CAFOs? CFOs? What does Indiana law say?

A couple years ago I wrote an article for the American Bar Association on Indiana's regulatory scheme for permitting animal feeding operations.  The law is still the same today, at least until new CAFO regulations are promulgated.  The notes below are an excerpt from that article.  Email me and I can send you more.

CONCENTRATED ANIMAL FEEDING OPERATIONS – CAFOs

I.  What are CFOs and CAFOs? 

CFOs and CAFOs are Indiana’s largest livestock producers.  CFOs are defined as the “confined feeding” of at least:

·        300 cattle;

·        600 swine or sheep; or

·        30,000 fowl.

327 IAC 16-2-5.  “Confined feeding” means feeding animals in pens, sheds, or buildings for at least forty-five (45) days of any given year.

CAFOs are defined similarly and include three different sizes of livestock operations:    animal feeding operations (“AFOs”); medium CAFOs, and large CAFOs.  Large CAFOs must operate under NPDES permits.  The threshold numbers to be considered a large “CAFO” in Indiana are:

• 700 mature dairy cows
• 1000 veal calves
• 1000 cattle
• 2,500 swine (greater than 55 pounds)
• 10,000 swine (less than 55 pounds)
• 500 horses
• 10,000 sheep
• 55,000 turkeys
• 30,000 hens 
• 5,000 ducks

327 IAC 5-4-3.  IDEM may also designate other livestock operations “CAFOs” depending on site specific conditions, e.g., based on their level of manure discharged into waters of the state.  IDEM deems all Indiana CAFOs to have the “potential” to discharge pollutants into waters of the state and therefore are “point sources” requiring an NPDES permit.

II.   Why are there two permitting schemes?

Prior to 2001, Indiana permitted its CAFOs by issuing CFO approvals—it did not require each operation to obtain separate NPDES permits.  In 2002, an environmental group sued IDEM alleging its CFO regulations failed to adequately enforce the federal Clean Water Act.  See Save the Valley, Inc. v. United State Env. Prot. Agency, 223 F. Supp.2d 997 (S.D. Ind. 2002).  The federal district court agreed and sent IDEM back to the drawing board to come up new livestock operation regulations that adequately addressed the Clean Water Act’s prohibition of discharges into waters of the United States.  The result was the promulgation of IDEM’s CAFO regulation.  IDEM left its CFO regulations on the books, and a dual permitting scheme was born.