPA assumed for 

purposes of the PRA analysis that a CAFO would incur a labor burden of one hour for filing the 

required information. The proposed action would not impose any new capital costs on affected 

entities. The burden for the initial reporting is averaged over three years for purposes of 

calculating burden under the PRA. EPA requests comment on its estimate of burden and costs 

for CAFOs to comply with the reporting requirements in the two co-proposed rule options.

Under the proposed rule, states would have the option of providing EPA with datasets on 

their CAFOs with existing NPDES permits. However, the effort to generate these datasets is not 

costed as part of the ICR since EPA assumes that the states that choose to provide the datasets to 

EPA would be the ones for whom this task would not be overly burdensome, and the burden the 

states would incur would be in lieu of a comparable burden avoided by CAFOs that the states 

reported for.

Additional details on the assumptions and parameters of the PRA analysis are available in 

the ICR document referenced above, which is available in the docket supporting this proposed 

rulemaking. Burden is defined at 5 CFR 1320.3(b).
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A federal agency may not conduct or sponsor, and a person is not required to respond to, 

a collection of information unless it displays a currently valid OMB control number. The OMB 

control numbers for EPA's regulations in 40 CFR are listed in 40 CFR part 9.

To comment on the Agency's need for this information, the accuracy of the provided 

burden estimates, and any suggested methods for minimizing respondent burden, EPA has 

established a public docket for this proposed rule, which includes the ICR, under Docket ID 

number EPA–HQ–OW–2011–0188. Please submit any comments related to the ICR to EPA and 

OMB. See ADDRESSES section at the beginning of this notice for where to submit comments 

to EPA. Send comments to OMB at the Office of Information and Regulatory Affairs, Office of 

Management and Budget, 725 17th Street, NW, Washington, DC 20503, Attention: Desk Office 

for EPA. Since OMB is required to make a decision concerning the ICR between 30 and 60 days 

after [insert the date of publication], a comment to OMB is best assured of having its full effect if 

OMB receives it by [insert date 30 days after publication]. The final rule would respond to any 

OMB or public comments on the information collection requirements contained in this proposal.

C. Regulatory Flexibility Act

The Regulatory Flexibility Act (RFA) generally requires a federal agency to prepare a 

regulatory flexibility analysis of any rule subject to notice and comment rulemaking 

requirements under the Administrative Procedure Act or any other statute unless the agency

certifies that the rule would not have a significant economic impact on a substantial number of 

small entities. Small entities include small businesses, small organizations and small 

governmental jurisdictions.

For purposes of assessing the impacts of this rule on small entities, small entity is defined 

as: (1) a small business based on Small Business Administration (SBA) size standards at 13 CFR 
Page 77 of 102

121.201; (2) a small governmental jurisdiction that is a government of a city, county, town, 

school district, or special district with a population of less than 50,000; and (3) a small 

organization that is any not-for-profit enterprise which is independently owned and operated and 

is not dominant in its field.

After considering the economic impacts of this rule on small entities, I certify that this 

proposed action would not have a significant economic impact on a substantial number of small 

entities. This proposed rule does not change any of the substantive requirements for CAFO 

operators. While it does increase the net paperwork burden faced by facilities compared to the 

burden imposed under the 2003 CAFO rule, these incremental costs are small compared to the 

existing paperwork burden faced by CAFOs and represent an increase in annualized compliance 

costs that is significantly less than one percent of estimated annual sales for any of the affected 

entities. To reach this determination, EPA examined sales figures reported in USDA’s publicly

available aggregated data and concluded that it is unlikely that the estimated upper-bound burden 

impact of one hour per CAFO would exceed one percent of the average annual sales of any of 

the livestock operations for whom sales figures were reported.

Additionally, this proposed rule would not affect small governments, as the permitting 

authorities are state or federal agencies and the information would be submitted directly to EPA.

EPA continues to be interested in the potential impacts of the proposed rule on small 

entities and welcomes comments on issues related to such impacts.

D. Unfunded Mandates Reform Act

Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), P.L. 104-4, establishes 

requirements for federal agencies to assess the effects of their regulatory actions on state, local, 

tribal governments and the private sector. Under section 202 of UMRA, EPA generally must 
Page 78 of 102

prepare a written statement, including a cost-benefit analysis, for proposed and final rules with 

“federal mandates” that may result in expenditures by state, local and tribal governments, in the 

aggregate, or to the private sector, of $100 million or more in any one year. Before promulgating 

an EPA rule for which a written statement is needed, section 205 of the UMRA generally 

requires EPA to identify and consider a reasonable number of regulatory alternatives and adopt 

the least costly, most cost-effective, or least burdensome alternative that achieves the objectives 

of the rule. The provisions of section 205 do not apply when they are inconsistent with 

applicable law. Moreover, section 205 allows EPA to adopt an alternative other than the least 

costly, most cost-effective, or least burdensome alternative if the Administrator publishes with 

the final rule an explanation why that alternative was not adopted. Before EPA establishes any 

regulatory requirements that may significantly or uniquely affect small governments, including 

tribal governments, it must have developed under section 203 of the UMRA a small government 

agency plan. The plan must provide for notifying potentially affected small governments, 

enabling officials of affected small governments to have meaningful and timely input in the 

development of EPA regulatory proposals with significant federal intergovernmental mandates

and informing, educating and advising small governments on compliance with the regulatory

requirements.

EPA has determined that this proposed rule does not contain a federal mandate that may

result in expenditures of $100 million or more for state, local and tribal governments, in the 

aggregate, or the private sector in any one year. The proposed rule also presents an alternative 

approach that would require states to submit information on CAFOs. EPA determined that this 

alternative approach, which principally would involve photocopying, would also not result in a 
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burden above the threshold. Thus, this rule is not subject to the requirements of sections 202 and 

205 of the UMRA.

