May 28, 2010
EPA-833-R-10-006
United States Environmental
Protection Agency
Off ice of Water
Office of Wastewater Management
Water Permits Division
Washington, D.C. 20460
implementation Guidance on
CAFO Regulations -
CAFOs That Discharge or Are
Proposing to Discharge
I. Overview of regulatory
requirements
The revised provision at 40 CFR 122.23(d) requires
all concentrated animal feeding operations (CAFOs)
that discharge or propose to discharge to seek
National Pollutant Discharge Elimination System
(NPDES) permit coverage. Section 40 CFR 122.23(d)
also provides that a "CAFO proposes to discharge if
it is designed, constructed, operated, or maintained
such that a discharge will occur." This requirement
to seek NPDES permit coverage applies to all owners
and operators of CAFOs1 that discharge or propose
to discharge regardless of the volume or duration of
the discharge. For CAFOs that already have permit
coverage, permit coverage must be maintained by
applying for a new permit at least 180 days prior to
expiration of the existing permit (or as provided by
the permitting authority) unless the CAFO will not
discharge or propose to discharge when the permit
expires. 40 CFR 122.23(g). It is the responsibility of
the CAFO owner or operator to seek authorization
to discharge at the time they propose to discharge, if
they have not already done so. 40 CFR 122.23(f). Any
CAFO that is required to seek or maintain permit cov-
erage and fails to do so may be subject to enforcement.
See 73 Fed. Reg. 70,418, 70,423-25 (Nov. 20, 2008).
As discussed in the preamble to the 2008 final rule,
unlike the 2003 rule, which categorically required a
permit for any CAFO with a "potential to discharge,"
the revised regulations call for a case-by-case evalu-
ation by the CAFO owner or operator as to whether
the CAFO discharges or proposes to discharge based
on actual design, construction, operation, and main-
tenance. "Potential" connotes the possibility that
there might—as opposed to will—be a discharge.
In contrast to the 2003 rule, the 2008 revised rule
involves a case-by-case assessment by each CAFO
to determine whether the CAFO in question, due to
its individual attributes, discharges or proposes to
discharge. Therefore, 40 CFR 122.23(d)(l) requires
only CAFOs that actually discharge to seek permit
coverage and clarifies that a CAFO proposes to
discharge if based on an objective assessment it is
designed, constructed, operated, or maintained such
that a discharge will occur, not simply such that it
might occur. See 73 Fed. Reg. 70,423.
EPA contemplates that CAFO operators will objec-
tively assess whether a discharge from the CAFO,
including from the production area and any land
application areas under the control of the CAFO,
is occurring or will occur for purposes of determin-
ing whether to seek permit coverage. 73 Fed. Reg.
70,423. An operator of an unpermitted CAFO is
never authorized to discharge from the CAFO under
Clean Water Act § 301 (a). Under 40 CFR 122.23(e),
discharges from the CAFO include discharges of
manure, litter, or process wastewater from land appli-
cation areas under the control of the CAFO that are
1 The Clean Water Act regulates the conduct of persons, which includes the owners and operators of CAFOs, rather than the facilities or their
discharges. To improve readability in this document, reference is made to "CAFOs" as well as "owners" and "operators" of CAFOs. No change in
meaning is intended.
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not exempt as "agricultural stormwater discharges."
Agricultural stormwater discharges are excluded
from the definition of the term "point source" in
section 504(14) of the CWA, 33 U.S.C. 1362(14). The
CAFO NPDES regulations provide that precipita-
tion-related discharges that qualify as agricultural
stormwater discharges from land application areas at
a CAFO are not subject to NPDES permit require-
ments. For discharges from the land application area
to qualify as agricultural stormwater, manure and
wastewater must be applied in accordance with site
specific practices that ensure appropriate agricultural
utilization of nutrients. 40 CFR 122.23(e).
Discharges from CAFOs are not limited to manure
or manure nutrients, as the Clean Water Act and its
implementing regulations prohibit the discharge of
"any pollutant" from a point source. Pollutant means
"dredged spoil, solid waste, incinerator residue,
sewage, garbage, sewage sludge, munitions, chemical
wastes, biological materials, radioactive materials,
heat, wrecked or discarded equipment, rock, sand,
cellar dirt and industrial, municipal, and agricultural
waste discharged into water." 33 U.S.C. 1362(6). See
also 40 CFR § 122.2.
II. What are the key elements of an
objective assessment?
