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UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MINNESOTA

American Farm Bureau Federation, 

National Pork Producers Council

Plaintiffs,

v.

U.S. Environmental Protection Agency

Gina McCarthy, 

Administrator of the U.S. Environmental 

Protection Agency,

Defendants, 

and

Food & Water Watch, Environmental 

Integrity Project, and Iowa Citizens for

Community Improvement,

Intervenors.

Case No. 13-CV-1751 (ADM/TNL)

DECLARATION OF DEBORAH NAGLE

I, Deborah G. Nagle, declare under penalty of perjury that the following statements are true and 

correct to the best of my knowledge and belief:

1. I am Director of the Water Permits Division (“WPD”) within the Office of Water’s

Office of Wastewater Management of the U.S. Environmental Protection Agency (“EPA” or 

“Agency”). I have been in this position since July 3, 2011, and served as Acting Director for the 

WPD seven months prior to that date. I have worked at the EPA for approximately twenty-five

years. As the Director of the WPD, I direct the EPA Division responsible for implementing the 
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National Pollutant Discharge Elimination System (“NPDES”) permit program under the Clean 

Water Act (“CWA” or “Act”). The WPD provides oversight of authorized state and territorial 

NPDES programs and technical assistance to support EPA regional water programs. The WPD 

is also responsible for developing national policy, regulations, and technical implementation 

guidance to effectively implement the NPDES program, which includes concentrated animal 

feeding operations (“CAFOs”). My responsibilities as the Director of the WPD include, among 

other things, oversight of program staff responding to Freedom of Information Act (“FOIA”) 

requests.

2. The purpose of this Declaration is to describe the process the EPA followed in 

responding to two FOIA requests from (1) Earthjustice (EPA-HQ-2012-001337) and (2) the Pew 

Charitable Trusts and the Natural Resources Defense Council (“NRDC”) (EPA-HQ-2013-

001516), and to provide an explanation of EPA’s decision to withhold and release certain 

information responsive to the two requests. I will also provide a brief background on the main 

subject of the FOIA requests: records related to EPA’s Proposed NPDES CAFO Reporting Rule, 

76 Fed. Reg. 65,431 (October 21, 2011) (“Proposed CAFO Reporting Rule”); subsequent 

Withdrawal of the Proposed NPDES CAFO Reporting Rule, 77 Fed. Reg. 42,679 (July 20, 2012)

(“Withdrawal”); and EPA’s effort to collect and evaluate CAFO information that would inform 

the Agency’s efforts to more effectively implement the CWA.

3. My statements in this Declaration are based on information provided to me by

employees under my supervision, information obtained by me in performance of my official duties, 

and my personal examination of withheld documents. I am personally familiar with the two 

original FOIA requests and seven subsequent FOIA requests, which are at issue in this civil action. 

I submit this declaration to serve as the administrative record in the above-captioned lawsuit.
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I. BACKGROUND: RELEVANT STATUTORY REQUIREMENTS UNDER THE 

CLEAN WATER ACT

4. The Clean Water Act. The CWA establishes a comprehensive program designed to 

“restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.” 33 

U.S.C. § 1251(a). Section 501 authorizes the EPA Administrator to promulgate rules to carry

out the Administrator’s functions under the CWA. 33 U.S.C. § 1361.

5. Section 101(e) of the CWA requires that "[p]ublic participation in the development, 

revision, and enforcement of any regulation, standard, effluent limitation, plan, or program 

established by the Administrator or any State under this Act shall be provided for, encouraged, 

and assisted by the Administrator and the States." 33 U.S.C. § 1251(e). 

6. Section 104 of the CWA requires the EPA to, “in cooperation with other Federal, 

State, and local agencies, conduct and promote ... surveys, and studies” relating to the causes 

and prevention of pollution, and authorizes the Agency to “collect and make available, through 

publication and other appropriate means, the results of” such surveys and studies. 33 U.S.C. §§ 

1254(a)(1), (b)(1). Section 104 specifically charges the Agency with conducting “public 

investigations concerning the pollution of any navigable waterbody,” and requires it to “report on 

the results of such investigations.” Id. at § 1254(a)(3). The EPA is also authorized to “collect 

and disseminate” information about “pollution and the prevention, reduction, and elimination 

thereof.” Id. at § 1254(b)(6).

7. Section 301(a) of the CWA prohibits the discharge of pollutants from a “point source” 

to waters of the United States, except as authorized under the Act. 33 U.S.C. § 1311(a). The 

term “CAFO” is specifically included in the definition of “point source.” 33 U.S.C. § 1362(14). 
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Discharges may be authorized through a NPDES permit. 33 U.S.C. § 1342. NPDES permits 

authorize and regulate the discharge of pollutants from point sources to waters of the United 

States. Id.

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

operator of any point source” to:

carry out the objective 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 this chapter; 

(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 this section; 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). In furtherance of these stated objectives, the EPA may require owners or 

operators of point sources to establish and maintain records; make reports; install, use, and 

maintain monitoring equipment; sample effluents; and provide such other information as the EPA 

may reasonably require to carry out the objectives of the Act. 33 U.S.C. § 1318(a)(4)(A). Any

records, reports, or information obtained under section 308 of the CWA “shall be available to the 

public,” except upon a satisfactory showing that the information (other than effluent data) is 

entitled to protection as trade secrets in accordance with the Trade Secrets Act, 18 U.S.C. § 1905.

9. Section 402 of the CWA requires that each NPDES permit application and each 

permit issued be available to the public and be available upon request for the purpose of 

reproduction. 33 U.S.C. §§ 1342(b)(3), (j). The NPDES regulations implementing this statutory

public notice requirement outline detailed public availability requirements for individual permit 

applications and public notice and comment requirements for notices of intent to discharge under 

a general permit. 40 C.F.R. §§ 122.23(h), 124.10-17. The permitting authority must make 

available an individual permit application and circulate a notice of intent to discharge under a 
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general permit as well as a draft nutrient management plan for public comment. 40 C.F.R. §§ 

122.23(h), 124.10. The permitting authority must respond to significant comments received and 

may revise the permit or require the CAFO owner or operator to revise the nutrient management 

plan in light of public comments. 40 C.F.R. §§ 122.23(h); see also 124.14, 124.17. The 

permitting authority must then inform the public whether general permit coverage is granted and 

of the terms of the nutrient management plans incorporated as terms and conditions of the 

permit. 40 C.F.R. §§ 122.23(h); see also 124.15.

10. All NPDES permit applications for CAFOs must include the following: (1) the name 

of the owner or operator; (2) facility location and mailing address; (3) latitude and longitude of 

the production area (entrance of the production area); (4) a topographic map of the geographic 

area in which the CAFO is located showing the specific location of production area; (5) specific 

information about the number and type of animals, whether in open confinement or housed under 

roof; (6) the type of containment and storage and total capacity for manure, litter, or process 

water; (7) the total number of acres under control of the applicant available for land application 

of manure, litter, or process wastewater; (8) estimated amounts of manure, litter, and process 

wastewater generated per year; (9) estimated amounts of manure, litter, and process wastewater 

transferred to another person per year; and (10) a nutrient management plan that at a minimum 

satisfies requirements in 40 CFR § 122.42(e). 40 C.F.R. §§ 122.21(i), 122.23(d). 

11. The CWA provides that states, tribes, and territories may be authorized to administer 

the NPDES program. 33 U.S.C. § 1342(a), (b); 40 C.F.R. Part 123. States, tribes, or territories 

authorized to administer the permit program must have adequate legal authority to implement the 

CAFO permit application provisions listed in Paragraphs 9 and 10, above, and must administer 

the program in conformance with the requirements of Part 123, except that pursuant to section 
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510 of the CWA, states, tribes, or territories may impose more stringent requirements. 33 U.S.C. 

§ 1370, 40 C.F.R. §§ 123.25(a)(4) (requiring that state programs have legal authority to 

implement § 122.21(i)); 123.25(a)(11) (requiring that states choosing to issue general permits 

have legal authority to implement § 122.28); 123.25(a)(13) (requiring that state programs have 

legal authority to implement § 122.42); 40 C.F.R. § 123.1(i) (not precluding more stringent or 

more extensive requirements than required under Part 123). Forty-six states and the Virgin 

Islands are authorized to implement the NPDES permitting program. 

12. The regulations implementing the CWA state permit program requirements provide 

that authorized states must have the ability and appropriate procedures in place to maintain a 

comprehensive inventory of all sources subject to NPDES permitting requirements. 40 C.F.R. § 

123.26. Also, such states must have a program capable of making comprehensive surveys of all 

facilities and activities subject to their authority to identify persons subject to regulation. Id. 

Any information obtained or used in the administration of a state program is available to the EPA 

upon request without restriction. 40 C.F.R. § 123.41(a); see also 40 C.F.R. § 123.26(a)(1). If the 

EPA obtains information from a state that is not claimed to be confidential, the EPA may make 

that information available to the public without further notice. 40 C.F.R. § 123.41(a); see also 40 

C.F.R. § 122.7(b) (stating that claims of confidentiality for any information on permit 

applications, or effluent data, shall be denied).

II. BACKGROUND: AGRICULTURAL OPERATIONS IN THE UNITED STATES

13. According to EPA’s most recent National Water Quality Inventory, agriculture is the 

leading probable source of impairments in the nation’s assessed rivers and streams. See National 

Summary of Assessed Waters Report, available at:
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http://ofmpub.epa.gov/waters10/attains_nation_cy.control. Livestock manure, whether from 

poultry, cattle, or swine, contains substantial amounts of nutrients (nitrogen, phosphorus, and 

potassium), pathogens, and heavy metals, and smaller amounts of other elements and 

pharmaceuticals, which can harm aquatic ecosystems as well as human health. 76 Fed. Reg. at 

65,433-34. When the EPA revised its NPDES CAFO regulations in 2003, the Agency estimated 

that animal feeding operations (“AFOs”) annually produce more than 500 million tons of animal 

manure and that the revised regulations would yield incremental pollutant reductions annually of 

2.1 billion pounds of sediment, 155 million pounds of nutrients, and one million pounds of metals. 

68 Fed. Reg. at 7,176, 7,224 (Feb. 12, 2003).

14. The United States has approximately one million farms with livestock. See U.S. 

Department of Agriculture, 2007 Agricultural Census, available at

http://www.nrcs.usda.gov/wps/portal/nrcs/detail/national/technical/nra/dma/?&cid=nrcs143_014

121. Approximately 18,000 of these operations are CAFOs – operations that confine animals for 

at least forty-five days per year, meet certain numeric thresholds, or other criteria. See 40 C.F.R. 

§ 122.23(b)(2) and EPA NPDES CAFO Program Implementation Status Report, available at

http://www.epa.gov/npdes/pubs/afo_tracksum_endyear2012.pdf. On a 1,000 pound live weight 

basis, an animal produced for livestock or poultry production generates more waste than a 

human. See U.S. EPA Risk Management Evaluation for Concentrated Animal Feeding 

Operations; EPA-600-R-04-042 (May 2004) at 9, available at

http://nepis.epa.gov/Adobe/PDF/901V0100.pdf. The waste generated from a dairy CAFO with 

1,000 animal units is equivalent to the waste generated by a city of 164,500 people. Id. In its 

2008 report on CAFOs, the U.S. Government Accountability Office (“GAO”) estimated that a 

swine operation with 800,000 hogs would generate “more than 1.6 million tons of manure 
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annually—more than one and a half times the sanitary waste produced by the about 1.5 million 

residents of Philadelphia, Pennsylvania, in one year.” U.S. Gov’t Accountability Office, 

Concentrated Animal Feeding Operations—EPA Needs More Information and a Clearly Defined 

Strategy to Protect Air and Water Quality, GAO-08-977 (2008) at 5, available at 

http://www.gao.gov/new.items/d08944.pdf.

III. BACKGROUND: EPA’S EFFORTS TO COLLECT INFORMATION ABOUT 

CAFOs.

15. 2008 GAO CAFO report. In September 2008, the GAO issued a report to 

congressional requesters, recommending that the 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.” U.S. Gov’t Accountability Office, Concentrated Animal Feeding 

Operations—EPA Needs More Information and a Clearly Defined Strategy to Protect Air and 

Water Quality, GAO-08-977 5 (2008) at 48, available at http://www.gao.gov/products/GAO-08-

944. In the report, the GAO reviewed EPA’s information on permitted CAFOs and determined 

that the information obtained from state agencies “are inconsistent and inaccurate and do not 

provide [the] EPA with reliable information it needs to identify and inspect permitted CAFOs 

nationwide.” Id. at 17. In response to GAO’s recommendations, the EPA stated that it was 

developing proposed national standards for NPDES information that authorized states would 

provide to the EPA, which might include obligations for authorized states to provide information 

on permitted CAFOs as well as facilities that are required to have permits but do not. Id. at 76-

77.
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16. 2008 revisions to the CAFO NPDES permit regulations, litigation, and settlement. 

In 2008, the EPA revised its CAFO NPDES permit regulations in response to a decision of the

U.S. Court of Appeals for the Second Circuit, Waterkeeper Alliance et al. v. EPA, 399 F.3d 486 

(2d Cir. 2005). 73 Fed. Reg. 70,418 (Nov. 20, 2008). Changes included requiring only those 

CAFOs that discharge or propose to discharge to obtain a NPDES permit. Id. Both 

environmental and industry organizations filed petitions for review of the 2008 rule, which were 

consolidated in the U.S. Court of Appeals for the Fifth Circuit. See Nat’l Pork Producers 

Council v. EPA, 635 F.3d 738 (5th Cir. 2011). On May 25, 2010, the EPA signed a Settlement 

Agreement with the environmental petitioners to resolve their claims. Exhibit 1, May 25, 2010, 

Settlement Agreement between the EPA and Environment Petitioners. In the Settlement 

Agreement, the EPA committed to propose a rule to require all owners or operators of CAFOs, 

whether or not they have NPDES permits, to submit certain information to the EPA, and to take 

final action on the proposed rule by May 25, 2012. Id. at ¶ 2. The Settlement Agreement did not 

commit the EPA to the substance of any final action. Id. at ¶ 7. The Settlement Agreement was 

subsequently amended on May 25, 2011, to extend the deadline for the signature on the proposal 

to October 14, 2011, and the final action date to July 13, 2012. Exhibit 2, May 25, 2011, 

Modification of May 25, 2010 Settlement Agreement.