EPA has determined that this rule would contain no regulatory requirements that might 

significantly or uniquely affect small governments. There are no local or tribal governments 

authorized to implement the NPDES permit program and the Agency is unaware of any local or 

tribal governments who are owners or operators of CAFOs. Thus, this rule is not subject to the 

requirements of section 203 of UMRA.

E. Executive Order 13132: Federalism

This proposed action does not have federalism implications. Since the reporting under 

the proposed rule would require CAFOs to submit their information directly to EPA, it would not 

have substantial direct effects on the states, on the relationship between the national government 

and the states, or on the distribution of power and responsibilities among the various levels of 

government, as specified in Executive Order 13132. The proposed rule would offer states the 

option of submitting information on behalf of the state’s CAFOs. However, the proposed rule 

would not require states to adopt this option; therefore, EPA does not consider this proposed rule 

to have a substantial impact on states. Thus, Executive Order 13132 does not apply to this 

proposed action.

EPA is requesting comment on alternative approaches for gathering CAFO information. 

One of these approaches would require States to submit information on their CAFOs. EPA 

examined costs associated with this alterative and concluded based on a conservative estimate of 

burden impacts that the alternative would not trigger federalism concerns. 
Page 80 of 102

In the spirit of Executive Order 13132 and consistent with EPA policy to promote 

communications between EPA and state and local governments, EPA specifically solicits 

comment on this proposed action from state and local officials. 

F. Executive Order 13175: Consultation and Coordination with Indian Tribal Governments

This proposed action does not have tribal implications, as specified in Executive Order 

13175 (65 FR 67249, November 9, 2000), because there are currently no tribal governments 

authorized for the NPDES program. In addition, EPA is not aware of any Indian tribal 

governments that own CAFOs that would be subject to the proposed reporting requirements. 

Thus, Executive Order 13175 does not apply to this action. 

This proposed rulemaking could have the effect of providing increased opportunities for 

the tribal governments to obtain information on all CAFOs within their governmental boundaries

and, as such, may facilitate their interactions with entities of possible concern. 

In the spirit of Executive Order 13175 and consistent with EPA policy to promote 

communications between EPA and tribal governments, EPA would also distribute information 

on the outcome of the rulemaking process once the rulemaking action is finalized. 

EPA solicits comment on the Agency’s approach to meeting its obligations under E.O. 

13175 for the proposed action. 

G. Executive Order 13045: Protection of Children from Environmental Health and Safety 

Risks

Executive Order 13045 “Protection of Children from Environmental Health Risks 

and Safety Risks” (62 FR 19,885; April 23, 1997) applies to any rule that: (1) is 

determined to be “economically significant” as defined under Executive Order 12866 and 

(2) concerns an environmental health or safety risk that EPA has reason to believe may 
Page 81 of 102

have a disproportionate effect on children. If the regulatory action meets both criteria, the 

Agency must evaluate the environmental health or safety effects of the planned rule on 

children, and explain why the planned regulation is preferable to other potentially

effective and reasonably feasible alternatives considered by the Agency.

This proposed rule is not subject to Executive Order 13045 because it is not 

economically significant as defined in Executive Order 12866 and because the Agency

does not have reason to believe the environmental health or safety risks addressed by this 

proposed action present a disproportionate risk to children. The benefits analysis 

performed for the 2003 CAFO rule determined that the rule would result in certain 

significant benefits to children’s health. (Please refer to the Benefits Analysis in the 

record for the 2003 CAFO final rule.) This proposed action does not affect the 

environmental benefits of the 2003 CAFO rule.

H. Executive Order 13211: Actions Concerning Regulations That Significantly Affect 

Energy Supply, Distribution, or Use

This rule is not a “significant energy action” as defined in Executive Order 13211 (66 FR 

28355 (May 22, 2001)), because it is not likely to have a significant adverse effect on the supply, 

distribution, or use of energy. EPA has concluded that this rule is not likely to have any adverse 

energy effects since CAFOs in general do not figure significantly in the energy market, and the 

regulatory revisions finalized in this rule are not likely to change existing energy generation or 

consumption profiles for CAFOs.

I. National Technology Transfer and Advancement Act

Section 12(d) of the National Technology Transfer and Advancement Act of 1995 

(“NTTAA”), Public Law No. 104-113, 12(d) (15 U.S.C. 272 note) directs EPA to use voluntary
Page 82 of 102

consensus standards in its regulatory activities unless to do so would be inconsistent with 

applicable law or otherwise impractical. Voluntary consensus standards are technical standards 

(e.g., materials specifications, test methods, sampling procedures and business practices) that are 

developed or adopted by voluntary consensus standards bodies. NTTAA directs EPA to provide 

Congress, through OMB, explanations when the Agency decides not to use available and 

applicable voluntary consensus standards. 

This proposed rulemaking does not involve the use of technical standards. Therefore, 

EPA is not considering the use of any voluntary consensus standards. 

J. Executive Order 12898: Federal Actions to Address Environmental Justice in Minority 

Populations and Low-Income Populations 

Executive Order (EO) 12898 (59 FR 7629 (Feb. 16, 1994)) establishes federal executive 

policy on environmental justice. Its main provision directs federal agencies, to the greatest 

extent practicable and permitted by law, to make environmental justice part of their mission by

identifying and addressing, as appropriate, disproportionately high and adverse human health or 

environmental effects of their programs, policies and activities on minority populations and lowincome populations in the United States. 

EPA has determined that the information collected by this rule could benefit minority and 

low-income populations by providing information on nearby CAFOs with potential effects on 

neighboring communities. In addition, the Agency anticipates that the information to be 

collected under the rulemaking would aid EPA’s consideration of environmental justice concerns 

as the Agency moves forward with implementation of the NPDES CAFO program. 