EPA regulations require only CAFOs that discharge
or propose to discharge to seek permit coverage
and clarify that a CAFO proposes to discharge if
"based on an objective assessment it is designed,
constructed, operated, or maintained such that a dis-
charge will occur." 73 Fed. Reg. 70,423. The owner
or operator of a CAFO should make an objective
assessment of the operation to determine whether
the CAFO will discharge based on a site-specific
evaluation of the actual design, construction, opera-
tion, and maintenance of the facility. Such an objec-
tive assessment should take into account not only the
manmade aspects of the CAFO itself, but climatic,
hydrologic, topographic, and other characteristics
beyond the operator's control that affect whether the
CAFO will discharge given the design, construction,
operation, or maintenance of the CAFO. An objec-
tive assessment provides a common basis for both
the CAFO and the permitting authority to deter-
mine whether the CAFO discharges or proposes to
discharge.
Any objective assessment should consider the pos-
sible sources of pollutants at the CAFO, such as ani-
mal confinement areas; feed storage areas; manure,
litter, and process wastewater storage areas; confine-
ment house ventilation fan exhaust; land-applied
manure, litter, or process wastewater; and other site
specific sources of pollutants, as well as any pathways
for pollutants from the CAFO to reach waters of the
U.S.Some factors that are relevant to a CAFO's objec-
tive assessment include, but are not limited to:
• Proximity of the CAFO to waters of the United
States, and if the CAFO is upslope from waters
of the U.S.;
• Climatic conditions, including whether precipi-
tation exceeds evaporation;
• Discharge history;
• Type of waste storage system, and the capacity,
quality of construction and presence and extent
of built-in safeguards of the storage system;
• Management of mortalities;
• Standard operating procedures and quality of
maintenance protocols, e.g., for equipment,
infrastructure, etc.;
• Drainage of production area;
• Exposure of animal waste and feed to precipita-
tion or other water; and
• If the CAFO land applies, method for nutrient
management planning and source of technical
standards (e.g., technical standards established
by the Director).
These are examples of factors that build an objec-
tive assessment conducted by a CAFO considering
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whether it discharges or proposes to discharge or by
the permitting authority when evaluating whether
a particular facility is required to seek coverage.
When determining whether to seek permit coverage,
a CAFO owner or operator should use the results of
their objective assessment, relying on factual infor-
mation, to make an informed decision about whether
the CAFO discharges or proposes to discharge.
It may be that no one factor would lead to a con-
clusion that a CAFO discharges or proposes to
discharge; therefore, various factors should be
considered collectively. For example, an owner or
operator might need to consider the following fac-
tors collectively as part of the objective assessment:
(a) the proximity to a water of the U.S., (b) whether
production areas are exposed to precipitation,
(c) whether an open surface manure storage structure
has adequate capacity for manure and wastewater
generated during the critical storage period, taking
into consideration the plans for manure utilization,
and (d) consideration of historic chronic precipita-
tion events.
If the CAFO has discharged, the CAFO would be
a CAFO that discharges unless the circumstances
giving rise to the discharge have changed and the
cause of the discharge has been corrected such that
the CAFO is not discharging and will not discharge
based on the design, construction, operation, and/or
maintenance of the facility. See 73 Fed. Reg. 70,423.
This is true for CAFOs that have continuously dis-
charged pollutants as well as those with intermittent
and sporadic discharges to waters of the U.S.2 How-
ever, as illustrated by the list above, a past discharge
is not the only factor that permitting authorities
and operators should
consider in assessing
whether the CAFO
discharges or proposes
to discharge. Even if it
has never previously
discharged, the CAFO
could be proposing to
discharge due to design
and construction of
Note:
A permitted CAFO may discharge
according to permit conditions
and thereby would not be
discharging in violation of the
CWA. However, an unpermitted
CAFO may not lawfully discharge
under any circumstances because
section 301 (a) of the Clean Water
Act prohibits all unpermitted
discharges.
the facility, manage-
ment practices, or other site-specific characteristics,
whether within the CAFO owner/operator's control
or not.
To assist CAFO operators in making an objective
assessment and to provide assurance for CAFOs that
determine they are not required to obtain permit
coverage, the CAFO rule provides a voluntary no
discharge certification option. In states and Indian
Country where EPA is the permitting authority and
in any authorized state that adopts the certifica-
tion option,3 an unpermitted CAFO has the option
to certify that it does not discharge or propose to
discharge.4 EPA encourages CAFOs that choose not
to certify, as well as CAFOs in authorized states that
do not adopt the certification option, to consider
the criteria for certification eligibility, including
a rigorous evaluation of the production area and
implementation of a nutrient management plan,
when deciding whether to seek permit coverage or
renew existing permit coverage. The certification
eligibility criteria provide one basis for making an
objective assessment of whether a CAFO discharges
or proposes to discharge. These criteria are provided
2 Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Foundation, 484 U.S. 49, 57 (1987).
