Concentrated Animal Feeding Operations

The State Water Control Board has approved amendments to the VPDES Permit Regulation (9 VAC 25-31) that reflect changes in the Code of Federal Regulations (40 CFR Parts 9, 122, 123, and 412). The Federal code now specifies that a Concentrated Animal Feeding Operation (CAFO) is a point source that requires an NPDES permit for discharges or potential discharges to surface waters (40 CFR Part 122.23(a)).

However, on February 28, 2005, the U.S. Court of Appeals for the 2nd Circuit decided that certain provisions of the Federal CAFO rule must be altered in order to conform with the Clean Water Act (see the full text of the ruling). Among other issues, the court decided that the "duty to apply" for a NPDES permit could not be based on facility size alone; an actual discharge must exist in order for a CAFO to be required to register for coverage. This decision means that not all Virginia CAFOs will be required to obtain a VPDES permit.

Operations that meet the Federal definition of CAFO (see 40 CFR Part 122.23(b)(2)) are currently regulated in Virginia under the Virginia Pollution Abatement (VPA) permit regulation (9 VAC 25-32), the VPA General Permit Regulation for Confined Animal Feeding Operations (9 VAC 25-192), or the VPA General Permit Regulation for Poultry Waste Management (9 VAC 25-630). Federally defined CAFOs currently permitted under these regulations may be required to be permitted under a VPDES individual permit (9 VAC 25-31) or VPDES general permit (9 VAC 25-191).

The Virginia DEQ will determine what state regulatory action to take once EPA makes final revisions to the CAFO rule in response to the U.S. Court decision. In the interim, CAFOs should maintain coverage and continue compliance with their existing VPA permits.

Independent of the court ruling, all nutrient management plans for permitted facilities must be revised to include phosphorus by December 31, 2006.