[Code of Federal Regulations]
[Title 40, Volume 21]
[Revised as of July 1, 2007]
From the U.S. Government Printing Office via GPO Access
[CITE: 40CFR122.23]

[Page 169-174]
 
                   TITLE 40--PROTECTION OF ENVIRONMENT
 
         CHAPTER I--ENVIRONMENTAL PROTECTION AGENCY (CONTINUED)
 
PART 122_EPA ADMINISTERED PERMIT PROGRAMS: THE NATIONAL POLLUTANT 
DISCHARGE ELIMINATION SYSTEM--Table of Contents
 
   Subpart B_Permit Application and Special NPDES Program Requirements
 
Sec.  122.23  Concentrated animal feeding operations (applicable to State NPDES programs, see Sec.  123.25).

    (a) Permit requirement for CAFOs. Concentrated animal feeding 
operations, as defined in paragraph (b) of this section, are point 
sources that require NPDES permits for discharges or potential 
discharges. Once an operation is defined as a CAFO, the NPDES 
requirements for CAFOs apply with respect to all animals in confinement 
at the operation and all manure, litter and process wastewater generated 
by those animals or the production of those animals, regardless of the 
type of animal.
    (b) Definitions applicable to this section:
    (1) Animal feeding operation (``AFO'') means a lot or facility 
(other than an aquatic animal production facility) where the following 
conditions are met:
    (i) Animals (other than aquatic animals) have been, are, or will be 
stabled or confined and fed or maintained for a total of 45 days or more 
in any 12-month period, and
    (ii) Crops, vegetation, forage growth, or post-harvest residues are 
not sustained in the normal growing season over any portion of the lot 
or facility.
    (2) Concentrated animal feeding operation (``CAFO'') means an AFO 
that is

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defined as a Large CAFO or as a Medium CAFO by the terms of this 
paragraph, or that is designated as a CAFO in accordance with paragraph 
(c) of this section. Two or more AFOs under common ownership are 
considered to be a single AFO for the purposes of determining the number 
of animals at an operation, if they adjoin each other or if they use a 
common area or system for the disposal of wastes.
    (3) The term land application area means land under the control of 
an AFO owner or operator, whether it is owned, rented, or leased, to 
which manure, litter or process wastewater from the production area is 
or may be applied.
    (4) Large concentrated animal feeding operation (``Large CAFO''). An 
AFO is defined as a Large CAFO if it stables or confines as many as or 
more than the numbers of animals specified in any of the following 
categories:
    (i) 700 mature dairy cows, whether milked or dry;
    (ii) 1,000 veal calves;
    (iii) 1,000 cattle other than mature dairy cows or veal calves. 
Cattle includes but is not limited to heifers, steers, bulls and cow/
calf pairs;
    (iv) 2,500 swine each weighing 55 pounds or more;
    (v) 10,000 swine each weighing less than 55 pounds;
    (vi) 500 horses;
    (vii) 10,000 sheep or lambs;
    (viii) 55,000 turkeys;
    (ix) 30,000 laying hens or broilers, if the AFO uses a liquid manure 
handling system;
    (x) 125,000 chickens (other than laying hens), if the AFO uses other 
than a liquid manure handling system;
    (xi) 82,000 laying hens, if the AFO uses other than a liquid manure 
handling system;
    (xii) 30,000 ducks (if the AFO uses other than a liquid manure 
handling system); or
    (xiii) 5,000 ducks (if the AFO uses a liquid manure handling 
system).
    (5) The term manure is defined to include manure, bedding, compost 
and raw materials or other materials commingled with manure or set aside 
for disposal.
    (6) Medium concentrated animal feeding operation (``Medium CAFO''). 
The term Medium CAFO includes any AFO with the type and number of 
animals that fall within any of the ranges listed in paragraph (b)(6)(i) 
of this section and which has been defined or designated as a CAFO. An 
AFO is defined as a Medium CAFO if:
    (i) The type and number of animals that it stables or confines falls 
within any of the following ranges:
    (A) 200 to 699 mature dairy cows, whether milked or dry;
    (B) 300 to 999 veal calves;
    (C) 300 to 999 cattle other than mature dairy cows or veal calves. 
Cattle includes but is not limited to heifers, steers, bulls and cow/
calf pairs;
    (D) 750 to 2,499 swine each weighing 55 pounds or more;
    (E) 3,000 to 9,999 swine each weighing less than 55 pounds;
    (F) 150 to 499 horses;
    (G) 3,000 to 9,999 sheep or lambs;
    (H) 16,500 to 54,999 turkeys;
    (I) 9,000 to 29,999 laying hens or broilers, if the AFO uses a 
liquid manure handling system;
    (J) 37,500 to 124,999 chickens (other than laying hens), if the AFO 
uses other than a liquid manure handling system;
    (K) 25,000 to 81,999 laying hens, if the AFO uses other than a 
liquid manure handling system;
    (L) 10,000 to 29,999 ducks (if the AFO uses other than a liquid 
manure handling system); or
    (M) 1,500 to 4,999 ducks (if the AFO uses a liquid manure handling 
system); and
    (ii) Either one of the following conditions are met:
    (A) Pollutants are discharged into waters of the United States 
through a man-made ditch, flushing system, or other similar man-made 
device; or
    (B) Pollutants are discharged directly into waters of the United 
States which originate outside of and pass over, across, or through the 
facility or otherwise come into direct contact with the animals confined 
in the operation.
    (7) Process wastewater means water directly or indirectly used in 
the operation of the AFO for any or all of the following: spillage or 
overflow from animal or poultry watering systems; washing, cleaning, or 
flushing pens,