As part of EPA’s continued effort to meet its obligations under E.O. 12898, the Agency has 

completed an analysis to identify those portions of the country where there are both large 
Page 83 of 102

numbers of CAFOs as well as concentrations of minority and low-income populations. These 

regions include parts of the Carolina lowlands, central California and the Delmarva Peninsula on 

the Chesapeake Bay. 

EPA solicits comment on the ability of the questions as proposed to support consideration 

of environmental justice (EJ) concerns related to future design and implementation of the 

NPDES CAFO program. EPA seeks comment on what other questions beyond those proposed 

would support EJ concerns and be valuable to EJ communities. EPA welcomes suggestions for 

EJ groups who could help shape the Agency’s outreach to EJ communities. EPA also seeks 

comment on its analysis supporting E.O. 12898, which shows where large numbers of CAFOs 

and EJ communities co-exist. The supporting analysis is contained in the docket for the 

proposed rulemaking.
Page 84 of 102

United States Environmental Protection Agency

Washington, DC 20460 Form Approved

INFORMATION GATHERING SURVEY FORM 

FOR CONCENTRATED ANIMAL FEEDING 

OPERATIONS

OMB No.

2040-0250

EPA ICR No.

1989.08

SUBMISSION INFORMATION 

Electronic Submission Waiver

I hereby acknowledge a waiver from the use of EPA’s electronic information management system 

because the use of such system will incur undue burden or expense over my use of this paper survey form. 

Briefly describe the reason why use of the electronic system causes undue burden or expense. 

_____________________________________________________________________________.

Please check the appropriate box. Check only one checkbox. 

 First Submission 

 Resubmission with changes to the information supplied previously 

 Resubmission with no change to the information supplied previously 

 Operation no longer a concentrated animal feeding operation (CAFO)

QUESTION 1. CONTACT INFORMATION

Provide contact information by completing the table below. 

OWNER/OPERATOR INFORMATION or AUTHORIZED REPRESENTATIVE INFORMATION 

Name of the Owner/Operator OR Authorized Representative

Primary Telephone for Owner/Operator or Authorized Representative Email Address (if available)

Mailing Address

Street/P.O. Box City

State Zip Code

QUESTION 2. LOCATION INFORMATION

Please provide the location of the production area either by 1) latitude and longitude (in decimal 

degrees); or by the street address of the CAFO’s production area.

 

Geographic Latitude and Longitude of the Production Area

Latitude: Longitude:

OR

Address of the CAFO’s Production Area

Street Address City

State Zip Code
Page 85 of 102

QUESTION 3. NPDES PERMIT INFORMATION

Does the CAFO have a current NPDES permit? 

 No: Proceed to Section 4. Type and Number of Animals . 

 Yes: Provide NPDES permit number and the date of issuance:

NPDES Permit No./Tracking No./ID:_____________________________________________

Date of issuance: Month:________________Day:______________Year:________________ 

 Pending: Provide the date that the NOI or permit application was submitted for coverage 

under an NPDES permit: 

Month:______________________________Day:______________Year:_________________

QUESTION 4. TYPE AND NUMBER OF ANIMALS

Use the table to indicate the maximum number of animals for each animal type held either in 

open confinement including partially covered or housed totally under roof at the CAFO for a 

total of 45 days or more in the previous 12 months. The 45 days do not have to be consecutive. 

4.1.1 ANIMAL TYPE 4.1.2 MAXIMUM NUMBER OF 

ANIMALS

 Mature Dairy Cows (milked or 

dry)

 Veal Calves 

Cattle (not dairy or veal calves)

 Heifers

 Steers

 Bulls

 Cow/calf pairs

 Swine (55 lbs. or over)

 Swine (under 55 lbs.)

 Horses

 Sheep or Lambs

 Turkeys

 Chickens (Broilers)

 Chickens (Layers)

 Ducks

 Other: Please Specify

QUESTION 5. LAND APPLICATION 

Where the CAFO land applies manure, litter, or process wastewater:

a. In the previous 12-months, how many acres of land under the control of the CAFO were 

available for applying the CAFO’s manure, litter, and/or process wastewater? (Please include 

land owned by the CAFO, land that is rented or leased from others, and any land that is 

owned by the CAFO that is rented or leased to others in which the owner or authorized 

representative of the CAFO retains nutrient management decisions). __________-

__________________acres

SIGNATURE REQUIREMENTS 
Page 86 of 102

All submissions provided pursuant to this information gathering survey form must be signed and 

dated by a responsible party in accordance with 40 CFR 122.22 for following certification 

statement:

I certify under penalty of law that I am the responsible party for a concentrated animal 

feeding operation (CAFO), identified as [Name of CAFO]. Based on my inquiry of the person 

or persons directly responsible for gathering the information, I certify that the information 

contained in or accompanying this submission, to the best of my knowledge and belief, is true, 

accurate, and complete. I am aware that there are significant penalties for submitting false 

information, including the possibility of fine and imprisonment for knowing violations. 

Signature_______________________________ Printed Name_______________________

Title_________________________________________________________________________

Date_________________________________________________________________________
Page 87 of 102 

INSTRUCTION SHEET

GENERAL INSTRUCTIONS

Defined Terms

Terms in italics below are specifically defined in the Survey Form Definitions section of 

these instructions. Refer to this section for specific meaning of these terms. 

Purpose of Form

Owners of concentrated animal feeding operations (CAFOs) must use this survey form to 

submit the information required by 40 CFR 122.23(k). 

