The United States Environmental Protection Agency faces an obligation to propose, before June of this year, a rule under the Clean Water Act which will impose reporting requirements upon owners and operators of concentrated animal feeding operations (PDF), or CAFOs, which include certain dairy and poultry farms, horse racing tracks, rodeo facilities, and many other types of operations. 

As EPA estimates that there are thousands of CAFOs which should have applied for National Pollution Discharge Elimination System, or NPDES, permits but did not do so (PDF), EPA is likely to propose that every CAFO—regardless of whether is has a permit or even discharges—provide information which will enable EPA to determine if the facility must obtain a permit and if it is otherwise in compliance with CAFO regulations. 

The expected proposed rule’s reporting requirements will place noncompliant CAFOs at heightened risk of EPA enforcement action.  EPA is also obligated to release to the public the information it collects on CAFOs under the new rule, which could place CAFO owners and operators at risk of citizen suits. 

In light of this expected proposed rule, the window may quickly be closing for CAFOs to come into compliance with CWA requirements, including by contacting EPA to self-report noncompliance, before EPA undertakes what could be a significant enforcement initiative.  Waste-to-energy opportunities may arise as CAFOs evaluate their waste management practices and potentially modify their facilities in response to the CAFO compliance push.