17. On March 15, 2011, the Fifth Circuit Court of Appeals vacated the requirement in 

EPA’s 2008 CAFO NPDES permit regulations that CAFOs “proposing” to discharge obtain 

NPDES permits and held that CAFOs are not liable, under the enforcement provision of the Act, 

33 U.S.C. § 1319, for failing to apply for NPDES permits as a distinct violation from discharging 

without a permit. See Nat’l Pork Producers Council v. EPA, 635 F.3d at 756. The Fifth Circuit 
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held that there must be an “actual discharge to trigger the CWA requirement to obtain a permit.” 

Id. at 751. 

18. The Proposed NPDES CAFO Reporting Rule and its Withdrawal. On October 21, 

2011, the EPA proposed to collect certain information about CAFOs in the Proposed CAFO 

Reporting Rule. The EPA proposed that it would collect the following five types of information: 

(1) contact information for the CAFO owner or authorized representative; (2) location of the 

CAFO’s production area identified by the latitude and longitude or by the street address; (3) 

whether the CAFO has applied for and/or received coverage under an NPDES permit; (4) for the 

previous 12-month period, identification of each animal type confined and the maximum number 

of each animal type confined at the CAFO; and (5) at CAFOs that land apply manure, litter, and 

process wastewater, the total number of acres under the control of the owner or operator 

available for land application. 76 Fed. Reg. at 65,437. 

19. The Proposed CAFO Reporting Rule intended to improve and restore water quality 

by collecting facility-specific information so that the EPA could better implement the CWA. Id.

at 65,431. The EPA explained that this Rule would promote transparency and provide a 

comprehensive body of information that would serve as a basis for sound decisionmaking. Id. at 

65,435. Unlike many other regulated industries in the United States, the EPA did not have 

facility-specific information for all CAFOs in the United States. In the proposal, the EPA 

explained that facility location and basic operational characteristics that relate to how and why a 

facility may discharge is essential information needed to carry out its obligations under the 

CWA. Id. at 65,436. The information would assist the EPA in: (1) evaluating the NPDES 

program effectiveness; (2) identifying and permitting CAFOs that discharge; (3) conducting 

education and outreach to promote best management practices; (4) determining potential sources 
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of water quality impairments and taking steps to address those impairments; (5) estimating 

loadings from CAFOs —by facility, watershed, or other geographical area; and (6) targeting 

resources for compliance assistance or enforcement. Id. at 65,436. The EPA stated that 

information gathered would help the EPA 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 United States. Id. It would also directly address the 

GAO’s recommendations for obtaining adequate information relevant to EPA’s CAFO program. 

See ¶ 15 of this Declaration. 

20. The EPA received approximately 1,403 comment letters on the Proposed CAFO 

Reporting Rule from states, state associations, industry organizations, environmental groups, and 

individuals, all of which are publicly available at www.regulations.gov, in Docket EPA-HQOW-2011-0188. Industry commenters opposed the Proposed Rule by arguing, among other 

things, that much of the information sought had already been submitted to the states and the 

EPA, and the information could be collected through means other than the Proposed Rule. 

Exhibit 3, Letter from American Farm Bureau Federation and National Pork Producers Council

to the EPA, January 19, 2012. States commented that state permitting authorities, or other state 

agencies, have information about CAFOs and that much of the information sought is publicly

available. Exhibit 4, Letter from the South Dakota Department of Agriculture and South Dakota 

Department of Environment and Natural Resources, December 22, 2011; and Letter from the

New York Department of Environmental Conservation and Department of Agriculture, January

19, 2012. Some states also commented that they had additional CAFO information beyond the 

five types of information proposed to be collected, including information from permit 

applications and information about animal feeding operations (“AFOs”) that are not defined as 
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CAFOs. Exhibit 5, Letter from the Maryland Department of the Environment, January 19, 2012; 

and Letter from the South Carolina Department of Health and Environmental Control, January

13, 2012.

21. The EPA published the Withdrawal of the Proposed CAFO Reporting Rule on July

20, 2012. 77 Fed. Reg. at 42,679, attached as Exhibit 6. In explaining the reasons for the 

Withdrawal, the EPA stated that, where appropriate, it intended to collect CAFO information 

using existing sources of information, including state NPDES programs and other programs at 

the federal, state, and local level. Id. At the time of the Withdrawal, the EPA decided that it was 

more appropriate to obtain CAFO information by working with federal, state, and local partners 

instead of requiring CAFO information to be submitted pursuant to a rule. Id. at 42,681. 

22. In the Withdrawal notice, the EPA explained that it could obtain facility-specific 

information from authorized state permitting agencies, often on websites that the permitting 

authorities maintain. Prior to the Withdrawal, the EPA had found facility-specific information 

for over 7,000 operations on states’ websites. Id. The EPA explained that beyond what was 

found from these websites, information exists in state NPDES permitting records, and states 

would share that information with the EPA. Id. at 42,681-82. Under EPA regulations, authorized 

states are required to allow the EPA to routinely review state records, reports, and files relevant 

to the administration and enforcement of the approved program. 40 C.F.R. §§ 123.41(a), 123.43. 

23. The Memorandum of Understanding (“MOU”) Between the EPA and the 

Association of the Clean Water Administrators (“ACWA”). In July 2012, the EPA established a 

MOU with ACWA, entitled “Memorandum of Understanding Between the U.S. Environmental 

Protection Agency and Association of Clean Water Administrators; Collaborative Efforts to 

Collect and Exchange Information About Concentrated Animal Feeding Operations,” attached as 
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Exhibit 7, to assist the Agency in collecting CAFO information. ACWA is an independent, 

nonpartisan, non-profit corporation of state and interstate water program managers. Pursuant to 

the MOU, ACWA agreed to foster a dialogue between ACWA members and the EPA to 

facilitate the exchange of CAFO information. The collaborative effort between the EPA and 

ACWA focused on assisting the EPA to obtain pertinent information about CAFOs from NPDES 

authorized states on a state-by-state basis. As part of its MOU responsibilities, ACWA helped

the EPA set up telephone calls with state employees. Exhibit 8, November 16, 2012, MOU with 

ACWA: CAFO Information – Implementation Workplan. ACWA did not participate in any of 

the EPA-led telephone calls with states. 

24. EPA’s effort to collect publicly accessible CAFO Information prior to proposing the 

CAFO Reporting Rule. Prior to proposing the CAFO Reporting Rule, the EPA retrieved CAFO 

information directly from its own data systems and websites to determine the amount and type of 

information states already were sharing electronically with the Agency and the amount of 

information the EPA still found appropriate to request in the Proposed CAFO Reporting Rule. 

See 76 Fed. Reg. at 65,431. Review of this information informed EPA’s decision to develop the 

voluntary state submission process and the alternative approach that relies on existing 

information sources in the Proposed CAFO Reporting Rule. Id. at 65,437. The EPA included 

examples of CAFO site-specific information that was publicly available on the Internet in 

Docket EPA-HQ-OW-2011-0188-0010. 

25. The EPA retrieved CAFO information from two national NPDES data systems: the

Integrated Compliance Information System-NPDES (“ICIS-NPDES”) and the Permit 

Compliance System (“PCS”). During the time that the EPA was considering the Proposed 

CAFO Reporting Rule, the majority of states provided information to ICIS-NPDES, but some 
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provided information to PCS.

 (PCS was phased out and replaced by ICIS in December 2012.) 

Much of the information from ICIS-NPDES and PCS was available to the public in a different 

format via Enforcement and Compliance History Online (“ECHO”). ECHO does not provide 

any ICIS-NPDES or PCS information that is categorized as (1) confidential business 

information, (2) related to an ongoing enforcement action, or (3) associated with inspection 

planning. The ECHO website provides publicly available facility information from the previous 

three years, including facility names, locations, permit information, inspections, violations, 

enforcement actions (completed actions only), and penalties. Any member of the public with 

access to the Internet can retrieve information from ECHO. See

http://echo.epa.gov/?redirect=echo. 

27. EPA’s effort to collect publicly accessible CAFO information prior to the 

Withdrawal of the Proposed the CAFO Reporting Rule. After proposing the CAFO Reporting 

Rule, the EPA conducted a preliminary evaluation of information publicly available on the 

Internet from all state permitting authorities, expanding on the effort the Agency had conducted 

prior to issuing the Proposed Rule. EPA’s post-proposal evaluation of available information 

included a review of thirty-seven state permitting authorities’ websites to determine if 

information about CAFOs was publicly accessible. See Exhibit 6, 77 Fed. Reg. at 42,681. The 

EPA summarized the results of this evaluation in a document titled, “CAFO 308 Rule 

Information Search,” which is available in the Proposed CAFO Reporting Rule’s docket, EPAHQ-OW-2011-0188-1435.

28. EPA’s effort to collect publicly accessible CAFO information after the Withdrawal 

of the Proposed CAFO Reporting Rule. In its Withdrawal of the Proposed CAFO Reporting 

Rule, the EPA discussed the MOU it had entered with ACWA and indicated it would collect 
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publicly accessible CAFO data using existing sources of information, such as state NPDES 

authorized programs, as well as state and local governments. See Exhibit 6, 77 Fed. Reg. at 

42,681. By May 2012, the EPA began conducting telephone calls with authorized state CAFO 

permitting agencies to discuss the availability of CAFO information. Prior to each state call, the 

EPA reviewed any CAFO information that was maintained in EPA’s Regional Offices. If the 

EPA Region had CAFO information, it was discussed with the state employee during the 

telephone call. As a result of these Regional discussions, the EPA obtained EPA Region 3’s

information about poultry facilities in the Delmarva Peninsula, which included poultry facilities 

from Delaware, Maryland, and Virginia. EPA Region 3 derived this consolidated list from its 

enforcement activities, such as field investigations and online research of publicly available 

databases. The EPA Region 3 information also contained CAFO information from federal and 

state permits. The EPA also obtained CAFO information pertaining to Illinois, Michigan, and 

Wisconsin from EPA Region 5, which received this information from those state employees as 

part of the Agency’s monitoring and evaluation of states’ implementation of the NPDES 

permitting programs. 

29. To ensure an informed discussion with each state, the EPA shared an agenda with 

each state CAFO permitting agency and requested that a state agency staff person who works in 

permitting as well as a staff person who manages CAFO information participate on the 

conference call. Exhibit 9, Proposed Agenda and Sample EPA Email to State Employees. 

During each conference call, the EPA asked whether the state would share its CAFO information 

with the Agency.

1

 The EPA also inquired whether the information the state was sharing was 

 

1 Although the EPA only asked states for information about CAFOs, some states sent additional information about 

non-CAFO facilities as well (often because the state stored CAFO and non-CAFO information in the same Excel 

spreadsheets.) For the sake of convenience, this document refers to information received from states in response to 

EPA’s requests for CAFO information as “CAFO information.”
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publicly available and, if so, the way in which the public can access the information. In 

requesting this information, the EPA explained to each state employee that any records shared 

with the Agency are subject to the FOIA unless a privilege was asserted, such as the information 

is confidential business information. Id. The EPA did not receive any privilege claims and was 

informed by state employees that all information shared with the Agency was publicly available. 

By January 14, 2013, the EPA had conducted forty-four conference calls with state employees to 

determine what CAFO information was available from each state. As a result of these calls, the 

EPA received CAFO information from twenty-seven states.

2

 

30. After completing the conference calls with the states, the EPA collected publicly

accessible CAFO information from eight states’ websites.3 In addition, the EPA specifically 

searched PCS for facilities in Maine and searched ICIS-NPDES for facilities in New York 

because those states referred the EPA to these data systems for their CAFO information. The 

information the EPA retrieved from the EPA and state websites was available to the public at the 

time the EPA retrieved it. More information pertaining to the data systems and the state websites

is provided in Paragraphs 55-57 of this Declaration. The EPA subsequently compared the CAFO 

information it had received from the states and retrieved from the states’ websites with 

information retrieved from the PCS, ICIS-NPDES, and ECHO searches done prior to 

withdrawing the Proposed CAFO Reporting Rule to identify information gaps. 

 

2 The twenty-seven states that provided CAFO information, as a result of state calls, are Alabama, Arizona, 

California, Colorado, Florida, Georgia, Indiana, Idaho, Iowa, Michigan, Minnesota, Missouri, Montana, Nebraska, 

Nevada, North Carolina, North Dakota, Ohio, Oklahoma, Oregon, Pennsylvania, South Dakota, Tennessee, Utah,

Washington, Wisconsin, and Wyoming. Please note that CAFO information pertaining to Illinois was obtained from 

EPA Region 5, which received the information as part of the response to the petition to withdraw Illinois NPDES 

program. See ¶ 59(d) of this Declaration.