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barns, manure pits, or other AFO facilities; direct contact swimming, 
washing, or spray cooling of animals; or dust control. Process 
wastewater also includes any water which comes into contact with any raw 
materials, products, or byproducts including manure, litter, feed, milk, 
eggs or bedding.
    (8) Production area means that part of an AFO that includes the 
animal confinement area, the manure storage area, the raw materials 
storage area, and the waste containment areas. The animal confinement 
area 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. The manure storage area includes but is not limited to 
lagoons, runoff ponds, storage sheds, stockpiles, under house or pit 
storages, liquid impoundments, static piles, and composting piles. The 
raw materials storage area includes but is not limited to feed silos, 
silage bunkers, and bedding materials. The waste containment area 
includes but is not limited to settling basins, and areas within berms 
and diversions which separate uncontaminated storm water. Also included 
in the definition of production area is any egg washing or egg 
processing facility, and any area used in the storage, handling, 
treatment, or disposal of mortalities.
    (9) Small concentrated animal feeding operation (``Small CAFO''). An 
AFO that is designated as a CAFO and is not a Medium CAFO.
    (c) How may an AFO be designated as a CAFO? The appropriate 
authority (i.e., State Director or Regional Administrator, or both, as 
specified in paragraph (c)(1) of this section) may designate any AFO as 
a CAFO upon determining that it is a significant contributor of 
pollutants to waters of the United States.
    (1) Who may designate?--(i) Approved States. In States that are 
approved or authorized by EPA under Part 123, CAFO designations may be 
made by the State Director. The Regional Administrator may also 
designate CAFOs in approved States, but only where the Regional 
Administrator has determined that one or more pollutants in the AFO's 
discharge contributes to an impairment in a downstream or adjacent State 
or Indian country water that is impaired for that pollutant.
    (ii) States with no approved program. The Regional Administrator may 
designate CAFOs in States that do not have an approved program and in 
Indian country where no entity has expressly demonstrated authority and 
has been expressly authorized by EPA to implement the NPDES program.
    (2) In making this designation, the State Director or the Regional 
Administrator shall consider the following factors:
    (i) The size of the AFO and the amount of wastes reaching waters of 
the United States;
    (ii) The location of the AFO relative to waters of the United 
States;
    (iii) The means of conveyance of animal wastes and process waste 
waters into waters of the United States;
    (iv) The slope, vegetation, rainfall, and other factors affecting 
the likelihood or frequency of discharge of animal wastes manure and 
process waste waters into waters of the United States; and
    (v) Other relevant factors.
    (3) No AFO shall be designated under this paragraph unless the State 
Director or the Regional Administrator has conducted an on-site 
inspection of the operation and determined that the operation should and 
could be regulated under the permit program. In addition, no AFO with 
numbers of animals below those established in paragraph (b)(6) of this 
section may be designated as a CAFO unless:
    (i) Pollutants are discharged into waters of the United States 
through a manmade ditch, flushing system, or other similar manmade 
device; or
    (ii) Pollutants are discharged directly into waters of the United 
States which originate outside of the facility and pass over, across, or 
through the facility or otherwise come into direct contact with the 
animals confined in the operation.
    (d) Who must seek coverage under an NPDES permit?--(1) All CAFO 
owners or operators must apply for a permit. All CAFO owners or 
operators must seek