3 The no discharge certification is a voluntary option for CAFOs that are not subject to NPDES permitting requirements. Therefore, states are not
required to adopt the certification option into their CAFO program. States only need to adopt the certification option prior to exercising this option
if they choose to make it available to CAFOs in their state. There is no specified time frame by which a state would need to adopt the certification
option, except that if a state chooses to make the option available to CAFOs, it must revise its program accordingly prior to accepting certifications.
4 In the event of a discharge from a properly certified CAFO, the CAFO will not be liable for prior failure to seek permit coverage. The CAFO, however,
remains liable for discharging without an NPDES permit. See 73 Fed. Reg. 70,426.
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in 40 CFR 122.23(i)(2) and described in the preamble
to the 2008 CAFO rule. 73 Fed. Reg. 70,427-30.
For any unpermitted CAFO the objective assessment
is an ongoing process as CAFO operations change
over time. A CAFO cannot ensure compliance with
the CWA by evaluating its design, construction,
operation, and maintenance at one fixed point in
time. As discussed above, the revised regulations
require a CAFO to seek permit coverage when it
proposes to discharge. Therefore, a CAFO may cor-
rectly conclude based on an objective assessment
that it is not required to seek permit coverage, and
then subsequently be subject to the requirement to
seek permit coverage due to changed circumstances.
EPA recommends that an unpermitted CAFO keep
records of its operations and maintenance and
continually assess whether current circumstances
warrant NPDES permit coverage. A CAFO's records
should include, among other things, drainage maps
that reflect current conditions, operating procedures
and inspection records, and records of nutrient
management planning and how land application
protocols are being implemented.
III. Which CAFOs discharge or propose
to discharge?
As explained above, whether a CAFO discharges or
proposes to discharge will be determined by consid-
ering separately and in combination a range of fac-
tors specific to the CAFO. The factors listed in this
section do not indicate that every CAFO having one
particular attribute identified here will discharge.
Instead, these factors are relevant to the site-specific
assessment of the CAFO's design, construction,
operation, and maintenance.
Design, construction, operation, and maintenance
are equally important components of a CAFO's oper-
ation and can make the difference between a CAFO
that "discharges or proposes to discharge" and one
that does not need to seek permit coverage. Relevant
areas of consideration in making a determination of
whether a CAFO discharges or proposes to discharge
include:
• Animal confinement area;
• Waste storage and handling;
• Mortality management; and
• Land application practices.
Factors associated with these areas are discussed
below in section III.A. In many ways there are varia-
tions among animal sectors that inform how CAFOs
and permitting authorities should be evaluating
which facilities discharge or propose to discharge. The
discussion below also covers important design, con-
struction, operation, and maintenance factors relating
to the dairy, beef cattle, swine and poultry sectors.
A. All Animal Sectors
Factors relevant to the CAFO's determination of
whether it discharges or proposes to discharge that
apply to all types of livestock, including CAFOs
raising animal types not specifically discussed in this
guidance, such as veal calves, turkeys, ducks, horses,
and goats, are discussed below.
The Animal Confinement Area
The CAFO production area includes the animal
confinement area, which includes, but is not limited
to, open lots, housed lots, feedlots, confinement
houses, stall barns, free stall barns, milkrooms,
milking centers, cowyards, barnyards, medication
pens, walkers, animal walkways and stables. 40 CFR
122.23(b)(8). A CAFO's animal confinement area
should be designed and operated in such a way that
clean water diversion mechanisms, if any, are fully
functional, and all process wastewater is collected and
stored. All process wastewater generated at the site
should be taken into account when determining the
adequacy of the CAFO's storage capacity. Water that
comes into contact with any raw materials, products,
or byproducts including manure, litter, feed, milk,
eggs or bedding is process wastewater and cannot be
discharged unless authorized by an NPDES permit.
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Factors to consider for whether a CAFO discharges
or proposes to discharge based on its animal confine-
ment area include:
• Whether there are structural controls in place
to divert clean water and what condition they
are in;
• Inspection and maintenance schedules for clean
water diversion controls, such as berms, gutters
and channels;
• Whether design and maintenance of pipes,
valves, ditches, drains, etc., associated with the
collection of manure and wastewater from the
animal confinement area prevents spills and
leakage;
• Whether secondary containment, if applicable,
to manage contaminated runoff is designed,
operated and maintained to handle all pollutant
loads; and
• Whether the animal confinement area prevents
animals from having direct contact with waters
of the U.S.
Waste Storage and Handling
Siting, design and construction aspects of stor-
age structures are important considerations when
determining whether a CAFO has an adequate waste
storage and handling system in place. In assessing
whether a CAFO discharges or proposes to dis-
charge, the number of animals and the amount of
manure, litter, or process wastewater anticipated to
be generated during the minimum critical storage
period5 should be considered. Operation and main-
tenance factors include the scheduling of regular
appraisals of all storage structures to ensure integrity
of berms, valves, other control devices, and the level
of liquid impoundments and implementation of
these schedules through a detailed up-to-date waste
utilization plan, such as a nutrient management plan
(NMP).