Who Must File

Owners of CAFOs are required to submit the information specified at 40 CFR 122.23(k) 

regardless of whether the CAFO is required to seek NPDES permit coverage. For the 

purposes of this survey, a CAFO means an animal feeding operation (AFO) that is 

defined as a Large CAFO or Medium CAFO by 40 CFR 122.23(b), or that is designated 

as a CAFO in accordance with 40 CFR 122.23(c). Further definitions for the purpose of 

this form are in the section, Survey Form Definitions. The owners of AFOs that have not 

been designated and that do not confine the required number of animals to meet the 

definition of a Large or Medium CAFO are not required to submit information. 

Where to Submit

Send the completed and signed survey form to:

U.S. EPA 

Office of Water, Office of Wastewater Management, Mail Code 4203M

1200 Pennsylvania Avenue NW

Washington, DC 20460

When to Submit 

Under proposed option 1, owners of CAFOs must submit the survey form to EPA [within 

90 days after EPA makes available a list of CAFOs for which a state has provided the 

information] and under proposed option 2, owners of CAFOs must submit the survey

form by [the deadline specified in a separate Federal Register Notice]. NPDES 

authorized states that choose to submit the information on behalf of a CAFO would be 

required to submit the information to EPA [within 90 days after the effective date of the 

rule]. Subsequently, under proposed option 1, owners of CAFOs not authorized by an 

NPDES permit must resubmit the survey form between [January 1 and June 1, 2022] and 

every subsequent tenth year thereafter between [January 1 and June 1]. The survey form 

provides a checkbox that indicates such resubmissions. 

Entering Responses 

CAFOs must provide the information on this survey form electronically except where 

electronic submission would cause an undue burden or expense. Electronic submissions 

may be made via the Agency’s information management system. Please go to 

www.epa.gov/npdes/afo for more information on how to submit. 
Page 88 of 102 

However, EPA is making paper filing available in recognition that not everyone has 

internet access. If using a hardcopy of the form to submit the information, use blue or 

black ink only to complete a hardcopy of the survey form. Mark the electronic 

submission waiver box and provide a reason why the respondent is providing the 

information by completing and submitting a hard copy of this survey form. 

Please print clearly. Mark all applicable checkboxes with an “X”.

Changes at the operation after the owner submits this information are not required to be 

reported, except that CAFOs not authorized by an NPDES permit must resubmit the 

survey form every 10 years as specified above. 

Confidential Business Information

Regulations governing the confidentiality of business information are contained in the 

Code of Federal Regulations (CFR) at Title 40 Part 2, Subpart B. Under sections 2.208, 

business information is entitled to confidential treatment if, “the business has 

satisfactorily shown that disclosure of the information is likely to cause substantial harm 

to the business's competitive position. You may assert a business confidentiality claim 

covering part or all of the information you submit, as described in 40 CFR 2.203(b):

“(b) Method and time of asserting business confidentiality claim. A business 

which is submitting information to EPA may assert a business confidentiality

claim covering the information by placing on or attaching to the information, at 

the time it is submitted to EPA, a cover sheet, stamped or typed legend, or other 

suitable form of notice complying language such as ‘trade secret’, ‘proprietary,’ 

or ‘company confidential.’ Allegedly confidential portions of otherwise 

nonconfidential documents should be clearly identified by the business, and may 

be submitted separately to facility identification and handling by EPA. If the 

business desires confidential treatment only until a certain date or until the 

occurrence of a certain event, the notice should so state”

If you claim any response as CBI, you must specify the portion of the response or 

document for which you assert a claim of confidentiality by reference to page numbers, 

paragraphs, and lines, or specify the entire response or document. This information must 

be provided as part of the submission of the completed survey form. Note that EPA will 

review the information submitted and may request your cooperation in providing 

information to identify and justify the basis of your CBI claim. Information covered by a 

claim of confidentiality will be disclosed by EPA only to the extent of, and by means of, 

the procedures set forth in 40 CFR Part 2, Subpart B. In general, submitted information 

protected by a business confidentially claim may be disclosed to other employees, 

officers, or authorized representatives of the United States concerned with implementing 

the Clean Water Act. 

SURVEY FORM INSTRUCTIONS

Submission Information 
Page 89 of 102 

Please check the appropriate box to indicate whether the CAFO is supplying information 

for the first time or resubmitting the survey form. A CAFO may also voluntarily update 

their information if the operation is no longer a CAFO. 

 

Section 1. Contact Information

Use legal names. Provide the mailing address for the owner of the CAFO or authorized 

representative. The address may be a business address, a post office box, or the address 

of the CAFO owner or authorized representative. A county road number may indicate 

the operation’s street address. 

Section 2. Location Information

Provide location of the production area either by the latitude and longitude for the 

production area or by the street address of the CAFO’s production area. Please provide 

latitude or longitude in degree decimals. For CAFOs that have multiple production 

areas, such as facilities under common ownership, that either adjoin each other or use a 

common area or system for waste disposal, the entrance to the production area for the 

largest portion of the CAFO should be provided. 

For the purposes of this form, the entrance to the production area may be a road leading 

to the confinement houses or the central point of access to the operation. This 

information is commonly included in a nutrient management plan or, alternatively, the 

respondent may determine the latitude and longitude for the entrance to the production 

area by using interactive maps available on the internet. Latitude or longitude 

information can be obtained at the following websites: http://www.satsig.net/maps/latlong-finder.htm, http://earth.google.com/, and http://www.census.gov/geo/landview/. If 

the units for the CAFO’s latitude or longitude is in minutes/seconds, this information can 

be readily converted through a variety of free internet applications. 

The respondent need only provide either the CAFO’s latitude and longitude or the street 

address of the CAFO’s production area. 

Section 3. NPDES Permit Information

Use the appropriate checkbox to indicate whether the CAFO has a current NPDES permit. 