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coverage under an NPDES permit, except as provided in paragraph (d)(2) 
of this section. Specifically, the CAFO owner or operator must either 
apply for an individual NPDES permit or submit a notice of intent for 
coverage under an NPDES general permit. If the Director has not made a 
general permit available to the CAFO, the CAFO owner or operator must 
submit an application for an individual permit to the Director.
    (2) Exception. An owner or operator of a Large CAFO does not need to 
seek coverage under an NPDES permit otherwise required by this section 
once the owner or operator has received from the Director notification 
of a determination under paragraph (f) of this section that the CAFO has 
``no potential to discharge'' manure, litter or process wastewater.
    (3) Information to submit with permit application. A permit 
application for an individual permit must include the information 
specified in Sec.  122.21. A notice of intent for a general permit must 
include the information specified in Sec. Sec.  122.21 and 122.28.
    (e) Land application discharges from a CAFO are subject to NPDES 
requirements. The discharge of manure, litter or process wastewater to 
waters of the United States from a CAFO as a result of the application 
of that manure, litter or process wastewater by the CAFO to land areas 
under its control is a discharge from that CAFO subject to NPDES permit 
requirements, except where it is an agricultural storm water discharge 
as provided in 33 U.S.C. 1362(14). For purposes of this paragraph, where 
the manure, litter or process wastewater has been applied in accordance 
with site specific nutrient management practices that ensure appropriate 
agricultural utilization of the nutrients in the manure, litter or 
process wastewater, as specified in Sec.  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.
    (f) ``No potential to discharge'' determinations for Large CAFOs--
(1) Determination by the Director. The Director, upon request, may make 
a case-specific determination that a Large CAFO has ``no potential to 
discharge'' pollutants to waters of the United States. In making this 
determination, the Director must consider the potential for discharges 
from both the production area and any land application areas. The 
Director must also consider any record of prior discharges by the CAFO. 
In no case may the CAFO be determined to have ``no potential to 
discharge'' if it has had a discharge within the 5 years prior to the 
date of the request submitted under paragraph (f)(2) of this section. 
For purposes of this section, the term ``no potential to discharge'' 
means that there is no potential for any CAFO manure, litter or process 
wastewater to be added to waters of the United States under any 
circumstance or climatic condition. A determination that there is ``no 
potential to discharge'' for purposes of this section only relates to 
discharges of manure, litter and process wastewater covered by this 
section.
    (2) Information to support a ``no potential to discharge'' request. 
In requesting a determination of ``no potential to discharge,'' the CAFO 
owner or operator must submit any information that would support such a 
determination, within the time frame provided by the Director and in 
accordance with paragraphs (g) and (h) of this section. Such information 
must include all of the information specified in Sec.  122.21(f) and 
(i)(1)(i) through (ix). The Director has discretion to require 
additional information to supplement the request, and may also gather 
additional information through on-site inspection of the CAFO.
    (3) Process for making a ``no potential to discharge'' 
determination. Before making a final decision to grant a ``no potential 
to discharge'' determination, the Director must issue a notice to the 
public stating that a ``no potential to discharge'' request has been 
received. This notice must be accompanied by a fact sheet which 
includes, when applicable: a brief description of the type of facility 
or activity which is the subject of the ``no potential to discharge'' 
determination; a brief summary of the factual basis, upon which the 
request is based, for granting the ``no potential to discharge'' 
determination; and a description of the procedures for reaching