Waste storage and handling practices differ depend-
ing on whether the CAFO's waste handling system
is dry, liquid, or a combination of the two. For dry
manure handling systems, it is important to consider
Photo 1. This stockpile is up to eight feet
tall and sixty feet long without cover or
containment. A creek runs through the
wooded area behind the pile. Any runoff from
the stockpile to waters of the U.S. would be
a discharge from the CAFO. (Source: EPA
Region 7.)
5 This term means the minimum storage period that provides the capacity to store all manure and process wastewater plus precipitation events less
evaporation until optimal land application or other drawdown of storage (e.g., for transfer off-site). See also Managing Manure Nutrients at Concentrated
Animal Feeding Operations 2-12 (EPA, 2004).
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the practices for moving manure or litter from ani-
mal confinement areas to storage areas and whether
the CAFO has sufficient capacity to store dry manure
or litter in covered buildings or otherwise manage
it to keep it dry or contain all runoff. Stockpiles of
manure or litter are part of a CAFO's production
area regardless of where they are located. 40 CFR
122.23(b)(8). Relevant factors with respect to stock-
piles of manure or litter, whether dry or wet, include
proximity to waters of the U.S. and slope of land,
exposure to precipitation, whether there are struc-
tural controls such as pads, berms or covers, duration
of storage, and management of pile removal.
For liquid handling systems, it is important to con-
sider whether the waste containment structure(s) is
designed and constructed to eliminate the possibility
of overflow and/or managed in a manner to prevent
any overflow from reaching a water of the U.S. This
includes maintaining capacity for freeboard and
direct precipitation. See photo 2, which illustrates
a lagoon with vegetation growing in it. Growth
of vegetation in a storage structure decreases the
capacity of the system and may be an indication that
manure solids have not been removed at appropriate
intervals to maintain balance in the system. Impor-
tant factors also include whether the CAFO main-
tains the structural integrity of the pond or lagoon
and manages levels of manure, wastewater and sludge
appropriately. Factors that may lead to structural
failure include erosion, growth of trees or shrubs on
berms, large animals walking on containment berms,
and burrowing wildlife. A proper maintenance plan
should address these factors. Embankments of any
waste containment structure should be well intact,
dry, and have sufficient access for equipment such as
pumps and agitators. Pooling on the side of the pond
or lagoon could be indicative of leaking.
A CAFO with a liquid storage structure designed
for the 25-year, 24-hour storm is not categorically
excluded from the requirement to seek permit cover-
age based on this design standard.6 Larger storms
and chronic rainfall events do occur, and production
Water of the US
Lagoon overflow
Photo 2. This lagoon at a dairy CAFO is upslope from a water of the U.S. and overflowing. In addition, cows stand on the
embankments of the far side of the lagoon, which may degrade the embankments over time, and vegetation is growing in
the lagoon, which indicates poor maintenance. (Source: EPA Region 6.)
In many cases the BMPs implemented by an unpermitted CAFO to ensure that it does not discharge or propose to discharge will be more rigorous
than those required for permitted CAFOs, because the operator of an unpermitted CAFO is never authorized to discharge under CWA section 301(a).
Permitted CAFOs have greater flexibility because, in addition to being authorized to discharge under the circumstances prescribed by the permit,
other discharges can be excused when the conditions contained in EPA's upset and/or bypass regulations are met (see 40 CFR 122.41(m) and (n)).
73 Fed. Reg. 70,425.
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areas built to the 25-year, 24-hour storm design stan-
dard can and do discharge during such precipitation
events. A permit is required to authorize a discharge
under these circumstances. Proper operation and
maintenance of the structure should also be consid-
ered as part of the objective assessment, such as steps
to ensure there are no leaks or other system failures
unrelated to storm events.
Mortality Management
The CAFO's production area also includes "any area
used in the storage, handling, treatment, or disposal
of mortalities." 40 CFR 122.23(b)(8). Relevant
factors to consider in assessing whether the CAFO
discharges or proposes to discharge in connection
with mortality management include the type(s) of
animal(s) maintained at the operation, methods for
handling and disposal of animal mortalities, state
and local laws, mortality rate, storage capabilities and
other site specific factors. For example, if a CAFO
relies on a rendering facility to pick up carcasses, the
CAFO owner or operator should consider whether
the CAFO has adequate storage to accommodate all
mortalities between pick-ups and whether the storage
Photo 3. This CAFO is discharging by disposing of mortalities
in a conveyance that drains to a water of the U.S. (Source: EPA
Region 4.)
method ensures that all clean water remains clean, or
captures all process wastewater generated from water
coming into contact with the carcasses (i.e., nothing
reaches waters of the U.S.). A CAFO may want to
consider a plan for dealing with catastrophic mortal-
ity events.