3 The eight states are Alabama, Arkansas, Florida, Louisiana, Maryland, Mississippi, New Jersey, and Texas.
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III. FOIA REQUESTS AND EPA’S RESPONSE

31. Earthjustice FOIA request. Earthjustice submitted a FOIA request (EPA-HQ-2012-

001337), dated September 11, 2012, to the EPA seeking records relating to the Proposed CAFO 

Reporting Rule. Earthjustice’s FOIA request is attached to this Declaration as Exhibit 10. The

FOIA request sought the following six categories of information:

1. All records, including all communications, shared or otherwise maintained between 

EPA and any other government agency (including, but not limited to, the United 

Sates Department of Agriculture and/or the United States Geological Survey) relating 

to the CAFO Reporting Rule and/or the 2012 withdrawal of the CAFO Reporting 

Rule;

2. All records reflecting any communication, written or verbal, between the EPA and 

any private party, corporation or non-profit organization (including, but not limited 

to, the National Pork Producers Council, the American Farm Bureau Federation, the 

National Chicken Council, the U.S. Poultry & Egg Association, the National Milk 

Producer’s Federation) relating to the CAFO Reporting Rule and/or the 2012 

withdrawal of the CAFO Reporting Rule; 

3. All records created or updated since November 28, 2008, relating to EPA’s 

evaluation of information publicly available about CAFOs in the United States[;]

4. All records, including, but not limited to, all communications and records 

identifying, discussing, mentioning, describing, reporting or analyzing the July 2012 

memorandum of understanding (MOU) entitled “Collaborative Efforts to Collect and 

Exchange Information about Concentrated Animal Feeding Operations” entered 

between EPA and the Association of Clean Water Administrators; 

5. All records relating to how EPA will obtain information about CAFOs in states for 

which current site-specific information about CAFOs is not available on the internet, 

including, at a minimum, CAFOs in Maine, Massachusetts, New Hampshire, Rhode 

Island, Vermont, Puerto Rico, U.S. Virgin Islands, West Virginia, Georgia, Illinois, 

Minnesota, Kansas, Nevada, Alaska, Idaho, and Washington;

6. All records relating to and/or identifying existing sources of information about 

CAFOs, including the AFOs themselves, and EPA’s proposed and intended data 

collection process for gathering that information.

32. The Pew Charitable Trusts and NRDC’s FOIA request. The Pew Charitable Trusts 

and NRDC (“Pew-NRDC”) submitted a FOIA request (EPA-HQ-2013-001516), dated October 
18

24, 2012, to the EPA and sought all records relating to EPA’s Withdrawal and information

collection effort. The FOIA request is attached to this Declaration as Exhibit 11. The PewNRDC FOIA request sought the following information:

1. Any records pertaining to the Reporting Rule that are not contained in the public 

docket for the rule that were submitted to EPA by: The American Farm Bureau 

Federation, The National Pork Producers Council, The National Cattlemen’s Beef 

Association, The United Egg Producers, The U.S. Poultry & Egg Association, The 

National Council of Farmer Cooperatives, The National Milk Producers Federation, 

The National Chicken Council, the National Turkey Federation, The National Corn 

Growers Association, or any other agricultural trade association.

2. Any records providing factual information concerning the completeness, accuracy, 

and public accessibility of states’ CAFO information in the following areas:

a. The legal name of the owner of the CAFO or an authorized representative, 

their mailing address, email address, and primary telephone number,

b. The legal name and address of the owner/operator, if the name and address of 

an authorized representative is provided above,

c. The location of the CAFO’s production area, identified by latitude and 

longitude and street address,

d. If the owner or operator has NPDES permit coverage, the date of issuance of 

coverage under the NPDES permit, and the permit number,

e. 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 CAFOs for 45 days or more, and the maximum number of 

each animal type confined at the CAFO for 45 days or more,

f. 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, 

g. If the CAFO is a contract operation, the name and address of the integrator,

h. Type and capacity of manure storage used at the CAFO, 

i. Quantity of manure, process wastewater, and litter generated annually by the 

CAFO, 

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

for land application,

k. If the CAFO land applies, whether it employs nutrient management practices 

and keeps records on site consistent with 40 CFR 122.23(e),

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

wastewater, and

m. Whether the CAFO transfers manure off site, and if so, the quantity

transferred to recipient(s) of transferred manure.

3. Any records that provide any of items 2.a-m, above, for any CAFO in the U.S.
19

33. EPA’s initial response to the Earthjustice and Pew-NRDC FOIA requests. The EPA 

provided an interim, partial response to Earthjustice’s FOIA request on October 16, 2012. 

Exhibit 12, October 16, 2012 Interim Response to Earthjustice’s FOIA request. On December 

18, 2012, the EPA provided an interim, partial response to the Pew-NRDC FOIA request. 

Exhibit 13, December 18, 2012 Interim Response to Pew-NRDC’s FOIA Request. Since both 

FOIA requests sought similar records, the EPA provided the same sixty-one records in these 

interim, partial responses, which comprised information pertaining to the Proposed CAFO 

Reporting Rule and its Withdrawal that was not in the public docket. On January 25, 2013, PewNRDC denied EPA’s request for an additional extension to respond to their October 24, 2012 

FOIA request. Exhibit 14, January 25, 2013, Pew-NRDC Denial of Request for Extension.

34. On January 31 and February 4, 2013, the EPA issued its initial response to 

Earthjustice and the Pew-NRDC FOIA requests.

4

Exhibit 15, January 31 and February 4, 2013, 

Initial Response. In the initial response letters, the EPA withheld 474 records in full under FOIA 

Exemption 5’s deliberative process and attorney-client privileges. 5 U.S.C. § 552(b)(5). The 

EPA also partially granted the FOIA requests by providing the requesters a compact disk 

containing, among other things, CAFO information, the information the Agency received 

directly from the twenty states (listed below in (d) of Paragraph 35), as well as other CAFO

information collected from states’ public websites, EPA Regional Offices, and EPA’s data

systems.

 

4 EPA’s January 31 and February 4, 2013 FOIA responses were actually titled “partial” responses because those 

responses did not include certain email and other records related to the Withdrawal of the Proposed CAFO 

Reporting Rule, responses for which the requesters had granted extensions. Because these emails and other records 

related to the Withdrawal are not at issue in this case, for convenience’s sake, this document simply refers to the 

January 31 and February 4, 2013 responses as “initial responses.” 
20

35. CAFO information released in the Agency’s “initial response.” In its January 31 

and February 4 “initial response,” the EPA released the following information, attached as 

Exhibit 16, based on the understanding that this information was publicly available: 

a. Information collected from eight states’ websites5(Exhibit 16A): Alabama, 

Arkansas, Florida, Louisiana, Maryland, Mississippi, New Jersey, and Texas. 

b. Information collected from EPA data systems, ICIS-NPDES and PCS (Exhibit 16B): 

New York, Maine, and other consolidated spreadsheets. 

c. Information collected from EPA Regional Offices (Exhibit 16C): EPA Region 3’s

consolidated spreadsheet of poultry facilities from Delaware, Maryland, and Virginia 

and Region 5’s consolidated spreadsheet of facilities in Illinois, Michigan, and 

Wisconsin.6

d. Information collected from twenty states (Exhibit 16D): Alabama, Arizona, 

Colorado, Florida, Georgia, Indiana, Iowa, Michigan, Nebraska, North Carolina, 

North Dakota, Ohio, Oregon, Pennsylvania, South Dakota, Tennessee, Utah, 

Wisconsin, Wyoming, and Montana. 

36. The EPA gives notice of its FOIA responses to Agriculture Stakeholders. As a 

courtesy, Ms. Ellen Gilinsky, Senior Policy Advisor in the EPA Office of Water, transmitted an 

email on February 11, 2013, to some Agriculture Stakeholders, informing them that the EPA had 

responded to the Earthjustice and Pew-NRDC FOIA requests by releasing CAFO information 

that was publicly available. Exhibit 17, February 11, 2013 EPA Email to Agricultural 

Stakeholders. Plaintiffs’ representatives were included in the distribution list of this email. The 

 

5 The EPA received Alabama and Florida CAFO information from state employees, as well as obtained information 

directly from the state website.

6

In addition to receiving CAFO information from Region 5, the EPA also received CAFO information directly from 

the state employees of Michigan and Wisconsin.
21

EPA also held meetings with agricultural stakeholders in February 2013 to discuss the FOIA 

responses. 

37. February 25, 2013 response from the Agriculture Stakeholders. The Agriculture 

Stakeholders7responded to EPA’s FOIA responses in a letter dated February 25, 2013, attached 

as Exhibit 18. In this letter, the Agriculture Stakeholders expressed concern over the release of 

CAFO information. They stated that the release included information on “livestock and poultry

farms and ranches of all sizes, from large CAFOs to the smallest of farms, many of which are 

maintained in state databases solely under state laws.” Id. at 1. The Agricultural Stakeholders

also stated that the farmers and ranchers live in close proximity to their animals. The 

Agricultural Stakeholders objected “to the release of [CAFO information] for possible use by

groups who oppose our members’ businesses and way of life for reasons largely, if not entirely,

unrelated to the honorable goals and objectives of the [CWA].” Id. at 1. Finally, the Agriculture 

Stakeholders expressed privacy and security concerns regarding the release of the CAFO 

information. Id. at 2.

38. The EPA responds to the Agriculture Stakeholders’ February 25 letter. On February

28, 2013, Ms. Nancy Stoner, Acting Assistant Administrator of the EPA Office of Water, sent a 

letter responding to the Agriculture Stakeholders, attached as Exhibit 19. The EPA 

acknowledged the Agriculture Stakeholders’ concerns and committed to reviewing the issues 

raised in the February 25 letter. In this response, the EPA provided background context on the 

information collection efforts by explaining that it was EPA’s understanding based on EPA’s 

conversations with the states and EPA’s regional staff that the information received, and 

 

7 American Farm Bureau Federation, National Cattlemen’s Beef Association, National Council of Farmer 

Cooperatives, National Chicken Council, National Pork Producers Council, National Turkey Federation, United Egg 

Producers, and US Poultry and Egg Association.
22

subsequently released, was all publicly available, either through a publicly accessible database or 

through a public records request to each state. Because of this understanding, all CAFO 

information included in the FOIA response was released in the same format and content in which 

the EPA received it. Nonetheless, prompted by the Agricultural Stakeholders’ concerns, the 

EPA informed the Agriculture Stakeholders that it would investigate whether the FOIA releases 

contained additional information that was not readily available to the public from states or other 

sources and that raised privacy concerns under the FOIA. Id. As the Agency investigated this 

matter, the EPA asked the FOIA requesters to agree to refrain from further dissemination of 

information in the FOIA responses, and the requesters agreed. The EPA also provided the 

Agriculture Stakeholders copies of the Agency’s initial response to the Earthjustice and PewNRDC FOIA requests.

39. The Agriculture Stakeholder’s response to EPA’s February 28 letter. On March 22,

2013, the Agriculture Stakeholders responded to EPA’s February 28 letter, attached as Exhibit 20. 

In their letter, the Agriculture Stakeholders asserted that EPA’s actions were inconsistent with the 

Agency’s privacy policies and its obligations under the FOIA and the Privacy Act of 1974. Id. at 

1. Specifically, the Agriculture Stakeholders asserted that the initial response violated the 

Agency’s FOIA and Privacy Act policies, the EPA had failed to apply the balancing test required 

by the FOIA Exemption 6, and the released CAFO information was subject to additional protection 

under the Privacy Act. Id. at 3-5.

40. The Agriculture Stakeholders concluded their response by requesting the Agency

take the following steps: (1) acknowledge that personal information in the FOIA release violated 

the FOIA, Privacy Act, and related policies; (2) agree that personal information in the releases 

would not be posted on EPA’s website or otherwise disseminated; (3) release to the Agriculture 
23

Stakeholders any and all records related to the Agency’s understanding that the states’ CAFO 

information was indeed publicly available; (4) assure that the Agency will not release similar 

personal information in response to present or future FOIA requests; and (5) commit that 

whenever the Agency receives a FOIA request that may implicate personal information of 

farmers, the relevant Agriculture Stakeholder would be allowed to review the records and 

determine whether the records should be withheld, and if the Agency determines the information 

should be released, the Agriculture Stakeholder would be given an opportunity to object to the 

release before the EPA responds to the request. Id. at 6.

41. The EPA conducts an investigation on the initial release. As stated in the EPA 

February 28 letter, in response to concerns raised by the Agriculture Stakeholders, the EPA 

initiated its investigation as to whether the initial FOIA release contained information that was 

not publicly available from states or other sources and that raised a privacy interest under the 

FOIA. The EPA reviewed all data elements in the CAFO information in order to understand the 

content of the CAFO information. After this review, the EPA organized the CAFO information

into four categories: 

a. Group 1: CAFO information available to the public on an EPA website (ICISNPDES and PCS information as provided through ECHO) or a state website;

b. Group 2: CAFO information subject to mandatory disclosure requirements under 

federal or state law; 

c. Group 3: CAFO information that does not implicate a “substantial” privacy interest; 

and

d. Group 4: Remaining information. 
24

With respect to Group 1 information, the EPA confirmed that the CAFO information collected 

from the eight states’ websites was still publicly available. In addition, the EPA confirmed that 

CAFO information from five other states were also publicly available on those states’ websites. 

For Group 2 information, the EPA identified all information subject to NPDES mandatory

disclosure requirements or similar disclosure requirements under state law. For Group 3

information, the EPA reviewed any remaining data elements that did not implicate a 

“substantial” privacy interest. Examples of CAFO information in this category include dates or 

types of inspections conducted, permit status, and license reference numbers or other 

identification numbers. Finally, Group Four included all of the remaining CAFO information, 

which pertained to ten states.8 EPA’s treatment of this information is described in detail in 

Paragraphs 54-59 of this Declaration.

