Concentrated Animal Feeding Operations (CAFOs)

The federal NPDES regulations had an exception to any animal feeding operation (AFO) being a CAFO because of its size if the facility only discharged to surface waters when a storm event equal to or greater than the twenty five year, twenty-four hour storm occurred. However, the federal and state National Pollutant Discharge Elimination System (NPDES) permit regulations, SC Regulation 61-9, were amended to remove this exception.

Based on this federal regulation change, Animal feeding operations (AFOs) became concentrated animal feeding operations (CAFOs) based on size (number of animals) unless the Department determines there is no potential for a discharge. However, the Environmental Protection Agency's changes to the NPDES regulations on CAFOs were appealed and the United States Court of Appeals for the Second Circuit issued a ruling in February 2005. In regards to requiring a CAFO to have a NPDES permit based on size and potential to discharge the court stated:

"the Clean Water Act gives the EPA jurisdiction to regulate and control only actual discharges – not potential discharges, and certainly not point sources themselves. See National Resources Defense Council v. EPA, 859 F.2d 156, 170 (D.C.Cir. 1988) (noting that “the [Act] does not empower the agency to regulate point sources themselves; rather, EPA’s jurisdiction under the operative statute is limited to regulating the discharge of pollutants”). To the extent that policy considerations do warrant changing the statutory scheme, “such considerations address themselves to Congress, not to the courts.” MCI Telecommunications Corp. v. AT&T, Co., 512 U.S. 218, 234 (1994) (citation omitted). EPA’s other arguments are also unavailing. The EPA principally attempts to derive support for its “duty to apply” provision from the statutory definition of point source. EPA argues that point source is defined to mean not only “any discernible, confined and discrete conveyance” from which pollutants “are” discharged, but also “any discernible, confined and discrete conveyance” from which pollutants “may be” discharged. 33 U.S.C. § 1362(14). The EPA cannot, however, point to any provision of the statute that gives operational effect to the “may be” language in the manner in which the EPA seeks to do so here."

Based on the Court's ruling, the applicability of the federal CAFO regulations are in a state of uncertainty until such time as the EPA addresses the issues that the Court remanded back to them. While SC has adopted the federal regulations, all facility management plans for new or expanding animal operations in SC are reviewed by the Department prior to permitting. Also, the public is given the opportunity to review the applications and provide input to the Department.

Further, in SC all animal operations are designed and permitted to not have point source discharges to surface waters. As such under the federal regulations as interpreted by the United States Court of Appeals for the Second Circuit, these types of facilities are not required to have an NPDES permit. Therefore, SC has determined that facilities that are designed and operated in accordance with our regulations and their permits do not require an NPDES permit at this time since these facilities have no potential to discharge.

Once the EPA has taken action to address the issues raised in the ruling on the CAFO regulations by the United States Court of Appeals for the Second Circuit, the Department will reconsider how to deal with this issue.

The following is a summary of the CAFO regulations:

Regulatory Definition of Large, Medium, and Small CAFOs

A Large CAFO confines at least the number of animals described in the table below. A Medium CAFO falls within the size range in the table below and either: 

If an operation is found to be a significant contributor of pollutants, the Department may designate a medium-sized facility as a CAFO.

A Small CAFO confines fewer than the number of animals listed in the table and has been designated as a CAFO by the Department as a significant contributor of pollutants.

Animal Sector

 Size Thresholds (number of animals) 
Large CAFOs  Medium CAFOs1 

Small CAFOs2 

cattle or cow/calf pairs

1,000 or more

300 - 999

less than 300

mature dairy cattle

700 or more

200 - 699

less than 200

veal calves

1,000 or more

300 - 999

less than 300

swine (weighing over 55 pounds)

2,500 or more

750 - 2,499

less than 750

swine (weighing less than 55 pounds)

10,000 or more

3,000 - 9,999

less than 3,000

horses

500 or more

150 - 499

less than 150

sheep or lambs

10,000 or more

3,000 - 9,999

less than 3,000

turkeys

55,000 or more

16,500 - 54,999

less than 16,500

laying hens or broilers (liquid manure handling systems)

30,000 or more

9,000 - 29,999

less than 9,000

chickens other than laying hens (other than a liquid manure handling systems)

125,000 or more

37,500 - 124,999

less than 37,500

laying hens (other than a liquid manure handling systems)

82,000 or more

25,000 - 81,999

less than 25,000

ducks (other than a liquid manure handling systems)

30,000 or more

10,000 - 29,999

less than 10,000

ducks (liquid manure handling systems)

5,000 or more

1,500 - 4,999

less than 1,500

 1Must also meet one of two “method of discharge” criteria to be defined as a CAFO or may be designated. 

2 Never a CAFO by regulatory definition, but may be designated as a CAFO on a case-by-case basis."

If a large CAFO demonstrates that it has not potential to discharge then a NPDES permit is not required."

As envisioned by the EPA prior to the court's ruling:

all CAFOs must have either an individual NPDES permit or coverage under a general NPDES permit.

New CAFOs must have their NPDES permit before they start operations.

Existing AFOs (including expanding facilities) that became CAFOs because of the modifications to regulations must have NPDES coverage on or before April 13, 2006

The Department was supposed to grant existing animal facilities that are large CAFOs NPDES Permit coverage on or before April 13, 2006. However, the ruling from the United States Court of Appeals for the Second Circuit changed this since in SC these facilities do not have the potential to discharge.

Under federal effluent limitations guidelines which are associated with the NPDES regulations, CAFOs are allowed to discharge to surface waters under certain conditions such as when there are catastrophic or chronic rainfall events or the twenty five year, twenty-four hour storm occurs or is exceeded. In South Carolina, agricultural lagoons/treatment systems are designed as no discharge systems.

Prior to the ruling from the United States Court of Appeals for the Second Circuit, SC issued a CAFO General NPDES Permit to comply with the amended federal and state CAFO NPDES regulations. This CAFO NPDES general permit is a "no discharge" permit that does not allow a discharge to surface water under any circumstances.

To ensure no discharge to surface waters, agricultural lagoons in SC are designed to have a volume such that the manure generated at the facility during the time period between land applications, the normal rainfall occurring between land applications, and the rainfall from the twenty five year, twenty four hour storm event can all be stored in the lagoon while maintaining at least one and one half (1 1/2) foot of freeboard at all times. Also, adequate crop land must be provided for land application of the contents of the lagoon at agronomic rates on a viable crop in accordance with an approved animal facility management plan. Based on SC's agricultural program requirements, animal facility operations do not have the potential to discharge. Therefore, a NPDES permit is not currently required unless a facility actually discharges in violation of its state permit.

If general NPDES permit coverage is required, there is an annual fee of $100 for coverage under the CAFO General NPDES Permit.

Click here to download SC's CAFO General NPDES Permit.

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