Governmental Oversight of Discharges from Concentrated Animal Feeding Operations

As point sources of pollution in the United States, concentrated animal feeding operations (CAFOs) are subject to the National Pollution Discharge Elimination System permitting system requirements. Changes to federal regulations in 2003 and a 2005 court decision have increased the governmental oversight of CAFOs. Manure application to fields from “large CAFOs” that results in unpermitted discharges can be regulated under the Clean Water Act. The U.S. Environmental Protection Agency’s interpretation of agricultural stormwater discharges was approved so that unpermitted discharges may arise if an owner or operator of a CAFO fails to apply manure correctly. Owners and operators do not, however, have a duty to secure governmental permits in the absence of a discharge. Turning to the federal provisions regarding nutrient management plans, a court found that they were deficient. Moreover, the federal government needs to reconsider requirements that would reduce pathogens from entering surface waters. Although these developments should assist in reducing the impairment of U.S. waters, concern still exists. Greater oversight of nutrient management plans and enhanced enforcement efforts offer opportunities to provide greater assurance that CAFO owners and operators will not allow a discharge of pollutants to enter surface waters.