Land Application Areas
As stated in 40 CFR 122.23(e), a discharge from a
land application area under the control of a CAFO
is subject to NPDES permit requirements, except
where it is an agricultural stormwater discharge. The
Clean Water Act definition of point source excludes
discharges of agricultural stormwater and such dis-
charges are therefore not subject to permit require-
ments.7 A CAFO does not propose to discharge if it
land-applies manure, litter, or process wastewater to
land under its control such that the only discharges
from the CAFO are land application area discharges
that qualify as agricultural stormwater.
If a CAFO does not land-apply, or relies on a com-
bination of land application and off-site transfer,
another relevant factor is the CAFO's plans for
disposition of all the manure and process wastewater
generated at the facility, e.g., manure broker agree-
ments, sales contracts, etc. Below are some consid-
erations related to whether CAFOs that land apply
manure, litter, and process wastewater discharge or
propose to discharge. Although not an exhaustive
list, these considerations are some relevant factors to
be accounted for when evaluating whether a CAFO's
land application practices mean that the CAFO
discharges or proposes to discharge.
Protocols for Land Application. In order for precipita-
tion-related discharges to be exempt from NPDES
permitting requirements under 40 CFR 122.23(e),
CAFOs must land apply manure, litter, and process
33 U.S.C 1362(14). "The term 'point source' means any discernible, confined and discrete conveyance, including but not limited to any pipe, ditch,
channel, tunnel, conduit, well, discrete fissure, container, rolling stock, concentrated animal feeding operation, or vessel or other floating craft,
from which pollutants are or may be discharged. This term does not include agricultural stormwater discharges and return flows from irrigated
agriculture."
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Regulatory Citations - 40 CFR 122.23(e) Land application discharges from a CAFO are subject to NPDES requirements."... For
purposes of this paragraph, where the manure, litter or process wastewater has been applied in accordance with site specific management practices
that ensure appropriate agricultural utilization of the nutrients in the manure, litter or process wastewater, as specified in §122.42(e)(1)(vi)-(ix), a
precipitation-related discharge of manure, litter or process wastewater from land areas under the control of a CAFO is an agricultural stormwater
discharge."
40 CFR 122.42(e)(1) Requirements to develop and implement a nutrient management plan.
(vi) Identify appropriate site-specific conservation practices to be implemented, including buffers or equivalent practices, to control runoff of pollutants
to waters of the US;
(vii) Identify protocols for appropriate testing of manure, litter, process wastewater, and soil;
(viii) Establish protocols to land apply manure, littler and process wastewater in accordance with site specific nutrient management practices that
ensure appropriate agricultural utilization of the nutrients in the manure, litter or process wastewater; and
(ix) Identify specific records that will be maintained to document the implementation and management of the minimum elements described in
paragraphs (e)(1)(i)-(e)(1)(viii) of this section.
wastewater in accordance with protocols that
ensure appropriate utilization of the nutrients in
the manure. Over-application of manure, litter, or
process wastewater is a source of excess nutrients in
surface waters, and such practices are inconsistent
with the regulatory definition of agricultural storm-
water discharges from CAFOs. The technical stan-
dards established by the state permitting authority
in accordance with 40 CFR 123.36 provide important
benchmarks for assessing whether a CAFO's pro-
tocols for land application ensure all precipitation-
related discharges from land application areas will
qualify as agricultural stormwater discharges.
An important factor for assessing a CAFO's land
application protocols is whether the protocols
include practices to account for certain soil char-
acteristics, such as incorporating manure into the
soil where the soil, terrain or other factors indicate
that incorporation would reduce pollutant transport
from the field to surface water. Other relevant factors
include how the protocols take into account timing
restrictions for manure related to saturated soil, wet
weather and frozen or snow-covered ground, and
the results of regular soil and manure tests to calcu-
late the amount of manure nutrients to be applied.
In addition, site-specific conservation practices to
control runoff of pollutants to waters of the U.S.
(e.g., buffers or equivalent practices) are a factor for
whether precipitation-related discharges qualify as
agricultural stormwater (see 40 CFR 122.42(e)(l)
(vi)). Benefits from conservation practices for land
application include more efficient use of nutrients
and reducing soil erosion.
Dry Weather Discharges. Dry weather discharges from
land application areas, unlike wet weather discharges
that may be exempt agricultural stormwater, are not
stormwater and therefore not agricultural storm-
water discharges. Therefore, if a CAFO has a dry
weather discharge from its land application area, the
discharge is considered a land application discharge
from the CAFO subject to NPDES permit require-
ments (see regulatory citation in text box above).
Operation and maintenance of manure application
equipment, such as hoses and automatic shut-off
valves, are among the factors directly related to this
consideration. See photo 4.