A current NPDES permit would provide coverage to the CAFO as of the date the report is 

submitted. If you have an NPDES permit, check the “Yes” box and provide the NPDES 

permit number and the date of issuance for NPDES permit coverage. NPDES permit 

coverage may have been issued to the CAFO after submitting an individual NPDES 

permit application or a Notice of Intent (NOI) for coverage under a general NPDES 

permit. CAFOs should find their NPDES permit number on the copy of the permit for an 

individual permit or on the written notification from the permitting authority

acknowledging receipt of the NOI. States may refer to the NPDES permit number as a 

tracking number, operating permit number, or state identification number. For example, 

Maryland identifies its general NPDES permit as “MDG01,” whereas, Missouri’s general 

operating permit number “MO-G010000.” 
Page 90 of 102 

If you do not have an NPDES permit, check the “No” box and go to Section 4. Type and 

Number of Animals. If you applied for an NPDES permit but have not received any 

notice of coverage, please check the “Pending” box and provide the date that the NOI or 

NPDES permit application was submitted. 

Section 4. Type and Number of Animals

Use the table to indicate the maximum number of animals for each animal type held 

either in open confinement including partially covered or housed totally under roof held 

at the CAFO for a total of 45 days or more in the previous 12 months. 

CAFOs with multiple production cycles should provide the maximum number of animals 

confined for any given production cycle. Multiple production cycles are common at 

poultry and swine operations. CAFOs under common ownership should report the 

cumulative number of animals confined for 45 days or more.

It is important to note that the 45 days do not have to be consecutive, and the 12-month 

period does not have to correspond to the calendar year. The 12-month does not have to 

correspond to the calendar year. If an animal is confined at an operation for any portion 

of a day, it is considered to be confined for a full day. Please see definition of an animal 

feeding operation of these instructions. 

 

EXAMPLE: A calf/cow operation that has the capacity to hold 2,000 head of cattle. The 

facility operates year-round and never confines less than 1,000 head of cattle at any one 

time. The facility has both pasture and partially opened barns. The operation meets the 

definition of a CAFO because: 1) it confines the required animal numbers to meet the 

Large CAFO threshold, 2) confines the animals for more than 45 days, and 3) the 

confinement area does not sustain vegetation. For the last 12-month period, the cow/calf 

operation split its calving between fall and spring. During the fall, the operation confined 

1,500 head of cattle for 45 days or more and during the spring, the operation confined 

1,000 head of cattle. This operation should report in the table under calf/cow pairs and 

list 1,500 under the column for “Open Confinement (include partially covered)”. 

Section 5. Land Application

Provide the amount of acres available for land application. Report in whole acres, 

rounding up to the nearest whole number if necessary. Include land associated with the 

CAFO, whether in production or not. Include all land that the owner or operator owned 

or rented during the previous 12-month period, even if only for part of the year, and any 

land that is owned by or rented or leased to others in which the owner or operator of the 

CAFO retains nutrient management decisions. This may also include situations where a 

farmer releases control over the land application area, and the CAFO determines when 

and how much manure is applied to fields not otherwise owned, rented, or leased by the 

CAFO. Exclude residential or other land not used for agricultural purposes. 

Section 6. Signature Requirements
Page 91 of 102 

A responsible official in accordance with 40 CFR 122.22 must sign the certification 

statement provided on the form. Print the name of the signatory. Provide the date of 

signature and title of the signatory. 

SURVEY FORM DEFINITIONS

The definitions provided below are for the purposes of this information gathering survey

form. All terms not defined below shall have their ordinary meaning, unless such terms 

are defined in the Clean Water Act, 33 U.S.C. § 1362, or its implementing regulations 

found at 40 CFR parts 122 and 412 respectively, in which case the statutory or regulatory 

definitions apply. 

1. “Animal feeding operation” means a lot or facility (other than an aquatic animal 

production facility) where animals have been, are, or will be, stabled, confined, and 

fed or maintained for a total of 45 days or more in any 12-month period and crops, 

vegetation, forage growth, or post-harvest residues are not sustained in the normal 

growing season over any portion of the lot or facility. (40 CFR 122.23(b)(1)). Two 

or more AFOs under common ownership are considered to be a single AFO for 

purposes of determining the number of animals at an operation, if they adjoin each 

other, are next to, sharing property lines or if they use a common area or system for 

manure management or the disposal of wastes. (40 CFR 122.23(b)(2)). 

2. “Authorized representative” means an individual who is involved with the 

management or representation of the CAFO. An authorized representative must be 

located within reasonable proximity to the CAFO, and must be authorized and 

sufficiently informed to respond to inquiries from EPA on behalf of the CAFO.

3. “Concentrated animal feeding operation” (CAFO) means an AFO that is defined as a 

Large CAFO or as a Medium CAFO by the terms of this paragraph, or that is 

designated as a CAFO in accordance with paragraph (c) of this section. Two or more 

AFOs under common ownership are considered to be a single AFO for the purposes 

of determining the number of animals at an operation, if they adjoin each other or if 

they use a common area or system for the disposal of wastes.

4. “ Large concentrated animal feeding operation” means an AFO that stables or 

confines as many as or more than the numbers of animals specified in any of the 

following categories: (i) 700 mature dairy cows, whether milked or dry; (ii) 1,000 

veal calves; (iii) 1,000 cattle other than mature dairy cows or veal calves. Cattle 

includes but is not limited to heifers, steers, bulls and cow/calf pairs; (iv) 2,500 swine 

each weighing 55pounds or more; (v) 10,000 swine each weighing less than 55 

pounds; (vi) 500 horses; (vii) 10,000 sheep or lambs; (viii) 55,000 turkeys; (ix) 

30,000 laying hens or broilers, if the AFO uses a liquid manure handling system; (x) 

125,000 chickens (other than laying hens), if the AFO uses other than a liquid manure 

handling system; (xi) 82,000 laying hens, if the AFO uses other than a liquid manure 

handling system; (xii) 30,000 ducks (if the AFO uses other than a liquid manure 

handling system); or (xiii) 5,000 ducks (if the AFO uses a liquid manure handling 

system). 
Page 92 of 102 

5. “Manure” includes manure, or bedding or bedding material, hay, compost, and raw 

material or other materials commingled with manure that is to be land applied or set 

aside for disposal. 