42. EPA’s amended response to the FOIA requesters. On April 4, 2013, the EPA 

provided the FOIA requesters, Earthjustice and Pew-NRDC, an amended response to their FOIA 

requests, attached as Exhibit 21, April 4, 2013, Amended Response. The Agency explained that 

following the concerns raised by the initial response, the Agency conducted a comprehensive 

review of the material released to determine whether the state-provided information was, as the 

EPA understood, all publicly available. After completing this review, the EPA stated that the 

Agency released all of the CAFO information pertaining to nineteen states9because that 

information, as well as other April 4 released information, was either: (1) available to the public 

 

8 The ten states are Arizona, Colorado, Georgia, Illinois, Indiana, Michigan, Montana, Nebraska, Ohio and Utah.

9 The nineteen states are Alabama, Arkansas, Florida, Iowa, Louisiana, Maryland, Maine, Mississippi, North 

Carolina, North Dakota, New Jersey, New York, Oregon, Pennsylvania, South Dakota, Tennessee, Texas, 

Wisconsin, and Wyoming. The amended April 4 response also released the other documents that were included in 

the January 31 and February 4 responses, including the consolidated spreadsheets of CAFO information from EPA’s 

ICIS-NPDES and PCS data systems, information the EPA collected from eight states’ websites, and consolidated 

spreadsheets from Region 3 and 5. Please note that in Footnote 1 of the April 4 EPA letter to the FOIA requesters

and Agricultural Stakeholders, Missouri was included as one of the twenty-nine states for which the EPA released 

information. Mississippi should have been included in Footnote 1 instead of Missouri.
25

on the EPA or a state website, (2) subject to mandatory disclosure under federal or state law, or 

(3) did not contain information that implicates a “substantial” privacy interest. The EPA 

explained that because the CAFO information pertaining to the nineteen states is in the public 

domain or must be publicly noticed and/or available, there is no “substantial” privacy interest in 

the information, and therefore, Exemption 6 did not apply. The EPA determined, however, that a 

subset of information received from ten states10 was subject to Exemption 6’s protections; thus, 

the Agency withheld that information in its amended response. The information that the EPA 

withheld from these ten states, pursuant to Exemption 6, comprises the names and addresses of 

individuals (as opposed to business or facility names and locations, though facility names that 

include the individuals’ names were also redacted), telephone numbers, email addresses, and 

notations that relate to personal matters. Id. at 3. 

43. The Agency also continued to withhold 474 records under Exemption 5’s 

deliberative process and attorney client privileges. Id. The withheld Exemption 5 information is 

not at issue in this lawsuit. At the end of the April 4 response, the Agency asked the requesters

to return the initial response and destroy any copies of it. The Agency received returned copies 

from all of the FOIA requesters. See Exhibit 22, April 9, 2013, Letter from NRDC to the EPA 

Returning Compact Disc. 

44. The EPA notifies the Agriculture Stakeholders of the Agency’s investigation findings. 

On April 4, 2013, the EPA sent a letter informing the Agriculture Stakeholders of its April 4 

amended response to the two FOIA requests, attached as Exhibit 23, and addressing the concerns 

raised in the Stakeholders’ March 22 letter. In the April 4 letter, the EPA explained that it 

determined that CAFO information pertaining to nineteen states, as well as other information (see 

Paragraph 42, footnote 9), was either (1) available to the public on the EPA or a state website, (2) 

 

10 The ten states are Arizona, Colorado, Georgia, Illinois, Indiana, Michigan, Montana, Nebraska, Ohio, and Utah.
26

subject to mandatory disclosure under state or federal law, or (3) did not contain information that 

implicates a “substantial” privacy interest. Accordingly, this CAFO information was not subject to 

withholding under the privacy protections of FOIA Exemption 6. Id. at 1. Specifically, the EPA 

explained to the Agriculture Stakeholders that the EPA identified six states where the released 

information was identical in content and format to the CAFO information on a particular state 

website.

11

 Id. at 2. The Agency also released CAFO information pertaining to seven states where 

the information was almost identical in form and content to the information available on a state

website.12 The EPA retrieved information from two states directly from EPA’s web-based data

systems.

13

 Finally, the Agency determined that CAFO information pertaining to four states was 

available through mandatory disclosure requirements of the NPDES regulations or similar state 

laws.14 Id. at 2.

45. The April 4 letter further explained that a subset of the CAFO information received 

from ten states15 was subject to Exemption 6, and therefore, the Agency amended its FOIA 

response to redact the exempted information. The EPA informed the Agriculture Stakeholders 

that it concluded that a subset of state-provided information implicates a “substantial” privacy

interest that outweighed the public interest of disclosure; the Agency thus withheld this 

information under FOIA Exemption 6. Id. The EPA withheld specific data elements for a subset 

 

11 The six states are Alabama*, Arkansas*, Maryland*, Mississippi*, North Carolina, and Texas*. (* indicates that 

the EPA collected the CAFO information directly from the state’s website. See ¶ 35(a) of this Declaration.)

12 Florida*, Iowa, Louisiana*, New Jersey*, Pennsylvania, Tennessee, and Wisconsin. (* indicates that the EPA 

collected the CAFO information directly from the state’s website. See ¶ 35(a) of this Declaration.) Although some 

states’ CAFO information was collected directly from those states’ websites, the EPA program office manipulated 

the information subsequent to its retrieval, which caused minor differences in form and content in the released 

information. 

13 The two states are New York and Maine, as well as other consolidated spreadsheets derived from the ICISNPDES and PCS data systems. 

14 The four states are Oregon, South Dakota, North Dakota, and Wyoming. The April 4 letter to the Agricultural 

Stakeholders indicated that the released information for North Dakota and Wyoming included a few additional items 

beyond information that was available through the disclosure requirements, but this information did not raise a 

“substantial” privacy interest. Thus, the EPA released the additional items.

15 The ten states are Arizona, Colorado, Georgia, Indiana, Illinois, Michigan, Montana, Nebraska, Ohio, and Utah.
27

of facilities when these data elements were not required to be publicly disclosed as part of the 

state or federal permitting process or were not available on a public website. The specific data 

elements are names and addresses of individuals (as opposed to business or facility names and 

locations, though facility names that include individuals’ names were also redacted), as well as 

telephone numbers, email addresses, and notations unrelated to the operations. Id. at 2. 

46. While concluding that certain CAFO information provided by the states required 

Exemption 6 protection, the EPA also determined that none of the remaining information 

warranted protection under Exemption 6 because the public interest in disclosure outweighed the 

privacy interests. This information included the number of animals, size and location of animal 

feeding operations, and other operational information. The EPA made this determination based 

on the following reasons: (1) the individual’s expectation of privacy was diminished with regard 

to matters in which he or she is acting in a business capacity; and (2) even if there was a 

“substantial” privacy interest for withholding the number of animals, size and location of animal 

feeding operations, and other operational information, that interest is outweighed by the public’s 

interest in disclosing such information because release would “shed light on the agency’s 

performance of its statutory duties.” Id. at 3. The April 4 letter explained that the public has an 

interest in understanding how the Agency and authorized states are implementing the following 

CWA requirements, which address pollution from point sources as well as nonpoint sources: 

CWA sections 101 (presenting the goal of the Act as restoration and maintenance of the physical, 

chemical and biological integrity of the nation’s waters); 102 (development of comprehensive 

programs for preventing, reducing, or eliminating pollution); 104 (requiring programs that will 

conduct public investigations concerning pollution of any navigable waters and report on the 

results of such investigations); 301 (requiring permits for point source discharges to meet 
28

technology-based and water quality-based effluent limitations); 303(c) (requiring establishment 

of water quality standards); 303(d)(requiring identification of impaired waters and establishment 

of total maximum daily loads for those waters); 303(e)(continuing planning process); 

304(f)(identification and evaluation of nonpoint sources of pollution; processes, procedures, and 

methods to control pollution, including agricultural activities, including runoff from fields and 

crops); 305(b)(requiring bi-annual assessment of the nation’s waters; 319 (nonpoint source 

management programs); 402 (permitting program). Id. at footnote 15; 33 U.S.C. §§ 1251, 1252, 

1254, 1311, 1313(c), 1313(d), 1313(e), 1313(f), 1315(b), 1342.

47. Finally, in its April 4 letter, the EPA explained that it had re-examined the 

requirements set forth in the Privacy Act and the Act’s implementing mechanisms within the 

Agency, including the Agency’s Privacy Policy and Manual, and found that the Agency’s 

amended response met its obligations under the Privacy Act. Id. at 3-4. 

48. EPA’s second amended response to the FOIA requesters. On April 30, 2013, the 

EPA amended its April 4 FOIA response to include additional responsive records that were 

inadvertently omitted and to redact additional information subject to Exemption 6 from CAFO 

information from Montana and Nebraska. The April 30 letter to the FOIA requesters is included 

as Exhibit 24. The second amended response reflected an additional quality assurance review 

that the EPA conducted to ensure that requesters obtain all responsive records, but none that was 

subject to FOIA Exemption 6 protections. In conducting the additional quality assurance review,

the EPA discovered Nebraska’s spreadsheet contained hidden rows of information that should 

have been redacted. The EPA also discovered that in four of the fifty-three worksheets on 

Montana’s spreadsheet, some data elements required further redaction while other CAFO data 

elements were unnecessarily withheld. The Agency made the appropriate modifications to the 
29

two states’ CAFO information and requested that the FOIA requesters return the previously

released compact discs (January 31 or February 4 and April 4) and that any copy of electronic or 

paper files on these compact disks be destroyed. Id. The Agency received returned copies from

NRDC. Exhibit 25, May 6, 2013, NRDC letter to the EPA. 

49. On April 30, 2013, the EPA notified Agriculture Stakeholders, ACWA, state 

permitting authorities, and the Environmental Council of the States to inform them of its second 

amended response to the two FOIA requests, which is included as Exhibit 26. The EPA

informed these entities that CAFO information from Montana and Nebraska was further redacted 

to withhold names of individuals, telephone numbers, personal addresses, and notations about 

personal matters. The EPA also requested that entities who received copies of the responsive 

records return the previously released CDs, destroy all electronic or paper files containing this 

information, and confirm that all copies were destroyed. Id. The only Agriculture Stakeholders 

to voluntarily return the previously released information was the National Cattleman’s Beef 

Association.

50. Additional states’ CAFO information collected but not released. The EPA possesses

additional CAFO information from seven states. The seven states are California, Idaho, 

Minnesota, Missouri, Nevada, Oklahoma, and Washington. In addition, the EPA obtained an 

updated spreadsheet with CAFO information from Pennsylvania. This information was not 

released to the initial FOIA requesters because the information was obtained by the Agency after 

the EPA received the Earthjustice and Pew-NRDC FOIA requests. The EPA has not released 

any of this information to the public. Exhibit 27, Seven Unreleased States’ CAFO Information. 

Each state’s information is attached under the following exhibit name, “Exhibit 27 ([state]).”
30

51. New FOIA requests seeking the same information as the two original requests. Since 

its April 30, 2013 response to the two original FOIA requests, the EPA has received seven new

FOIA requests that sought similar, if not the same, information as the two original FOIA 

requests. Exhibit 28, Subsequent FOIA Requests.

a. EPA-HQ-2013-006737. John Montandon of Dairy Business Communications 

submitted a FOIA request on June 4, 2013, seeking all CAFO information of dairy

producers (owners and operators), which would include the CAFO information from 

the states that did not have their information released previously. Exhibit 28 at 1.

b. EPA-HQ-2013-006604. Ronald Clayton of DTN/Progressive Farmer submitted a 

FOIA request on May 13, 2013, seeking all records related to the related to the two 

original FOIA requests and response. Exhibit 28 at 3.

c. EPA-HQ-2013-004128. Bridget Huber of FairWarning submitted a FOIA request 

on March 5, 2013, seeking all records provided in response to the FOIA request 

made by Earthjustice. Exhibit 28 at 5.

d. EPA-HQ-2013-008906. On behalf of the intervenors of the above-captioned 

lawsuit, Environmental Integrity Project, Food & Water Watch, and Iowa Citizens 

for Community Improvement, Michele Merkel of Food & Water Watch submitted a 

FOIA request on August 7, 2013, seeking the same information sought by 

Earthjustice’s FOIA request. Exhibit 28 at 6.

e. EPA-HQ-2013-007430. CJ Ciaramella of MuckRock News submitted a FOIA 

request on June 13, 2013, seeking all internal and external communications to and 

from the EPA National FOIA Office regarding the two original requests (from 

Earthjustice, NRDC, and the Pew Charitable Trusts). Exhibit 28 at 14.

f. EPA-HQ-2013-006913. Mike Smith of TruthinFood.com submitted a FOIA 

request on June 12, 2013, seeking all documents provided to the original requesters 

(Earthjustice, NRDC, and the Pew Charitable Trusts), including correspondence, in 

fulfilment of the FOIA requests. Exhibit 28 at 15.

g. EPA-HQ-2013-004097. Wei Zhang of the University of California submitted a 

FOIA request on March 7, 2013, seeking all datasets that contained animal numbers 

plus additional CAFO operational information. Exhibit 28 at 17.

52. EPA’s deferment of the seven subsequent FOIA requests. The Plaintiffs served the 

EPA with a Complaint for Declaratory and Injunctive Relief on July 5, 2013. After receiving the 

Complaint, counsel for the EPA met and conferred with the plaintiffs regarding their motion for 
31

a temporary restraining order. The EPA decided to temporarily defer pending and subsequent 

FOIA requests seeking the same farm information the AFBF Plaintiffs allege is subject to 

Exemption 6 (“Deferral Agreement”). EPA’s decision was based on the complexity of the 

Exemption 6 analysis before the District Court and the nature of the alleged privacy interests at 

issue. The AFBF plaintiffs filed a letter with the District Court on July 10, 2013 withdrawing 

their motion for a temporary restraining order without prejudice. (See Case No. 0:13-cv-01751, 

Docket No. 21). Exhibit 29, July 10, 2013, Letter from Gary Koch. 