8
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Photo 4. This CAFO is discharging during
dry weather by spraying manure/wastewater
into a ditch that flows to a water of the
U.S. In addition, inadequate edge-of-field
conservation practices may be insufficient to
control runoff (see § 122.42(e)(1)(vi)), to the
extent necessary to qualify as agricultural
stormwater discharges (see § 122.23(e)).
(Source: EPA Region 4.)
Recordkeeping for Land Application Area(s). For
discharges from CAFO land application areas to
qualify for the agricultural stormwater exemption
the CAFO must maintain records in accordance
with 40 CFR 122.42(e)(l)(ix). (Also see §122.23(e).)
Written records of application amounts, timing, crop
nutrient needs, soil and manure testing, conservation
practices and other important factors are essential
for an assessment of whether there are point source
discharges from a CAFO's land application areas.
Typical documentation of how a CAFO implements
in-field and edge-of-field conservation practices could
include records related to maintenance of terraces,
vegetated buffers, riparian buffers or other practices.
Relationship Between Adequate Storage and Land Appli-
cation. The link between adequate storage of manure,
litter, and process wastewater and land application
practices is one of the most critical considerations
in developing and implementing nutrient man-
agement planning that ensures adequate manure
storage capacity and proper agricultural utilization
of manure nutrients. Different climates and ter-
rains are relevant to this relationship as well, and
should be taken into consideration when evaluating
whether a CAFO has sufficient storage (or made
other appropriate accommodation) for manure, litter,
and process wastewater such that land application
is not needed during times when either prohibited
or inappropriate due to climatic or soil conditions.
Tools, such as the Soil Plant Air Water (SPAW)
Hydrology Tool, are available to assist in planning
the frequency, intervals and quantities at which
nutrients can properly be land-applied on each field
taking into consideration the best available local
climate data. For further discussion of SPAW, see
the preamble to the 2008 CAFO rule, 73 Fed. Reg.
70,461-62.
Some states may provide under state law that
agricultural operations can land-apply, perhaps on
frozen or snow-covered ground, in "emergencies"
under prescribed circumstances. Land application
in accordance with such state laws may result in
discharges that do not qualify as agricultural storm-
water discharges. In some cases, land application
under these same circumstances will not "ensure the
appropriate agricultural utilization of nutrients" and
therefore any precipitation-related discharges would
not be considered "agricultural stormwater." It is
important to consider that although a practice may
be authorized under state law, CAFOs adhering to
that practice will nevertheless be proposing to dis-
charge for purposes of the NPDES program if they
are designed, constructed, operated, and maintained
such that a discharge will occur.
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See the text box on page 14 for other design,
construction, operation, and maintenance factors
generally applicable to all animal sectors.
B. Dairy Sector
Dairy operations have design and construction
considerations that are relevant to the determination
of whether the CAFO discharges or proposes to dis-
charge. For example, a dairy operation constructed
with floor drains or catch basins that outlet to a sur-
face water is a CAFO that discharges. Therefore, it is
important to consider whether a dairy directs waste
streams from barns to a proper containment struc-
ture or if waste is managed in a manner causing it to
be discharged from the barns, including the milking
parlor, through a conveyance to a water of the U.S.
Additionally, dairies should consider whether all
process-generated wastewater is contained, includ-
ing wastewater from commodity barns and silage
bunkers and from portions of the production area
that are uncovered, such as feed storage areas, animal
pens and loafing areas. See photo 5.
Photo 5. The dairy CAFO pictured above has had discharges
from the confinement area bypassing the waste containment
storage structure (denoted by red dashed line). (Source: EPA
Region 4.)
Dairy operations in warm climates typically have
cooling ponds designed for the purpose of cooling lac-
tating cows. A cooling pond for dairy cattle will have a
means for fresh water to enter, unlike a stagnant pond,
lagoon, wallow, or mud hole. Any cooling pond that
is or has been in use also contains process wastewater
because of animal contact (see definition at 40 CFR
122.23(b)(7)). Relevant factors include the location
relative to waters of the U.S. and the pond's design,
among other factors, when assessing whether there
are or will be discharges from a cooling pond. Also it
is important to consider whether water intentionally
removed from the cooling pond is properly managed,
e.g., pumped to a retention pond (see photo 6).
CAFO cooling
pond
Photo 6. This dairy CAFO cooling pond is designed to have a
pipe discharge via a conveyance to a water of the United States.
Use of this cooling pond results in the CAFO discharging or
proposing to discharge. (Source: EPA Region 4.)
See the text box on page 14 for other design,
construction, operation, and maintenance factors
specific to dairy operations.