6. “Medium concentrated animal feeding operation” means any AFO with the type and 

number of animals that fall within any of the ranges listed in paragraph (b)(6)(i) of 

this section and which has been defined or designated as a CAFO. An AFO is defined 

as a Medium CAFO if: (i) The type and number of animals that it stables or confines 

falls within any of the following ranges: (A) 200 to 699 mature dairy cows, whether 

milked or dry; (B) 300 to 999 veal calves; (C) 300 to 999 cattle other than mature 

dairy cows or veal calves. Cattle includes but is not limited to heifers, steers, bulls 

and cow/calf pairs; (D) 750 to 2,499 swine each weighing 55 pounds or more; (E) 

3,000 to 9,999 swine each weighing less than 55 pounds; (F) 150 to 499 horses; (G) 

3,000 to 9,999 sheep or lambs; (H) 16,500 to 54,999 turkeys; (I) 9,000 to 29,999 

laying hens or broilers, if the AFO uses a liquid manure handling system; (J) 37,500 

to 124,999 chickens (other than laying hens), if the AFO uses other than a liquid 

manure handling system; (K) 25,000 to 81,999 laying hens, if the AFO uses other 

than a liquid manure handling system; (L) 10,000 to 29,999 ducks (if the AFO uses 

other than a liquid manure handling system); or (M) 1,500 to 4,999 ducks (if the AFO 

uses a liquid manure handling system); and (ii) Either one of the following conditions 

are met: (A) Pollutants are discharged into waters of the United States through a manmade ditch, flushing system, or other similar man-made device; or (B) Pollutants are 

discharged directly into waters of the United States which originate outside of and 

pass over, across, or through the facility or otherwise come into direct contact with 

the animals confined in the operation.

7. “Owner or operator” means the property owner or any person who owns, leases, 

operates, controls, or supervises the operations at the CAFO. Any person who 

operates an AFO subject to regulation under the NPDES program may be involved 

with making day-to-day decisions about, or doing, such things as planting, harvesting, 

feeding, waste management, and/or marketing. The operator can include, but is not 

limited to, the owner, a member of the owner’s household, a hired manager, a tenant, 

a renter, or a sharecropper. 

8. “NPDES Permit” means an authorization, license, or equivalent control document 

issued by EPA or an “approved State” to implement the requirements of the CWA 

NPDES permitting program and implementing regulations at 40 CFR parts 122, 123, 

and 124. 

9. “Process wastewater” means water directly or indirectly used in the operation of the 

AFO including but not limited to: spillage or overflow from animal or poultry

watering systems; washing; cleaning, or flushing pens, barns, manure pits, or other 

AFO facilities; direct contact swimming, washing, or spray cooling of animals; or 

dust control. Process wastewater also includes any water which comes into contact 

with any raw materials, products, or byproduct including, manure, litter, feed, milk, 

eggs, or bedding. 
Page 93 of 102 

10. “Producer” means any grower, breeder, or person who otherwise raises animals for 

production.

11. “Production area” means that part of an AFO that includes the animal confinement 

area, the manure storage area, the raw materials storage area, and the waste 

containment areas. The animal confinement area includes but is not limited to open 

lots, housed lots, feedlots, confinement houses, stall barns, free stall barns, 

milkrooms, milking centers, cowyards, barnyards, medication pens, walkers, animal 

walkways, and stables. The manure storage area includes but is not limited to 

lagoons, runoff ponds, storage sheds, stockpiles, under-house or pit storages, liquid 

impoundments, static piles, and composting piles. The raw materials storage area 

includes but is not limited to feed silos, silage bunkers, and bedding materials. The 

waste containment area includes but is not limited to settling basins, and areas within 

berms and diversions which separate uncontaminated storm water. Also included in 

the definition of production area is any egg washing or egg processing facility, and 

any area used in the storage, handling, treatment, or disposal of mortalities. 

12. “Storage pond” means an earthen impoundment used to retain manure, bedding, 

process wastewater (such as parlor water) and runoff liquid. 

13. “Waste” and/or “wastes” means dredged spoil, solid waste, incinerator residue, 

sewage, garbage, sewage sludge, munitions, chemical wastes, biological materials, 

radioactive materials, heat, wrecked or discarded equipment, rock, sand, cellar dirt, 

and industrial, municipal, and agricultural waste, including but not limited to manure, 

litter, and/or process wastewater, discharged into water. 

Federal regulations require the certification to be signed as follows:

A. For a corporation, by a principal executive officer of at least the level of vice 

president.

B. For a partnership or sole proprietorship, by a general partner or the proprietor, 

respectively; or

C. For a municipality, State, Federal, or other public facility, by either a principal 

executive officer or ranking elected official.

Paper Reduction Act Notice

The public reporting and recordkeeping burden for this collection of information is 

estimated to average one hour per response. The estimate includes time for reviewing 

instructions, searching existing data sources, gathering and maintaining the needed data, 

and completing and reviewing the collection of information. Send comments on the 

Agency's need for this information, the accuracy of the provided burden estimates, and 

any suggested methods for minimizing respondent burden, including through the use of 

automated collection techniques to the Director, Collection Strategies Division, U.S. 