53. Once the Deferral Agreement was reached, the EPA informed all affected FOIA 

requesters, in an interim response, that the requests for the farm information would be deferred 

during the litigation and provided reference to the docket number so that requesters can monitor 

the progress of the litigation. Exhibit 30, Interim Responses to Six FOIA Requesters. The

amended scheduling order for this case provides that the parties will complete briefing on cross 

motions for summary judgment by September 1, 2014, with a hearing and decision on the merits 

of the Exemption 6 issues to follow thereafter. (See Case No. 0:13-cv-01751, Docket No. 60). 

The parameters of the Deferral Agreement were memorialized in writing on February 5, 2014. 

Exhibit 31, February 5, 2014, Parameters of Agreement between the EPA and American Farm 

Bureau Federation et al.

IV. RECORDS RELEASED AND WITHHELD UNDER EXEMPTION 6 

54. Released CAFO information. The EPA released in full (1) CAFO information 

pertaining to nineteen states and (2) consolidated spreadsheets from ICIS-NPDES and PCS and 

EPA Regions 3 and 5 because at the time of the release the information was either available to 

the public on the EPA or states’ websites, is subject to mandatory disclosure under state or 

federal law, or does not contain information that implicates a “substantial” privacy interest. See
32

¶¶ 42 and 44 of the Declaration. Thus, the EPA determined that this CAFO information was not 

subject to withholding under Exemption 6 of the FOIA. The CAFO information in the April 4 

and April 30 response are attached as Exhibit 32, and each state’s CAFO information is attached 

under the following exhibit name, “Exhibit 32 ([state]).” Screenshots of state websites are 

attached as Exhibit 33, and each state’s CAFO information is attached under the following 

exhibit name, “Exhibit 33 ([state]).”

55. Released CAFO information that was identical to states’ websites. As stated in 

Paragraph 44, above, the EPA released all of its CAFO information from six states because the

released information was identical in content and format to the information on the public 

websites of the corresponding states. The six states are Alabama, Arkansas, Maryland, 

Mississippi, North Carolina, and Texas. For those states, websites where this information could 

be found are listed below.

a. Alabama: The EPA collected Alabama CAFO information from the state’s 

website, as well as received data from the state permitting authority. The released 

CAFO information for Alabama is attached as Exhibit 32 (Alabama), and was 

available on Alabama’s publicly accessible website: 

http://www.adem.state.al.us/programs/water/cafo.cnt. Exhibit 33 (Alabama) is a 

screen shot of Alabama’s website, where the information was found at the time of 

the April 4 FOIA response.

b. Arkansas: The released CAFO information for Arkansas is attached as Exhibit 32

(Arkansas) and was available on Arkansas’s publicly accessible website: 

http://www.adeq.state.ar.us/home/pdssql/pds.aspx. Exhibit 33 (Arkansas) is a 

screen shot of Arkansas’s website, where the information was found at the time of

the April 4 FOIA response. As stated in Paragraph 30 of this Declaration, the EPA 

collected Arkansas CAFO information directly from the state’s public website.

c. Maryland: The released CAFO information for Maryland is attached as Exhibit 32

(Maryland) and was available on Maryland’s publicly accessible website: 

http://www.mde.state.md.us/programs/Land/SolidWaste/CAFOMAFO/Pages/Prog

rams/LandPrograms/Solid_Waste/cafo_search/CAFO_old.aspx. Exhibit 33

(Maryland) is a screen shot of Maryland’s website, where this information was 

found at the time of the April 4 FOIA response. As stated in Paragraph 30 of this
33

Declaration, the EPA collected Maryland CAFO information directly from the 

state’s public website.

d. Mississippi: The released CAFO information for Mississippi is attached as Exhibit 

32 (Mississippi) and was available on Mississippi’s publicly accessible website: 

http://opc.deq.state.ms.us/search_ai_alt.aspx#grid. Exhibit 33 (Mississippi) is a 

screen shot of Mississippi’s website, where this information was found at the time 

of the April 4 FOIA response. As stated in Paragraph 30 of this Declaration, the 

EPA collected Mississippi CAFO information directly from the state’s public 

website.

e. North Carolina: The released CAFO information for North Carolina is attached as 

Exhibit 32 (North Carolina) and was available on North Carolina’s publicly

accessible website: http://portal.ncdenr.org/web/wq/aps/afo/perm. Exhibit 33

(North Carolina) is a screen shot of North Carolina’s website, where this 

information was found at the time of the April 4 FOIA response.

f. Texas: The released CAFO information for Texas is attached as Exhibit 32 (Texas)

and was available on Texas’s publicly accessible website: 

http://www2.tceq.texas.gov/wq_dpa/index.cfm. Exhibit 33 (Texas) is a screen shot 

of Texas’s website, where this information was found at the time of the April 4 

FOIA response. As stated in Paragraph 30 of this Declaration, the EPA collected 

Texas CAFO information directly from the state’s public website.

56. Released CAFO information that was nearly identical to states’ websites. As stated

in Paragraph 44, above, the EPA released all CAFO information pertaining to seven states where 

the released information and the public state websites were almost identical in form and content. 

The seven states are Florida, Iowa, Louisiana, New Jersey, Pennsylvania, Tennessee, and 

Wisconsin. For those states, websites where this information could be found are listed below:

a. Florida: The released CAFO information for Florida is attached as Exhibit 32

(Florida). The EPA collected Florida CAFO information from the state’s website, 

as well as received data from the state permitting authority. This information can 

be downloaded from the state’s website: 

http://www.dep.state.fl.us/water/wastewater/facinfo.htm.

16 Exhibit 33 (Florida) is 

a screen shot of Florida’s publicly available website, where the information was 

found at the time of the April 4 FOIA response. As stated in Paragraph 30 of this 

Declaration, the EPA collected Florida CAFO information directly from the state’s 

public website. In addition to this website, all facilities, except for three, have 

NPDES permits, and therefore, subject to public disclosure requirements. 

 

16 The CAFOs information on Florida’s website includes industrial wastewater facilities in addition to the CAFO 

facilities released to the FOIA requesters. 
34

b. Iowa: The released CAFO information for Iowa is attached as Exhibit 32 (Iowa). 

The Agency obtained the CAFO information from the state permitting authority. 

The same CAFO information is available from the state website by performing a 

“facility search.” Additionally, the same CAFO information (and more) is 

available in downloadable reports, including the reports entitled “Basic AFO 

Data”, “Storage Structure and Animal Units” and “Geo Report”. These 

downloadable reports contain all the data elements and facility information that 

were released to the FOIA requesters. The released information is available on 

Iowa’s publicly accessible website: 

https://programs.iowadnr.gov/animalfeedingoperations/Default.aspx. Exhibit 33

(Iowa) is a screen shot of Iowa’s publicly available website, where the information 

was found at the time of the April 4 FOIA response. 

c. Louisiana: The released CAFO information for Louisiana is attached as Exhibit 

32 (Louisiana) The Agency obtained facility information in Louisiana by

extracting the CAFO information from the states electronic document management 

system, a web-based database. The released CAFO information for Louisiana is 

identical to what was available at the time of the FOIA request from the website 

but is in a different format. The website from which the Louisiana CAFO 

information was retrieved at the time of the April 4 FOIA response is: 

http://www.deq.louisiana.gov/portal/DIVISIONS/WaterPermits/LPDESPermits.as

px. and http://edms.deq.louisiana.gov/app/doc/querydef.aspx. In addition to being 

publicly available online, the released facility-specific information pertains only to

those facilities with an NPDES permit and is therefore subject to public disclosure 

requirements. As stated in Paragraph 30 of this Declaration, the EPA collected 

Louisiana CAFO information directly from the state’s public website. 

d. New Jersey: The released CAFO information for New Jersey is attached as 

Exhibit 32 (New Jersey). The Agency obtained CAFO information from the state 

website through a downloadable Excel spreadsheet, which is updated periodically. 

The released information was an older version of what was publicly available 

online when the Agency confirmed which information is available on the states’ 

website: http://www.state.nj.us/dep/dwq/database.htm (the information is listed 

under the “active permit list (Excel format)” tab). Exhibit 33 (New Jersey) is a 

screen shot of New Jersey’s website where this information could be found at the 

time of the FOIA response. In addition to these websites, the released facilityspecific information pertains only to those facilities with an NPDES permit and,

therefore, is subject to public disclosure requirements. As stated in Paragraph 30

of this Declaration, the EPA collected New Jersey CAFO information directly

from the state’s public website. 

e. Pennsylvania: The released CAFO information for Pennsylvania is attached as 

Exhibit 32 (Pennsylvania). The Agency obtained facility information from the state 

permitting authority. The same type of CAFO information is accessible on the state 

website by performing a search query in the Authorization Search Screen for 
35

authorization type: “PAG-12 Concentrated Animal Feed Operations” and selecting 

two other search parameters, such as application type and program type:

http://www.ahs.dep.pa.gov/eFACTSWeb/criteria_auth.aspx. After selecting 

search terms, the results are displayed and can be exported to an Excel spreadsheet. 

Selecting an individual search result will show more detailed information for that 

operation. Exhibit 33 (Pennsylvania) is a screen shot of Pennsylvania’s website

where this information can be found at the time of the April 4 FOIA response. In 

addition to these websites, the released facility-specific information pertains only

to those facilities with an NPDES permit and is therefore subject to public 

disclosure requirements.

f. Tennessee: The released CAFO information for Tennessee is attached as Exhibit 

32 (Tennessee). The Agency obtained facility information from the state 

permitting authority. The released CAFO information contained two additional 

data elements, number of acres and number of animals that are not available 

online. These two data elements are not protected under Exemption 6. Exhibit 33

(Tennessee) is a screen shot of Tennessee’s publicly available website, where the 

information was found at the time of the April 4 FOIA response: 

http://environmentonline.state.tn.us:8080/pls/enf_reports/f?p=9034:34001:8736692714290. 

g. Wisconsin: The released CAFO information for Wisconsin is attached as Exhibit 

32 (Wisconsin). The Agency obtained two versions of a spreadsheet from the state 

permitting authority, as well as previously state-submitted CAFO information to 

the EPA Region 5. The state’s websites are updated periodically and contain a list 

of facilities that can be downloaded in a different file format than an Excel

spreadsheet: http://dnr.wi.gov/topic/AgBusiness/data/CAFO/cafo_all.asp and 

http://dnr.wi.gov/topic/AgBusiness/data/CAFO/. Exhibit 33 (Wisconsin) is a 

screen shot of Wisconsin’s website where this information can be found at the time 

of the April 4 FOIA response. In addition to these websites, the released facilityspecific information pertains only to those facilities with an NPDES permit and is

therefore subject to public disclosure requirements. 

57. Released CAFO information available on EPA’s web-based data systems. As stated 

in Paragraph 44, above, the EPA released all CAFO information from two states (Maine and 

New York) and consolidated spreadsheets where the information was derived from EPA’s 

national NPDES data systems, ICIS-NPDES and PCS. The ICIS-NPDES and PCS’s information 

are attached as Exhibit 32, (New York), (Maine), and (Consolidated Spreadsheets from EPA 

Data Systems). CAFO information entered into PCS or ICIS-NPDES data systems is publicly

available either via the ECHO (for NPDES permitted facilities) or EnviroFacts (for unpermitted 
36

facilities) web-based data systems, except for information that is classified as confidential 

business information, related to an ongoing enforcement action, or associated with inspection 

planning. As described in Paragraph 30, the EPA searched its data systems because New York 

and Maine’s state employees referred the EPA to these data systems for their CAFO information. 

58. Released CAFO information subject to mandatory disclosure requirements under the 

NPDES regulations or similar state permitting program laws. As stated in Paragraph 44, above, 

the EPA released all CAFO information pertaining to four states because this information was 

subject to mandatory disclosure requirements of the federal NPDES regulations or similar state 

laws. The four states are Oregon, North Dakota, South Dakota, and Wyoming. The EPA also 

released an EPA Region 3 consolidated spreadsheet of poultry facilities in the Delmarva 

Peninsula, including poultry facilities from Delaware, Maryland, and Virginia. The EPA Region 

3 had gathered this information in the course of carrying out Regional enforcement activities, 

such as field investigations and online research of publicly available databases. The EPA Region 

3 consolidated spreadsheet also contained state-provided information for facilities with federal 

and state permits, which are subject to mandatory disclosure under state law. As stated in 

Paragraph 9, section 402 of the CWA requires that a copy of each permit application and each 

permit issued be available to the public and be available upon request for the purpose of 

reproduction. 33 U.S.C. § 1342(j). The CAFO information is also subject to disclosure under 

federal regulations at 40 CFR § 122.42(e). See ¶ 9 and 40 C.F.R. §§ 122.21(i), 123.25(a)(4), 

123.25(a)(13). These regulations require public disclosure of the following information: (1) the 

name of the owner or operator; (2) facility location and mailing address; (3) latitude and 

longitude of the production area (entrance of the production area); (4) a topographic map of the 

geographic area in which the CAFO is located showing the specific location of production area; 
37

(5) specific information about the number and type of animals, whether in open confinement or 

housed under roof; (6) the type of containment and storage and total capacity for manure, litter, 

or process water; (7) the total number of acres under control of the applicant available for land 

application of manure, litter, or process wastewater; (8) estimated amounts of manure, litter, and 

process wastewater generated per year; (9) estimated amounts of manure, litter, and process 

wastewater transferred to another person per year; and (10) a nutrient management plan that at a 

minimum satisfies requirements in 40 C.F.R. § 122.42(e). See ¶ 10 and 40 C.F.R. § 122.21(i). 

a. Oregon: The released CAFO information for Oregon is attached as Exhibit 32

(Oregon) and comprises three spreadsheets, which list many of the same facilities. 