C Beef Cattle Sector
While some cattle are kept in confinement buildings,
most beef operations are on outdoor feedlots and may
have open sheds, windbreaks and/or shades. When
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Photo 7. This section of the beef feedlot
production area has an outlet for manure and
process wastewater to a roadside ditch. If the
ditch is, or conveys process wastewater to, a
water of the U.S., then the CAFO discharges or
proposes to discharge. (Source: EPA Region 7.)
determining whether a beef cattle operation dis-
charges or proposes to discharge, an important con-
sideration is if the feedlot has sufficient containment
for all manure, wastewater and direct precipitation
for the minimum critical storage period. Because the
animals and manure are typically not housed under
roof at beef cattle operations it is particularly impor-
tant to consider climate and proximity to waters of
the U.S. when evaluating whether beef cattle opera-
tions propose to discharge, as well as the design of
the animal pens, which at some operations are sloped
to drain to waters of U.S.
Other factors that may be more common in this
animal sector include:
• Management of trough water;
• Management of uncovered feed/silage;
• Manure stockpiling and composting;
• Whether animals have direct contact with
waters of the U.S.; and
• Systems to manage process wastewater gener-
ated from all uncovered areas where animals
have access.
See the text box on page 14 for other design,
construction, operation, and maintenance factors
specific to beef cattle operations.
D. Swine Sector
In evaluating whether a swine operation discharges
or proposes to discharge, in addition to the fac-
tors discussed under section III.A, relevant factors
include considerations specifically related to manure
handling systems that are common at these types of
operations, including in-house manure pits.
Some swine operations with in-house manure pits
(where manure is collected in a pit below the animal
confinement house) are designed with enough capac-
ity to hold all manure and wastewater generated in
the house until pumped out for land application.
These are commonly referred to as deep-pit sys-
tems. Relevant factors to consider for CAFOs with
such systems include management of wastewater
and manure slurry removal from the pit, including
whether the CAFO has appropriate pump-out sched-
ules and maintenance of hoses, which can run from
the pit to the application field.
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Other swine operations have in-house pits that
provide only temporary containment before removal
of the manure and wastewater to a pond, lagoon, or
above-ground storage tank. Therefore, systems at
some swine operations rely more heavily on pumps
and pipes than at other swine operations. Problems
associated with the following aspects of manure
management have been known to lead to discharges
and therefore should be considered when evaluating
whether an operation discharges or proposes to dis-
charge: pipe or hose ruptures; overflows from open
channels or collection pits; and direct discharges
from a waste containment structure such as a lagoon.
See photo 8.
Photo 8. An in-house pit in this swine barn is designed to have
manure transported from the pit to an earthen storage structure
through a pipe. Due to a pipe break, manure is leaking and
flowing downhill from the barn. (Source: EPA Region 5.)
See the text box on page 14 for other design,
construction, operation, and maintenance factors
specific to swine operations.
E. Poultry Sector
Most poultry operations are located on smaller par-
cels of land in comparison to other livestock sectors,
placing increased importance on proper management
of the potentially large amounts of manure, litter,
and process wastewater generated. Nutrient loads
from the poultry sector to surface waters are gener-
ally caused by rainfall coming in contact with dry
manure that is stacked in exposed areas, poor house-
keeping (see photo 9), and land application practices
that do not ensure the appropriate agricultural utili-
zation of nutrients. Therefore, relevant factors as to
whether a poultry operation discharges or proposes
to discharge include:
• Whether the operation has insufficient storage
capacity to accommodate litter removed from
houses between flocks and during whole-house
clean-outs;
• Whether management of clean-outs, stockpiles
and litter storage sheds is done in such a way
that contaminated runoff will reach waters of
the U.S.; and
• Whether the operation does not have adequate
available acreage for land application or other
arrangements in place (such as third-party
haulers) to utilize the nutrients generated at the
facility.
Photo 9. This storage structure may have inadequate capacity
for the amount of litter being stored. The area around the storage
shed drains to a water of the U.S. and does not have any runoff
controls. (Source: EPA Region 3.)
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CAFO operations with ventilated confinement houses
should consider a number of relevant factors, such as
the way water is drained from the site and proximity
to waters of the U.S., when assessing whether they
propose to discharge. Some poultry facilities are
designed to channel precipitation runoff from the
areas around the houses away from the confinement
area (see photo 10). If the CAFO is designed, con-
structed, operated, or maintained so that pollutants
from the houses will be transported in the runoff to
a water of the U.S., the facility is proposing to dis-
charge and must apply for an NPDES permit.
See the text box on page 14 for other design,
construction, operation, and maintenance factors
specific to poultry operations.
Photo 10. The photo shows a poultry
operation that was designed to have
precipitation drain away from houses through
a conveyance system that discharges to a
water of the U.S. If pollutants will be carried
by this conveyance system to waters of the
U.S., the facility is proposing to discharge.