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a final decision on the ``no potential to discharge'' determination. The 
Director must base the decision to grant a ``no potential to discharge'' 
determination on the administrative record, which includes all 
information submitted in support of a ``no potential to discharge'' 
determination and any other supporting data gathered by the permitting 
authority. The Director must notify any CAFO seeking a ``no potential to 
discharge'' determination of its final determination within 90 days of 
receiving the request.
    (4) What is the deadline for requesting a ``no potential to 
discharge'' determination? The owner or operator must request a ``no 
potential to discharge'' determination by the applicable permit 
application date specified in paragraph (g) of this section. If the 
Director's final decision is to deny the ``no potential to discharge'' 
determination, the owner or operator must seek coverage under a permit 
within 30 days after the denial.
    (5) The ``no potential to discharge'' determination does not relieve 
the CAFO from the consequences of an actual discharge. Any unpermitted 
CAFO that discharges pollutants into the waters of the United States is 
in violation of the Clean Water Act even if it has received a ``no 
potential to discharge'' determination from the Director. Any CAFO that 
has received a determination of ``no potential to discharge,'' but who 
anticipates changes in circumstances that could create the potential for 
a discharge, should contact the Director, and apply for and obtain 
permit authorization prior to the change of circumstances.
    (6) The Director retains authority to require a permit. Where the 
Director has issued a determination of ``no potential to discharge,'' 
the Director retains the authority to subsequently require NPDES permit 
coverage if circumstances at the facility change, if new information 
becomes available, or if there is another reason for the Director to 
determine that the CAFO has a potential to discharge.
    (g) When must a CAFO seek coverage under an NPDES permit?--(1) 
Operations defined as CAFOs as of April 14, 2003, who were not defined 
as CAFOs prior to that date. For all CAFOs, the owner or operator of the 
CAFO must seek to obtain coverage under an NPDES permit by a date 
specified by the Director, but no later than July 31, 2007.
    (2) Operations defined as CAFOs as of April 14, 2003, who were not 
defined as CAFOs prior to that date. For all CAFOs, the owner or 
operator of the CAFO must seek to obtain coverage under an NPDES permit 
by a date specified by the Director, but no later than February 13, 
2006.
    (3) Operations that become defined as CAFOs after April 14, 2003, 
but which are not new sources. For newly constructed AFOs and AFOs that 
make changes to their operations that result in becoming defined as 
CAFOs for the first time, after April 14, 2003, but are not new sources, 
the owner or operator must seek to obtain coverage under an NPDES 
permit, as follows:
    (i) For newly constructed operations not subject to effluent 
limitations guidelines, 180 days prior to the time CAFO commences 
operation; or
    (ii) For other operations (e.g., resulting from an increase in the 
number of animals), as soon as possible, but no later than 90 days after 
becoming defined as a CAFO; except that
    (iii) If an operational change that makes the operation a CAFO would 
not have made it a CAFO prior to April 14, 2003, the operation has until 
July 31, 2007, or 90 days after becoming defined as a CAFO, whichever is 
later.
    (4) New sources. New sources must seek to obtain coverage under a 
permit at least 180 days prior to the time that the CAFO commences 
operation.
    (5) Operations that are designated as CAFOs. For operations 
designated as a CAFO in accordance with paragraph (c) of this section, 
the owner or operator must seek to obtain coverage under a permit no 
later than 90 days after receiving notice of the designation.
    (6) No potential to discharge. Notwithstanding any other provision 
of this section, a CAFO that has received a ``no potential to 
discharge'' determination in accordance with paragraph (f) of this 
section is not required to seek coverage under an NPDES permit that 
would otherwise be required by this section. If circumstances materially 
change at a CAFO that has received a NPTD determination, such that the

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CAFO has a potential for a discharge, the CAFO has a duty to immediately 
notify the Director, and seek coverage under an NPDES permit within 30 
days after the change in circumstances.
    (h) Duty to Maintain Permit Coverage. No later than 180 days before 
the expiration of the permit, the permittee must submit an application 
to renew its permit, in accordance with Sec.  122.21(g). However, the 
permittee need not continue to seek continued permit coverage or reapply 
for a permit if:
    (1) The facility has ceased operation or is no longer a CAFO; and
    (2) The permittee has demonstrated to the satisfaction of the 
Director that there is no remaining potential for a discharge of manure, 
litter or associated process wastewater that was generated while the 
operation was a CAFO, other than agricultural stormwater from land 
application areas.

[68 FR 7265, Feb. 12, 2003, as amended at 71 FR 6984, Feb. 10, 2006]