The spreadsheets list operations with NPDES permits that meet EPA’s Large 

CAFO size thresholds, as well as operations that fall below EPA’s Large CAFO 

size thresholds but are required to obtain NPDES permit under state law. See Or. 

Admin. R. 603-074-0014. 

Information is listed under the following column headings, among others:17

business name, contact name, mailing address, telephone number, latitude and 

longitude, industrial classification code, permitted number of animals and acres 

available. All of this information is requested by the state’s permit applications. 

Oregon’s CAFO permit public notice requirements make available to the public 

the name of the operation; the name of the operator or owner if different than the 

operator, as well as his or her mailing address and telephone number; the physical 

address of the operation; the type of operation; the number of animals proposed; 

the operation’s land use compatibility statement, and its animal waste 

management plan. See Or. Admin. R. 603-074-0014, referencing the Oregon 

CAFO General Permit at 8.

The released CAFO information also included a column that indicated whether 

the facility was permitted, denoted by a “yes.” The EPA released all of the 

information because it was required to be made available to the public or because 

the information did not implicate a “substantial” privacy interest under FOIA 

Exemption 6. The EPA also concluded that even if some of these data elements 

potentially possessed a privacy interest, the public interests in disclosing this 

information outweighed the privacy interest. 

b. North Dakota: The released CAFO information for North Dakota is attached as 

Exhibit 32 (North Dakota) and comprises one spreadsheet of state permitted, large 

animal feeding operations. Information is listed under the following column 

 

17 Occasionally a term listed as a “column heading” in this document actually paraphrases a state spreadsheet 

column heading for clarity’s sake, e.g., by spelling out an acronym used on a state spreadsheet.
38

headings, among others: name and address, production area location (latitude and 

longitude), number of animals confined, permitting status of a facility, and 

inspection information. 

With an exception of the inspection information, all remaining CAFO information 

from North Dakota can be found within state approved water permits, copies of 

which North Dakota must provide to interested individuals. N.D. Admin. Code 

33-16-01-07; see also 33-16-03.1-13. The remaining inspection information, such 

as types of inspection conducted and description; location identifying information, 

such as “QPS,” “TRSQ,” or “aerial photo”; and average weight, did not implicate 

a “substantial” privacy interest under FOIA Exemption 6. The EPA also 

concluded that even if some of these data elements potentially possessed a privacy

interest, the public interests in disclosing this information outweighed the privacy

interest. 

c. South Dakota: The released CAFO information for South Dakota is attached as 

Exhibit 32 (South Dakota). The released CAFO information from South Dakota 

only comprises records of NPDES permittees. Information is listed under the 

following column headings, among others: facility [names], numbers of animals 

permitted, types of animals confined, NPDES permit status of the facility, county, 

and acres available for land application. All listed information must be disclosed 

as NPDES permit information.

d. Wyoming: The released CAFO information for Wyoming is attached as Exhibit 

32 (Wyoming). The released CAFO information from Wyoming only comprises 

records of NPDES permittees. Information is listed under the following column 

headings, among others: permittee and facility names, addresses, production area 

locations, outfall descriptions and NPDES permit status of the facility. With the 

exception of outfall descriptions (i.e., “outfall”), all listed information must be 

disclosed as NPDES permit information. Description of outfalls does not raise a 

privacy interest under FOIA Exemption 6.

e. EPA Region 3 consolidated spreadsheet of the Delmarva Peninsula poultry 

facilities: The released CAFO information in this EPA Region 3 consolidated 

spreadsheet is attached as Exhibit 32 (Region 3 Consolidated Spreadsheet). The

EPA created the consolidated spreadsheet from information obtained through

various sources. Specifically, these sources include states’ websites, publicly

accessible online databases, Google Earth, state permitting authorities, and EPA 

site visits and inspections. 

The released CAFO information comprises records of poultry facilities in three 

states: Delaware, Maryland, and Virginia. The consolidated spreadsheet contains 

information under the following column headings, among others: latitude and 

longitude, parcel number, first and last name, permit status, capacity, permit type, 

integrator, farm name, animal type, date application was received, and storage 

volume.
39

All data elements that are on an NPDES permit application were released for 

facilities with an NPDES permit. See 33 U.S.C. § 1342(b)(3), (j); 40 C.F.R. §§ 

122.23(h), 124.10-17. All data elements that were available from Delaware, 

Maryland, and Virginia’s websites were released. See

http://dda.delaware.gov/nutrients/forms/2009/122009_Current%20CAFO%20List.

pdf and http://dda.delaware.gov/nutrients/forms/2008/052108_CAFOList.pdf (for 

Delaware); 

http://www.mde.state.md.us/programs/Land/SolidWaste/CAFOMAFO/Pages/Prog

rams/LandPrograms/Solid_Waste/cafo_search/CAFO.aspx (for Maryland); and 

http://www.deq.virginia.gov/Programs/Water/LandApplicationBeneficialReuse/Pu

blicNotices.aspx (for Virginia). 

All data elements that were obtained from an EPA site visit or inspection was 

released pursuant to disclosure requirements of section 308 of the CWA. For 

facilities in Maryland and Virginia, all information was released because of state 

mandatory disclosure requirements. See MD. CODE REGS. 26.08.04.09(N)(3) for 

Maryland and VA. CODE ANN. §§ 62.1-44.17:1(C), (D) for Virginia.

59. The EPA withheld a subset of CAFO information from ten states under Exemption 6. 

Exemption 6 of the FOIA protects from disclosure “personnel and medical files and similar files 

the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.” 5 

U.S.C. § 552(b)(6). The EPA withheld a subset of information for some of the facilities from the 

ten remaining states: Arizona, Colorado, Georgia, Indiana, Illinois, Michigan, Montana, Nebraska, 

Ohio, and Utah. Below is a brief summary of CAFO information from each state that includes the 

source of the information, data elements, and information withheld under Exemption 6.

a. Arizona: The state permitting authority provided the Arizona CAFO 

information, which comprises one pdf spreadsheet listing both facilities with 

NPDES permits, as well as facilities with state issued permits. 

Information is listed under the following column headings, among others: facility

name, subject to an Arizona discharge permit, place ID, owner/contractor name, 

physical address, phone number, business type, animal type, CAFO class, and 

latitude/longitude coordinates. 

The information listed is required by the NPDES permitting process and 

therefore, was released for facilities that had NPDES permits. See 33 U.S.C. § 

1342(b)(3), (j); 40 C.F.R. §§ 122.23(h), 124.10-17. State law requires that the 

names and addresses and other permit information from state permitted facilities
40

be publicly available. See Ariz. Rev. Stat. Ann. § 49-205(B) and (C). The EPA 

withheld telephone numbers for the facilities that did not have an NPDES permit. 

All other information listed on the state spreadsheets, such as “business type,” 

was released because the information did not implicate a “substantial” privacy

interest under FOIA Exemption 6. The EPA also concluded that even if some of 

these data elements potentially possessed a privacy interest, the public interests in 

disclosing this information outweighed the privacy interest. The Arizona CAFO 

information is attached as Exhibit 32 (Arizona).

b. Colorado: The state permitting authority provided the Colorado CAFO 

information, which comprises one spreadsheet listing both facilities with NPDES 

permits as well as those registered with the state under a state registration

requirement for certain agricultural facilities. 

Information is listed under the following column headings, among others: ID

number; permittees’ name and address, content type, permit sub-type, facility

name, and address; facilities’ name, content type, permit sub-type, facility name, 

and address; registered capacity; maximum capacity; and animal type. 

For the facilities that had an NPDES permit, the EPA released all of the 

information because this information must be made available to the public 

through the NPDES permitting process. See 33 U.S.C. § 1342(b)(3), (j); 40 

C.F.R. §§ 122.23(h), 124.10-17. For all non-NPDES facilities, the EPA withheld 

permittees’ names and addresses (including facility names that contain individual 

names), but released the remaining information because it did not implicate a 

“substantial” privacy interest under FOIA Exemption 6. The EPA also concluded 

that even if some of these data elements potentially possessed a privacy interest, 

the public interests in disclosing this information outweighed the privacy interest. 

The Colorado CAFO information is attached as Exhibit 32 (Colorado).

c. Georgia: The state permitting authority provided the Georgia CAFO 

information, which comprises six spreadsheets of animal operations (e.g. swine, 

dairy, and poultry). These spreadsheets list information from the state’s NPDES 

permitting program, its land application permitting program, and the state 

agriculture department licensing and registration programs. 

Information is listed under the following column headings, among others: owners’ 

name, operation’s name, facility location, mailing address, telephone numbers, 

latitude/longitude coordinates, other information related to status of the 

operations’ permits, and other notes unrelated to a facility’s operation. 

The EPA released information that is contained on an NPDES permit application 

for those facilities that had an NPDES permit. See 33 U.S.C. § 1342(b)(3), (j); 40 

C.F.R. §§ 122.23(h), 124.10-17. The EPA also released names, addresses, and 

telephone numbers for facilities that were covered by the state’s land application 

permitting program because state permit application information is also publicly
41

noticed. See Ga. Comp. R. & Regs. 391-3-6-.11(6); see also Ga. Code Ann. § 50-

18-71. For these facilities with the state’s land application system permits, the 

EPA withheld personal names in comments or notes, email addresses, and other 

notes unrelated to a facility’s operation. 

For facilities not on the NPDES or state land application permit spreadsheets, the 

EPA withheld individual names (including facility names that contain individual 

names), addresses, and telephone numbers. All other information was released 

because it does not implicate a “substantial” privacy interest under Exemption 6. 

The EPA also concluded that even if some of these data elements potentially

possessed a privacy interest, the public interests in disclosing this information 

outweighed the privacy interest. The Georgia CAFO information is attached as 

Exhibit 32 (Georgia).

d. Illinois: The EPA Region 5 provided the Illinois CAFO information, which is 

an Excel spreadsheet. The Illinois CAFO information was obtained as part of the 

response to the petition to withdraw the Illinois NPDES program and lists

facilities permitted by the NPDES program, unpermitted facilities, and facilities 

registered with the Illinois Department of Agriculture. 

Information is listed under the following column headings, among others: ID

number, facilities’ name and address, owner/operator name and address, animal 

type, animal number, latitude/longitude coordinates, regional office, inspection 

information, livestock maximum capacity, animal type, containment type, 

wastewater storage type, total storage volume, manure land application or transfer 

records, nutrient management plan status, watershed, distance from water of U.S., 

and additional notes. 

The EPA released information contained on an NPDES permit application for 

those facilities that had an NPDES permit. See 33 U.S.C. § 1342(b)(3), (j); 40 

C.F.R. §§ 122.23(h), 124.10-17. The EPA withheld the following information for 

the remaining facilities: personal names (within the facility and owner/operator 

columns), mailing addresses other than the physical locations of the facilities (for 

example: P.O. Boxes within the facility street address column), and telephone 

numbers for facilities that did not have an NPDES permit. 

The EPA released the other data elements, such as the dates of the approved 

nutrient management plans or inspection information, for the facilities without an 

NPDES permit because these data elements did not implicate a “substantial”

privacy interest under Exemption 6. The EPA also concluded that even if some of 

these data elements potentially possessed a privacy interest, the public interests in 

disclosing this information outweighed the privacy interest. The Illinois CAFO 

information is attached as Exhibit 32 (Illinois).

e. Indiana: The state permitting authority provided the Indiana CAFO 

information, which comprises a Excel spreadsheet of facilities with an NPDES 
42

permit, facilities with a state issued permit, and facilities that received an 

exemption from the state permitting program requirements.

Information is listed under the following column headings, among others: ID

numbers; operation name, address, and latitude/longitude coordinates; permit 

information about size, approval information, NPDES number, permit expiration 

and renewal date; listed animal information including animal type, finisher; and 

owner’s name and owner contact information. 

The EPA released information contained on an NPDES permit application for 

those facilities that had an NPDES permit. See 33 U.S.C. § 1342(b)(3), (j); 40 

C.F.R. §§ 122.23(h), 124.10-17. The EPA also released names of facilities with a 

state issued permit because that information was available on the state’s website, 

accessible at: http://www.in.gov/idem/4850.htm. Exhibit 33 (Indiana) is a 

screenshot of the Indiana website where the information was found at the time of 

the FOIA responses. 

For facilities with a state issued permit, the EPA withheld the facility owner’s 

street mailing address and telephone numbers. The Indiana CAFO information is 

attached as Exhibit 32 (Indiana). 

f. Michigan: The state permitting authority provided the Michigan CAFO 

information, which comprises five Excel spreadsheets. The spreadsheets include 

information about facilities with NPDES permits, facilities exempted from 

obtaining NPDES permits, and facilities subject to state agriculture department 

program requirements (i.e., Agriculture Environmental Assurance Program and 

Nutrient Management Strategy). 

Information is listed under the following column headings, among others: contact 

or facility name, facility location, latitude/longitude coordinates, hydrologic unit 

code, number of animal units, water stewardship technician, verification status, 

permit status, and identification ID numbers. 

The EPA released NPDES permit-related information for those facilities that had 

an NPDES permit. See 33 U.S.C. § 1342(b)(3), (j); 40 C.F.R. §§ 122.23(h), 

124.10-17. Exhibit 33 (Michigan) is a screenshot of Michigan’s website where 

the information was also found to be publicly available at the time of the FOIA 

responses. The website is available at: http://www.michigan.gov/deq/0,1607,7-

135-3313_3682_3713-96774--,00.html. 