(Source: EPA Region 3.)
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Examples of Factors to be Considered in Assessing Whether a CAFO Discharges or Proposes to
Discharge
ALL ANIMAL SECTORS
• Facility location, such as whether in a floodplain, slope, and proximity to waters of the U.S.
• Volume of manure, litter, or process wastewater generated
• Waste storage system and if designed, constructed, operated and maintained such that a discharge into a water of the U.S. will occur
• Management of storage, treatment and disposal of mortalities
• Amount of acreage to land-apply manure, litter, or process wastewater in accordance with appropriate practices and/or arrangements for disposing
of or other means of utilizing nutrients, such as transfer off-site
• Type and collective effect of conservation practices, e.g., setbacks and buffers, employed near surface waters, ditches, and other conduits to surface
waters to control the runoff of pollutants from land application areas
• Resources and protocols for proper operation and maintenance at all times of land application equipment, e.g., inspecting hoses and overseeing
automatic shut-off valves
• Management of feed and silage, including management/capture of silage leachate and runoff from feed and silage storage areas
DAIRY SECTOR
• Whether animals are housed under roofs at all times, and if not, management of manure and wastewater generated in loafing areas and other
outdoor areas with animal access
• Management of the calving area
• Management of cooling water and footbath water
• Storage or disposal of production area waste, including from milking parlors
• Management of bedding material
BEEF CATTLE SECTOR
• The capacity for manure and wastewater storage, including consideration of proper siting and management of stockpiles and capacity of solid
settling basins to hold direct precipitation
• The capacity, siting, and operation and maintenance practices for a vegetated treatment system, where applicable
• Management of manure composting areas
• Cattle access to surface water
SWINE SECTOR
• Management of pollutants from confinement houses, including consideration of type of confinement houses, pollutants expelled and deposited
outside of and around confinement houses from the ventilation system, and design of any drainage features that may relate to management of
process wastewater at the CAFO (i.e., whether a conveyance routes water through part of the CAFO and into a water of the United States)
• How manure and wastewater is collected and stored, such as in a deep pit under the confinement house or by a containment structure like a lagoon
• Identification of sources of pollutants, such as storage facilities and confinement house ventilation systems, and consideration of whether pollutants
come into contact with precipitation or other water to generate process wastewater
POULTRY SECTOR
• Management of pollutants from confinement houses, including consideration of type of confinement houses, pollutants expelled and deposited
outside of and around confinement houses from the ventilation system, and design of any drainage features that may relate to management of
process wastewater at the CAFO (i.e., whether a conveyance routes water through part of the CAFO and into a water of the United States)
• Identification of sources of pollutants, such as storage facilities, litter handling activities (e.g., cake-outs, crust-outs, whole house clean-outs, etc.),
poultry handling, and confinement house ventilation systems, and consideration of whether pollutants come into contact with precipitation or other
water to generate process wastewater
• For layer facilities, management of egg production and egg wash water.
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IV. Additional Resources
To obtain additional information about the CAFO
NPDES program, contact EPA headquarters,
(www.epa.gov/npdes/cafo/hqcontacts) or one of
the EPA regional offices (www.epa.gov/npdes/cafo/
regionalcontacts).
Updated resources for permit writers and producers
will be provided on-line, as they become available, at
www.epa.gov/npdes/cafo/publications.
Disclaimer
This guidance document does not change or substitute for any legal requirements, though it does provide clarification of some regulatory requirements.
While EPA has made every effort to ensure the accuracy of the discussion in this document, the obligations of the regulated community are determined
by the relevant statutes, regulations, or other legally binding requirements. This guidance document is not legally enforceable and does not confer legal
rights or impose legal obligations upon any member of the public, EPA, states, or any other agency. In the event of a conflict between the discussion in
this document and any statute or regulation, this document would not be controlling. The word "should" as used in this guidance document does not
connote a requirement, but does indicate EPA's strongly preferred approach to assure effective implementation of legal requirements. This guidance
may not apply in a particular situation based upon the circumstances, and EPA, states and Tribes retain the discretion to adopt approaches on a case-
by-case basis that differ from the recommendations of this guidance document where appropriate. Permitting authorities will make each permitting
decision on a case-by-case basis and will be guided by the applicable requirements of the CWA and implementing regulations, taking into account
comments and information presented at that time by interested persons regarding the appropriateness of applying these recommendations to the
particular situation. In addition, EPA may decide to revise this guidance document to reflect changes in EPA's approach to implementing the regulations
or to clarify and update text.
The Office of Wastewater Management, Office ofWater, U.S. Environmental Protection Agency has approved this guidance for publication. Mention of
trade names, products, or services does not convey and should not be interpreted as conveying official EPA approval, endorsement, or recommendation
for use.
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