Environmental Protection Agency (2822T), 1200 Pennsylvania Ave., NW, Washington, 

D.C. 20460. Include the OMB control number in any correspondence. Do not send the 

completed survey form to this address.
National Pollutant Discharge Elimination System (NPDES) Concentrated Animal 

Feeding Operation (CAFO) Reporting Rule

Page 94 of 102 

List of Subjects

40 CFR Part 9

Environmental protection, Reporting and recordkeeping requirements. 

40 CFR Part 122

Administrative practice and procedure, confidential business information, 

hazardous substances, reporting and recordkeeping requirements, water pollution control.

[Dated ****]

[Signed ****]

For the reasons set out in the preamble, chapter I of Title 40 of the Code of Federal 

Regulations is proposed to be amended as follows:

PART 9—OMB APPROVALS UNDER THE PAPERWORK REDUCTION ACT 

1. The authority citation for part 9 continues to read as follows:

Authority: 7 U.S.C. 135 et seq., 136–136y; 15 U.S.C. 2001, 2003, 2005, 2006, 

2601–2671; 21 U.S.C. 331j, 346a, 348; 31 U.S.C. 9701; 33 U.S.C. 1251 et seq., 1311, 

1313d, 1314, 1318, 1321, 1326, 1330, 1342, 1344, 1345(d) and (e), 1361; Executive 

Order 11735, 38 FR 21243, 3 CFR, 1971–1975 Comp. p. 973; 42 U.S.C. 241, 242b, 243, 

246, 300f, 300g–1, 300g–2, 300g–3, 300g–4, 300g–5, 300g–6, 300j–1, 300j–2, 300j–3, 

300j–4, 300j–9, 1857 et seq., 6901–6992k, 7401–7671q, 7542, 9601–9657, 11023, 

11048.

2. In § 9.1 the table is amended by adding an entry in numerical order under the 

indicated heading to read as follows: 
§ 9.1 OMB approvals under the Paperwork Reduction Act. 

* * * * *

40 CFR citation OMB control No.

* * * * *

EPA Administered Permit Programs: The National Pollutant Discharge Elimination 

System

* * * * *

122.23(k) ..................................................................................... 2040–0250

* * * * *

PART 122—EPA ADMINISTERED PERMIT PROGRAMS: THE NATIONAL 

POLLUTANT DISCHARGE ELIMINATION SYSTEM

3. The authority citation for part 122 continues to read as follows:

Authority: The Clean Water Act, 33 U.S.C. 1251 et seq.

4. Section 122.23 is amended by adding paragraph (k) to read as follows:

§ 122.23 Concentrated animal feeding operations (applicable to state NPDES programs, 

see § 1223.25)

* * * * *

OPTION 1 FOR PARAGRAPH (k)
(k) Information Gathering Survey for CAFOs. 

(1) All CAFOs must submit information to EPA. The owner(s) or operator(s) of a CAFO, 

as defined in 40 CFR 122.23(b), must provide the information specified in paragraph 

(k)(2) of this section to the Administrator, except in cases where a state voluntarily

fulfills this requirement on behalf of the owner(s) or operator(s) of CAFOs located within 

that state, according to the procedures specified in paragraph (k)(5) of this section. 

(2) Information to be submitted to the Administrator. The owner or operator of a CAFO 

or a state must provide the following information to the Administrator:

(i) The legal name of the owner of the CAFO or an authorized representative, and their

mailing address, email address (if available) and primary telephone number. (An 

authorized representative must be an individual who is involved with the management or 

representation of the CAFO. The authorized representative must be located within 

reasonable proximity to the CAFO, and must be authorized and sufficiently informed to 

respond to inquiries from EPA on behalf of the CAFO);

(ii) The location of the CAFO’s production area identified by the latitude and longitude; 

or by the street address;

(iii) If the owner or operator has NPDES permit coverage as of [the effective date of 

promulgation], the date of issuance of coverage under the NPDES permit, and the permit 

number. If the owner or operator has submitted an NPDES permit application or a Notice 

of Intent as of [the effective date of promulgation] but has not received coverage, the date 

the owner or operator submitted the NPDES permit application or Notice of Intent;

(iv) For the previous 12-month period, identification of each animal type confined either 

in open confinement including partially covered areas, or housed totally under roof at the 
CAFO for 45 days or more, and the maximum number of each animal type confined at 

the CAFO for 45 days or more; and

(v) Where the owner or operator land applies manure, litter and process wastewater, the 

total number of acres under the control of the owner or operator available for land 

application. 

(3) Submission process for CAFOs. The owner or operator of a CAFO must submit the 

information specified in paragraph (k)(2) of this section using the survey form provided 

by the Administrator. The owner or operator of a CAFO must submit the survey form to 

the Administrator, either by certified mail, or electronically, through the Agency’s 

electronic information management system by the deadline specified in (k)(4) of this 

section. If submitting the survey form by certified mail, the owner or operator of a 

CAFO must indicate on the survey form that an electronic submission waiver applies and 

provide justification as to why electronic submission would cause an undue burden or 

expense. 

(4) Deadline for submissions by owners or operators of CAFOs. 

(i) An operation defined or designated as a CAFO as of [the effective date of the final 

rule], where a state did not provide the required information to EPA in accordance with 

paragraph (k)(5) of this section. Where a state does not provide the information required 

by paragraph (k)(2) of this section in accordance with paragraph (k)(5) of this section, a 

CAFO must submit the information required by paragraph (k)(2) in accordance with 

paragraph (k)(3) [within 90 days] after EPA makes available a list of CAFOs for which a 

state has provided the information. 
(ii) CAFOs for which a state has provided the required information to EPA in 

accordance with paragraph (k)(5) of this section. CAFOs for which a state submitted the 

information required by paragraph (k)(2) of this section in accordance with paragraph 

(k)(5) of this section, may, but are not required to, provide information to EPA [within 90 

days] after EPA makes available a list of CAFOs for which a state has provided the 

information. 