For facilities that did not have an NPDES permit, the EPA withheld individuals’ 

names and facility names that include individual names. The information under 

the remaining column headings, such as facility location, latitude/longitude 

coordinates, hydrologic unit code, number of animal units, water stewardship 

technician, verification status, permit status, and identification ID numbers do not 

implicate a “substantial” privacy interest. The EPA also concluded that even if 
43

some of these data elements potentially possessed a privacy interest, the public 

interests in disclosing this information outweighed the privacy interest. The 

Michigan CAFO information is attached as Exhibit 32 (Michigan).

g. Montana: The state permitting authority provided the Montana CAFO 

information, which comprises an Excel spreadsheet with fifty-three worksheets

listing CAFOs with NPDES permits as well as unpermitted CAFOs.

Information is listed under the following column headings, among others: land 

owner’s name, address, physical address (if different from mailing address), ID 

method, unique identifier, latitude/longitude coordinates, state permit status, and 

inspector notes. 

The EPA released NPDES permit-related information for those facilities that had 

an NPDES permit because this information must be made available to the public 

through the NPDES permitting process. See 33 U.S.C. § 1342(b)(3), (j); 40 

C.F.R. §§ 122.23(h), 124.10-17. Exhibit 33 (Montana) is a screenshot of the 

Montana website, where the information was also found at the time of the FOIA 

responses. The Montana website is available at:

http://svc.mt.gov/msl/mtcadastral/. 

The EPA withheld information in the “validation” data column because the 

information was not related to the facility’s operation. For facilities that did not 

have an NPDES permit, the EPA also withheld individual names and mailing 

addresses that were different from the physical locations of facilities as well as

notes unrelated to a facility’s operation. The remaining information, such as ID 

method, does not implicate a “substantial” privacy interest. The EPA also 

concluded that even if some of these data elements potentially possessed a privacy

interest, the public interest of disclosure outweighed the privacy interest. The 

Montana CAFO information is attached as Exhibit 32 (Montana).

h. Nebraska: The state permitting authority provided the Nebraska CAFO 

information, which comprises two Excel spreadsheets of facilities with NPDES 

permits, facilities with state permits under the Land and Water Fund program, and 

facilities exempted from permitting requirements. 

Information is listed under the following column headings, among others: facility

ID, name, address, size, latitude/longitude coordinates, NPDES permit, state 

operating license, construction or operating license, animal type and numbers, 

feeder type and numbers, point of contact’s name, position, mailing address, 

telephone number, and other operational information. 

The EPA released information contained on an NPDES permit application for 

those facilities that had an NPDES permit. See 33 U.S.C. § 1342(b)(3), (j); 40 

C.F.R. §§ 122.23(h), 124.10-17. 
44

The EPA withheld individual’s names, mailing address, and telephone numbers 

for facilities with a state permit or facilities exempted from permitting 

requirements. The remaining information, such as information related to waste 

storage or disposal, does not implicate a “substantial” privacy interest. The EPA 

also concluded that even if some of these data elements potentially possessed a 

privacy interest, the public interest of disclosure outweighed the privacy interest. 

The Nebraska CAFO information is attached as Exhibit 32 (Nebraska).

i. Ohio: The state permitting authority provided Ohio CAFO information, which 

comprises two Excel spreadsheets listing facilities with NPDES permits and 

facilities with permits from Ohio Department of Agriculture’s Livestock 

Permitting Program. The state permitting authority also provided an Excel

spreadsheet for manure spills in 2011. 

Information is listed under the following column headings, among others: facility

name, address, farm species, animal numbers, latitude/longitude coordinates, and 

additional notes. The information also contained manure spill information. 

The EPA released information contained on an NPDES permit application for 

those facilities that had an NPDES permit and the information regarding manure 

spills since the information is related to a discharge. See 33 U.S.C. § 1342(b)(3), 

(j); 40 C.F.R. §§ 122.23(h), 124.10-17. The EPA also released names and address 

of state permitted facilities because that information was available on the states’ 

website available at: http://www.epa.state.oh.us/dsw/cafo/index.aspx. All 

released information was available on Ohio’s publicly accessible website or did 

not implicate a “substantial” privacy (such as information listed under column 

headings entitled, not received, facility expanded, etc.). The EPA also concluded 

that even if some of these data elements potentially possessed a privacy interest, 

the public interest of disclosure outweighed the privacy interest. Exhibit 33

(Ohio) is a screenshot of the Ohio website, where the information was found at 

the time of the FOIA responses.

The EPA withheld one note relating to the status of a facility’s finances. The Ohio 

CAFO information is attached as Exhibit 32 (Ohio).

j. Utah: The state permitting authority provided Utah CAFO information, which 

comprises two Word documents with lists of permitted and unpermitted large 

CAFOs. 

Information is listed under the following column headings, among others: facility

name, first and last name, address, county, telephone number, inspection dates, 

latitude/longitude coordinates, and animal numbers. 

The EPA released information contained on an NPDES permit application for 

those facilities that had an NPDES permit. See 33 U.S.C. § 1342(b)(3), (j); 40 

C.F.R. §§ 122.23(h), 124.10-17. The EPA also released inspection data because 
45

the information does not implicate a “substantial” privacy interest. The EPA also 

concluded that even if some of these data elements potentially possessed a privacy

interest, the public interest of disclosure outweighed the privacy interest. 

The EPA withheld unpermitted facilities’ names of individuals (including facility

names that contain individual names), mailing addresses, and telephone numbers. 

The Utah CAFO information is attached as Exhibit 32 (Utah).

PART V. EPA’S EXEMPTION 6 ANALYSIS

60. Threshold analysis: personnel, medical, and similar files. The EPA first determined 

whether the information was “personnel and medical and similar files” in order to meet the 

threshold requirement of Exemption 6. 5 U.S.C. § 552(b)(6). The EPA thoroughly evaluated 

every data element of the CAFO information and found that although the CAFO information 

predominantly pertains to facilities and facility operations, some of this information could 

directly or indirectly relate to individuals. Accordingly, the Agency concluded that the CAFO 

information satisfied the threshold requirement of Exemption 6. 

61. Identifying the privacy interests. As part of the second step of its Exemption 6 

analysis, the EPA determined whether there is a “substantial” privacy interest in the requested 

information. Because some of the CAFO information from the ten states was not publicly

available on EPA or states’ websites or required for mandatory disclosure under a federal or state 

law, the EPA completed an exhaustive review to determine whether any of the CAFO

information obtained from the ten remaining states raised a “substantial” privacy interest and, if 

so, whether the disclosure would constitute a clearly unwarranted invasion of personal privacy. 

In its review, the EPA evaluated each data element in the ten states and considered statements 

regarding the privacy of farmers in the Agriculture Stakeholders’ February 25 and March 22 

letters. The EPA also identified any state laws or regulations that required state permitting 
46

information to be released. If the EPA concluded that state permitting program information is 

subject to public disclosure, the Agency then cross referenced the public disclosure requirements 

against each data element to determine the whether a privacy interest existed. If a privacy

interest was identified, then the Agency determined the weight of each privacy interest that each 

element should be afforded. The difference between this exercise and the analysis conducted for

information released about the four states and the consolidated spreadsheets referred in 

Paragraph 58 is that not all data elements contained in the ten states’ CAFO information were 

subject to mandatory disclosure requirements under state or federal law or available from the 

state’s websites.

62. The Agency understood that a privacy interest of Exemption 6 only pertains to 

individuals and does not apply to corporations or businesses. While all information in the ten 

states pertained to the CAFO facilities, the EPA also took into consideration the privacy interests 

expressed in the Agricultural Stakeholder’s February 25 letter. See ¶ 37of this Declaration, 

Exhibit 18. Relevant to the privacy interest inquiry, the EPA considered the following 

statements made by the Agricultural Stakeholders in the February 25 letter: (1) farmers and 

ranchers live in close proximity to their animals; (2) the CAFO information could possibly be 

used by groups who “oppose our members’ businesses and way of life for reasons largely, if not 

entirely, unrelated to the honorable goals and objectives of the [CWA]”; and (3) general privacy

and security concerns regarding the release of the CAFO information. Id. Based on these

expressed concerns, the EPA determined that a subset of ten states’ CAFO information—the 

names and addresses of individuals (as opposed to business or facility names and locations, 

though facility names that include the individuals’ names were also redacted), telephone 
47

numbers, email addresses, and notations that relate to personal matters—may implicate a

privacy interest under Exemption 6.

63. Identifying the public interest in disclosure. After identifying the potential privacy

interests, the EPA then engaged in the third step of the Exemption 6 analysis by identifying the

public interest in disclosing the information—specifically, how each data element sheds light on 

the Agency’s performance of its statutory duties. In the Withdrawal of the Proposed CAFO 

Reporting Rule, the Agency recognized that CAFOs play an important role in water quality 

planning due to the fact that they are potential sources of discharges of nitrogen, phosphorus, 

pathogens, and other pollutants. See Exhibit 6, 77 Fed. Reg. at 42,681. The EPA also 

acknowledged that “any CAFO information obtained by the EPA through existing sources will 

further enhance the CWA programs that are already in place to protect and restore water 

quality.” See Exhibit 34, Supplemental Response to Comments for the Proposed NPDES CAFO 

Reporting Rule at 2 (docket EPA-HQ-OW-2011-0188-1436). The public participation mandates 

throughout the CWA indicate a Congressional acknowledgement of the key role of an informed

citizenry in helping achieve the goals of the Act. The paragraphs below specifically describe 

why public access to the information sheds light on the Agency’s performance of its statutory

duties and is consistent with the objectives of the CWA.

64. “Public participation .... shall be “provided for, encouraged, and assisted” in “the 

development, revision, and enforcement of any regulation, standard, effluent limitation, plan or 

program” that the EPA or states establish under the CWA. 33 U.S.C. § 1251(e). Citizen 

participation in EPA’s development and enforcement of regulations and other programs, and 

decisions as to whether to such regulations or programs need revisions, is more effective if 

members of the public have access to the CAFO information on which the EPA bases its 
48

decisions. As the EPA stated in the Proposed CAFO Reporting Rule, complete and accurate 

information allows governments, regulated communities, interest groups, and the public to make 

more informed decisions regarding ways to protect the environment. See 76 Fed. Reg. at 65,434. 

The EPA manages comprehensive programs, both regulatory and non-regulatory in nature, 

intended to address discharges and pollution from CAFOs and non-CAFO agricultural 

operations. Understanding EPA’s information related to CAFO locations and basic operations 

allows the public to fully participate in the development, revision, and enforcement of EPA’s 

regulatory and other programs, as required by CWA section 101(e). 

65. Section 104 of the CWA authorizes the EPA to investigate and report to the public 

the causes of pollution problems and means of addressing them. 33 U.S.C. §§ 1254. 

Specifically, the EPA must “in cooperation with other Federal, State, and local agencies, conduct 

and promote ... surveys, and studies” relating to the causes and prevention of pollution, and the 

Agency may “collect and make available, through publication and other appropriate means, the 

results of” such surveys and studies. 33 U.S.C. §§ 1254(a)(1), (b)(1). Section 104 also charges 

the Agency with conducting “public investigations concerning the pollution of any navigable 

waters,” and requires it to “report on the results of such investigations.” Id. at § 1254(a)(3). The 

EPA is also authorized to “collect and disseminate” information about “pollution and the 

prevention, reduction, and elimination thereof.” Id. at § 1254(b)(6). As described earlier in this 

Declaration, the EPA collects CAFO information nationwide, in cooperation with state CAFO 

permitting agencies, in order to understand and address potential water pollution problems from 

agricultural operations. Release of information about CAFO locations and operations, which 

may relate to the causes and prevention of pollution, is consistent with the disclosure provisions 

of Section 104. 
49

66. Section 102(a) of the CWA requires the EPA to “prepare or develop comprehensive 

programs for preventing, reducing, or eliminating the pollution of the navigable waters.” 33 

U.S.C. § 1252(a). Members of the public could more effectively monitor whether the EPA is 

“comprehensively” addressing one significant source of pollution, discharges from agricultural 

operations, including CAFOs, if the EPA made available its information related to the locations 

and operations of such sources.

67. EPA’s central means of addressing discharges of pollutants from CAFOs is the 

CAFO NPDES permitting program and effluent guidelines for CAFOs. 40 C.F.R. §§ 122.23, 

122.42; 40 C.F.R. part 412. Section 301 of the CWA prohibits discharges from point sources 

unless in compliance with a permit or other provisions of the Act, and requires the EPA to 

establish effluent limitations that are implemented through NPDES permits. 33 U.S.C. §§ 1311, 

1342. Section 402 authorizes the NPDES permitting program for point sources, such as CAFOs. 

33 U.S.C. § 1342. As explained in the Proposed CAFO Reporting Rule, knowing the locations 

of facilities and operational information that relate to how and why a facility may discharge is 

“essential” to carrying out NPDES program functions under section 402 of the CWA. See 76 

Fed. Reg. 65,431, 65,436 (Oct. 21, 2011). These programmatic functions include: (1) evaluating 

the NPDES program effectiveness; (2) identifying and permitting CAFOs that discharge; (3) 

conducting education and outreach to promote best management practices; (4) determining 

potential sources of water quality impairments and taking steps to address those impairments; (5) 

estimating CAFOs loadings—by facility, by watershed, or other geographical area; and (6) 

targeting resources for compliance assistance or enforcement. Id. In light of the listed NPDES 

program functions, the EPA determined that members of the public have a public interest in 

obtaining certain CAFO information to ensure that the EPA is properly administering and 
50

overseeing its CAFO NPDES program, pursuant to section 402 of the CWA. See also ¶ 9 of the 

Declaration.

68. The CAFO information will also shed light on EPA’s efforts to restore watersheds

outside of the NPDES permitting program. A key CWA program that addresses pollution from 

agriculture not regulated by NPDES permits is the award of grants under CWA section 319(h) to 

implement approved state and tribal nonpoint source management programs. 33 U.S.C. 

§ 1329(h). Section 319(h) supports a variety of state and tribal nonpoint source programs, 

including technical assistance, financial assistance, education, training, technology transfer, 

demonstration projects, and regulatory programs. Id. Forty percent of section 319 grants have 

been used to control nonpoint source pollution from working farms and ranches. See EPA 841-

F-05-001 “Agricultural Nonpoint Source Fact Sheet,” available at: 

http://water.epa.gov/polwaste/nps/agriculture_facts.cfm. The public can only monitor whether 

these grant funds are being used effectively if they know the locations and sources of nonpoint 

source problems. For example, if members of the public learn of watersheds with high 

concentrations of animal feeding operations, where the operations lack adequate discharge 

controls but do not meet thresholds for permitting as a CAFO, they might urge the EPA or their 

state to direct section 319 funding towards these watersheds.

69. Members of the public could use the CAFO information to inform their participation 

in EPA’s periodic issuance of guidelines for evaluating nonpoint sources of pollutants, as well as 

methods to control pollution resulting from specified activities, including agricultural activities, 

pursuant to CWA section 304(f). 33 U.S.C. § 1314(f). The EPA is required to consult with 

appropriate agencies as well as interested persons before issuing such guidelines. Id. Citizens

are best positioned to advise the EPA with regard to new means of evaluating and controlling 
51

pollutants from agricultural activities if they are familiar with the locations and operations of 

agricultural facilities, both those that are permitted and those that are not. They are also best 

positioned to monitor EPA’s implementation of section 304(f) of the CWA if they are familiar 

with the information the EPA itself used to formulate its guidelines, processes and methods. 

70. CAFO operation and location information would also inform the public’s review of 

state water quality standards, and EPA’s review of such standards, pursuant to section 303(c) of 

the CWA. 33 U.S.C. § 1313(c). Section 303(c) requires that states periodically review 

applicable water quality standards and, as appropriate, modify and adopt new standards. Id. The 

standards must be established to protect public health and welfare, enhance water quality, and 

serve the purposes of the Act, and take into account, among other things, the use of waterbodies

for agricultural and other purposes. Id. at § 1313(c)(2)(A). The EPA is then charged with 

reviewing and approving or disapproving any revised or new standard and, if the state does not 

address the disapproval, the EPA must establish a new water quality standard in its place. Id. at § 

1313(c)(3). Citizens are often deeply involved in monitoring the standards-setting and review 

process. For example, states must hold public hearings for the purpose of reviewing water 

quality standards and make available to the public any proposed revisions and supporting 

analyses. 33 U.S.C. § 1313(c)(1), 40 C.F.R. § 131.20. Citizens may also petition the EPA to 

establish new water quality standards. See, e.g., Petition from the Ozark Chapter of the Sierra 

Club Regarding Defined Portions of the Mississippi and Missouri Rivers, at 1, 6, February 25, 

2003 (requesting that the EPA exercise its authority under section 303(c) of the Clean Water Act 

to promulgate water quality standards applicable to the Mississippi and Missouri rivers, and 

citing in support the contamination of the rivers due, in part, to nutrients from agriculture), and 

the EPA Response to the Sierra Club Petition, available at
52

http://water.epa.gov/scitech/swguidance/standards/SierraClub.cfm. Citizens are able to 

participate in the standards-setting and review process more effectively if they can analyze 

EPA’s information regarding the locations and operations of potential pollutant sources such as 

CAFOs and other agricultural operations.

71. The EPA’s regulations implementing the CWA section 303(d) total maximum daily

load (“TMDL”) program recognize the need for and value of public input, as well. 40 C.F.R. §

130.7(c)(1)(ii). If effluent limitations established under CWA section 301(b) are not sufficient to 

implement a waterbody’s section 303(c) water quality standards, states must identify that 

waterbody on their biennial CWA section 303(d) “impaired waters” list, establish a TMDL for 

pollutants in that waterbody in accordance with its priority rankings, and submit these listings 

and loadings to the EPA for approval. 33 U.S.C. § 1313(d). Calculations to establish TMDLs 

are subject to public review as defined in the state’s continuing planning 

process. Id. Furthermore, if the EPA disapproves the state’s lists or TMDLs, the Agency must 

establish new listings and TMDLs, and issue a public notice seeking comment on them. 40 

C.F.R. § 130.7(d)(2). The Agency must consider public comments and make any appropriate 

revisions before transmitting the listings and TMDLs back to the state. Id. For example, in 

establishing the Chesapeake Bay TMDL, the EPA conducted extensive public outreach, 

including thirty-four public meetings, in which over 4,800 people participated, as well as 

frequent webinars that drew over 2,500 participants. See Chesapeake Bay TMDL, chapter 11, 

available at

http://www.epa.gov/reg3wapd/pdf/pdf_chesbay/FinalBayTMDL/CBayFinalTMDLSection11thro

ugh14_final.pdf. The EPA also received and considered over 14,000 public comments on the 

TMDL. TMDLs may address pollutants from agriculture. See, e.g., id. at chapter 4 (addressing
53

agriculture as the single largest source of sediment and nutrient loadings to the Bay), available at

http://www.epa.gov/reg3wapd/pdf/pdf_chesbay/FinalBayTMDL/CBayFinalTMDLSection4_fina

l.pdf. Public input and comments are more useful if the public understands the locations and 

basic information about potential sources of pollutants addressed in the TMDL. 

72. The EPA is also charged with reviewing state continuing planning processes 

(“CPPs”) for all navigable waters within a state, which address, among other things, effluent 

limitations, TMDLs and the implementation of water quality standards. 33 U.S.C. § 1313(e). As 

discussed above, effluent limitations (such as the CAFO regulations), TMDLs, and water quality

standards may all relate to pollutants from agricultural sources, including CAFOs. Citizens are

better equipped to monitor state issuance of CPPs and EPA review of state CPPs if they are well 

informed about potential sources of the pollutants that the CPPs address.

73. Knowledge of locations and basic operating information at CAFOs and other 

agricultural facilities also assists the public in monitoring state integrated water quality 

assessment reports prepared under sections 305(b) and 303(d) of the CWA. 33 U.S.C. §§

1313(d), 1315(b). Section 305(b) requires states to submit to the EPA biennial reports that 

address, among other things, a description of the water quality of navigable waters in the state; 

an analysis of the extent to which navigable waters in the state provide for the protection of 

wildlife; an analysis of the extent to which eliminating the discharge of pollution and a protective 

level of water quality has been or will be achieved, as well as recommendations of additional 

actions necessary to achieve such objectives; an estimate of the costs and benefits of achieving 

such objectives; and a description of the nature and extent of nonpoint sources of pollutants, 

recommendations as to programs that must be undertaken to control each category of nonpoint 

sources, and cost estimates of such programs. See 33 U.S.C. § 1315(b). Section 305(b) reports 
54

are EPA’s primary vehicle for informing Congress and the public about water quality conditions 

in states. See National Water Quality Inventory Report to Congress, available at

http://water.epa.gov/lawsregs/guidance/cwa/305b/index.cfm. The breadth of the issues these 

reports address in each state, as well as the importance placed on them, render public 

involvement vital. Citizen review may be better informed, and hence more valuable, if members 

of the public are knowledgeable about the locations and operations of potential sources of 

pollutants in individual states. In the case of CAFOs, for example, citizens will only be able to 

evaluate the accuracy of the reports if they understand whether agricultural operations are 

located near water quality impairments, the sizes of such operations, and whether such

operations have implemented water quality controls. 

74. The September 2008 GAO Report, described in Paragraph 15 of the Declaration, 

recommended that the EPA develop a national inventory of permitted CAFOs. Disclosing the 

CAFO information would serve the public interest of ensuring the accuracy of EPA’s national 

inventory of CAFOs.

75. Balancing the privacy interests with public interests of the ten states’ CAFO 

information. After identifying the privacy interests and public interests of a subset of the ten 

states’ CAFO information, the EPA balanced the two competing interests against one another to 

determine whether disclosure would constitute a clearly unwarranted invasion of personal 

privacy. In exercising this balancing, the EPA considered the following factors relevant to the 

weight of the privacy interests: (1) CAFO owners or operators may live in close proximity to 

their animals; (2) the CAFO information could possibly be used by groups that “oppose [the 

Agricultural Stakeholder’s] members businesses”; and (3) general privacy and security concerns 

regarding the release of the CAFO information. See ¶ 37 of the Declaration, Exhibit 18. The 
55

Agency also considered that much of the information pertains to businesses, including sole 

proprietorships and closely-held corporations. In evaluating the weight of the public interest of 

disclosure, the EPA reviewed all of the information from the ten states and determined whether 

release of the information sheds light on the Agency’s performance of its statutory duties. After 

balancing the two interests against each other, the EPA reached two conclusions.

76. First, the EPA found that a subset of CAFO information from the ten states that 

pertain to unpermitted facilities and facilities that are not subject to federal or state mandatory

permitting disclosure requirements – such as individual names, phone numbers, email addresses, 

individual mailing addresses (as opposed to business or facility addresses) and notes unrelated to 

a facility’s operation – implicates a “substantial” privacy interest that outweighed the public 

interest of disclosure. Therefore, the EPA withheld this CAFO information under Exemption 6. 

The EPA found that unpermitted facilities and facilities that are not subject to federal or state 

mandatory permitting disclosure requirements possessed a greater expectation of privacy than 

permitted facilities that were subject to mandatory disclosure permitting disclosure requirements. 

In addition, with respect to these facilities, the EPA found that individual names, phone numbers, 

email addresses, individual mailing addresses (as opposed to business or facility addresses) and 

notes unrelated to these facilities’ operations did not provide insight into the Agency’s 

implementation of the CWA; thus, the privacy interest of this subset of CAFO information from 

the ten states outweighed the public interest of disclosure. Given these considerations, the EPA 

concluded that disclosing information about facilities not subject to federal or state mandatory

permitting disclosure requirements)—specifically individual names, phone numbers, email 

addresses, individual mailing addresses and notes unrelated to these facilities’ operations—
56

would constitute a clearly unwarranted invasion of personal privacy and, therefore, withheld the 

information pursuant to Exemption 6. 

77. Second, the EPA determined that other CAFO information related to the 

environmental consequences of CAFO discharges – such as the number of animals, size of the 

operation, locations of animal feeding operations, and other operational information – did not 

implicate a “substantial” privacy interest. The EPA also concluded that even if these data 

elements possessed a privacy interest, the public interest in disclosing the number, size, and 

locations of animal feeding operations outweighed the privacy interest. The EPA determined 

this information was not subject to protection under FOIA Exemption 6 and, accordingly, 

released this CAFO information. 

78. In reaching this conclusion, the EPA balanced the competing privacy and public 

interests. The number of animals, size of the operation, locations of animal feeding operations, 

and other operational information of facilities not subject to federal or state mandatory

permitting disclosure requirements relate primarily to businesses or business operations. 

Although CAFO owners and operators may live in close proximity to their animals, the 

information sheds light on the Agency’s implementation of the CWA. See ¶¶ 63-74 of this

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

facility may discharge is essential information needed to carry out the CWA. Id. at ¶ 19. The 

information helps citizens work in partnership with the EPA and states to protect and improve 

water quality and public health by informing the public about how effectively the EPA is 

administering its CWA authorities to address pollution from agriculture. Taking into account 

this significant public interest, the EPA concluded that the privacy interest of withholding 

information on the number of animals, size of the operation, locations of animal feeding 
57

operations, and other operational information of facilities did not meet, let alone exceed, the 

weight of the public interests. Thus, the EPA found that disclosure would not constitute a clearly 

unwarranted invasion of privacy and information was not subject to protection under FOIA 

Exemption 6.

79. Balancing the privacy interests with the public interests of the remaining CAFO 

information. The EPA determined that CAFO information pertaining to (1) nineteen states, (2)

the consolidated spreadsheets from the EPA data systems (ICIS-NPDES and PCS) and EPA 

Regions 3 and 5, and (3) ten states’ NPDES or state permitted facilities that were subject to 

mandatory disclosure laws were not subject to the privacy protections of FOIA Exemption 6. 

This conclusion was based on EPA’s thorough investigation, which confirmed that this CAFO 

information was publicly available on EPA’s or state websites, subject to mandatory disclosure 

under state or federal law, or did not contain information that implicates a privacy interest. See 

¶ 42 of the Declaration. The EPA also determined that this CAFO information was not obscure 

because: (1) for thirteen states, the information was identical or nearly identical in form and 

content on the publicly available websites at the time the information was released; (2) the EPA

consistently releases NPDES permitting information subject to mandatory disclosure 

requirements through its publicly available data systems; and (3) members of the public can 

access the same information the EPA obtained from states through the mandatory disclosure 

requirements of state laws. Given these reasons, the EPA determined that CAFO information 

does not have a “substantial” privacy interest, and the CAFO facilities (and their owners) have 

no expectation of privacy on CAFO information that is well known or widely available within 

the public domain. 
58

80. The EPA also determined that even if a privacy interest may exist, the weight of 

public interest in releasing this information (see Paragraphs 63-74 of this Declaration) far 

exceeded any privacy interest. After completing its balancing of the contrasting interests, the 

EPA determined that the information pertaining to the nineteen states and the consolidated 

spreadsheets from the EPA data systems and EPA Regions 3 and 5 were not subject to FOIA 

Exemption 6 protections, and accordingly, the Agency released the information in full to 

Earthjustice and Pew-NRDC.

In accordance with 28 U.S.C. § 1746, I affirm under penalty of perjury that the foregoing 

declaration is true and correct.

Executed this 17th day of April, 2014.

Deborah G. Nagle

Director of the Water Permits Division 

U.S. Environmental Protection Agency