(iii) Resubmission requirement for CAFOs not authorized by an NPDES permit. 

CAFOs not authorized by an NPDES permit must submit the information specified in 

paragraph (k)(2) of this section or update information previously submitted, pursuant to 

the procedures specified by paragraph (k)(3) of this section, between January 1 and June 

1 every ten years following 2012 (e.g., 2022, 2032, etc.). The periodic submission 

requirement applies to all CAFOs not authorized by an NPDES permit at the time of 

these dates, whether or not CAFOs at one point had permit coverage at any time prior to 

these dates. CAFOs established after the first 2012 information submission period that 

do not have NPDES permits are subject to this ten-year resubmission requirement. 

(5) Elements of state voluntary submissions. In order to fulfill the requirements of 

paragraphs (k)(1) and (k)(2) of this section on behalf of CAFOs, a state must:

(i) Use the Agency’s electronic information management system to submit the 

information.

(ii) Submit information from the state’s most recent application process, from a CAFO’s 

most recent annual report, or from another current information source,

(iii) Submit the information [within 90 days after the effective date of the rule]. 

OPTION 2 FOR PARAGRAPH (k)
(k) Information Gathering Survey for CAFOs in Focus Watersheds. 

(1) CAFOs in focus watersheds must submit information to EPA. The owner(s) or 

operator(s) of a CAFO, as defined in 40 CFR 122.23(b), located in a focus watershed as 

identified by EPA as provided in paragraph (k)(2)of this section, must, if so notified as 

provided in paragraph (k)(3), provide the information specified in paragraph (k)(4) of this 

section to the Administrator according to the procedures specified in paragraph (k)(5) of 

this section by the deadline specified in (k)(6) of this section. 

(2) How will EPA identify a focus watershed? To identify a focus watershed, EPA shall:

(i) Determine that the area has water quality concerns associated with CAFOs, including 

but not limited to nutrients (nitrogen and phosphorus), pathogens (bacteria, viruses, 

protozoa), total suspended solids (turbidity) and organic enrichment (low dissolved 

oxygen), and consider one or more of the following criteria; 

(A) High priority watershed due to other factors such as vulnerable ecosystems, drinking 

water source supplies, watersheds with high recreational value, or watersheds that are 

outstanding natural resource waters (Tier 3 waters); 

(B) Vulnerable soil type;

(C) High density of animal agriculture; and/or

(D) Other relevant information; and

(ii) Define the geographical location and extent of the focus watershed using Zip Codes, 

counties, hydrologic unit codes (HUCs), or other relevant information that would define 

the geographical location and extent of an area.
(3) How will EPA notify CAFOs in a focus watershed if they have an obligation to 

provide information? If EPA is unable, after reasonable effort, to obtain the information 

in paragraph (k)(4) from all CAFOs in a focus watershed, EPA will: 

(i) Conduct outreach in the focus watershed regarding the need for CAFOs to submit the 

information specified in paragraph (k)(4) of this section for a minimum of [30] days.

(ii) Provide notice to the CAFOs of the need to submit information and the timing for 

such request by notice in the Federal Register and other appropriate means in the focus 

watershed. 

(4) Information to be submitted to the Administrator. The owner or operator of a CAFO 

located in a focus watershed identified by EPA as provided in paragraph (k)(2) of this 

section must provide the following information to the Administrator, if so notified in 

accordance with paragraph (k)(3):

(i) The legal name of the owner of the CAFO or an authorized representative, and their

mailing address, email address (if available) and primary telephone number. (An 

authorized representative must be an individual who in involved with the management or 

representation of the CAFO. The authorized representative must be located within 

reasonable proximity to the CAFO, and must be authorized and sufficiently informed to 

respond to inquiries from EPA on behalf of the CAFO);

(ii) The location of the CAFO’s production area identified by the latitude and longitude; 

or by the street address;

(iii) If the owner or operator has NPDES permit coverage as of [the effective date of 

promulgation], the date of issuance of coverage under the NPDES permit, and the permit 

number. If the owner or operator has submitted an NPDES permit application or a Notice 
of Intent as of [the effective date of promulgation] but has not received coverage, the date 

the owner or operator submitted the NPDES permit application or Notice of Intent;

(iv) For the previous 12-month period, identification of each animal type confined either 

in open confinement including partially covered areas, or housed totally under roof at the 

CAFO for 45 days or more, and the maximum number of each animal type confined at 

the CAFO for 45 days or more; and

(v) Where the owner or operator land applies manure, litter and process wastewater, the 

total number of acres under the control of the owner or operator available for land 

application. 

(5) Submission process for CAFOs in focus watersheds. The owner or operator of a 

CAFO located in a final focus watershed, if so notified by EPA, must submit the 

information specified in paragraph (k)(4) of this section using the survey form provided 

by the Administrator. The owner or operator of a CAFO located in a focus watershed 

and so notified must submit the survey form to the Administrator, either by certified mail, 

or electronically, through the Agency’s electronic information management system by the 

deadline specified in paragraph (k)(5) of this section. If submitting the survey form by

certified mail, the owner or operator of a CAFO located in a focus watershed must 

indicate on the survey form that an electronic submission waiver applies and provide 

justification as to why electronic submission would cause an undue burden or expense. 

(6) Deadline for submissions by owners or operators of CAFOs in focus watersheds. The 

owner or operator of a CAFO located in a focus watershed and so notified must submit 

the information required by paragraph(k)(4) of this section in accordance with paragraph 
(k)(5) of this section [within 90 days] after EPA notifies CAFOs of such obligation in 

accordance with paragraph (k)(3).