The Ninth Circuit’s ruling provides temporary relief from new federal water regulations, but Oregon has introduced more stringent state rules with regard to CAFOs. Understanding these changes is vital to stay abreast of the continually shifting regulatory landscape.

The Ninth Circuit Ruling: Deferring New Federal Regulations for CAFOs

In Food & Water Watch et al. v. EPA, environmental groups sought stricter Clean Water Act regulations for CAFOs. The plaintiffs argued the EPA had failed to address water pollution attributable to large animal feeding operations, and called for new and more stringent rules to limit waste discharge into surface waters.

The Ninth Circuit rejected the request, and upheld the EPA’s decision not to initiate rulemaking. Crucially, the Court noted the agency had not declined to act, but chose instead not to conduct further studies on the effectiveness of its current effluent limitation guidelines. The EPA acknowledged that CAFOs “may be responsible for unlawful water pollution,” but decided a rulemaking might not be the most effective or timely solution. Id. at 1. Instead, the agency intends to commission a stakeholders’ subcommittee and study the issue further before choosing whether to pursue new regulations.

The Court’s opinion stressed the EPA’s broad discretion to prioritize its regulatory efforts: “EPA has broad discretion to choose how best to marshal its limited resources and personnel to carry out its delegated responsibilities,” and the agency is afforded “significant latitude as to the manner, timing, content, and coordination of its regulations.” Id. at 2. This ruling gives producers temporary relief from the possibility of immediate new federal water regulations, and allows the EPA time to gather more data and consult with stakeholders—including producers—before making any decisions.

Oregon’s New CAFO Rules: Stricter Standards and New Requirements for Dairy Producers

Though the Ninth Circuit ruling delayed new federal regulations, Oregon adopted rules to implement SB 85. These changes impose stricter requirements focused on water management, construction approvals, water supply plans, and operational transparency. Below is an overview of the key adjustments and how they compare to the previous regulatory framework.

1. Construction Requirements

Prior rules provided general guidance on facility construction, but lacked detailed inspection requirements and clarity regarding engineering specifics. SB 85 introduces specific inspection requirements for facilities after construction as a prerequisite for moving animals into a new facility (see OAR 603-074-0018). These inspections are intended to confirm the new structure meets environmental standards before it becomes operational. The construction approval process is now codified as well, and clarifies what types of CAFO construction projects require engineering review and approval. This change puts into rule the steps required for construction compliance and may reduce uncertainty; it also creates delays that producers should factor in when they plan a new facility.

2. Clarified Definitions

The updated rules in OAR 603-074-0010 clarify key terms. Notably, the definition of “CAFO” more clearly specifies which operations qualify for a permit based on confinement numbers and liquid wastewater generation. Also, for the first time “discharge” is defined as the release of pollutants into state or U.S. waters, which includes placing wastes on land or into the environment in a way that affects water quality. This clarification aligns state rules with federal definitions under 40 CFR § 122.2.

3. Permit Designations

Under the previous regulations, permit designations were based primarily on the size and type of operation. Oregon’s updated permit designation table in OAR 603-074-0011 introduces more specific thresholds for CAFOs, including multi-species operations and lower limits for the number of confined animals. See the table here. Additional operations fall under regulatory oversight, and the table provides a more precise framework to determine which require permits.

4. Permit Application Procedures

The previous application process lacked specific requirements for permit applications. In OAR 603-074-0012, the updated rules introduce pre-application consultations, in which producers must engage with regulators before submitting a full permit application. This can provide an opportunity to identify and address potential issues early in the process, though this additional step may also create further delay in application review and approval. Additionally, large CAFOs in Groundwater Management Areas (GWMAs) must now apply for individual permits if they plan to land-apply manure. This addresses agency concerns about protecting water quality in sensitive areas. The application process also currently requires neighbor notice, to increase public and community involvement in the CAFO permitting process.

5. Water Supply Plan Requirements

A significant addition to the CAFO permitting process is the requirement for a Water Supply Plan (see ORS 603-074-0019). Producers must now document all sources of fresh water, which  will be subject to review by the Oregon Water Resource Department (OWRD). The purpose of this new requirement is to ensure the CAFO includes a plan for water use based on authorized uses, and that it will have access to sufficient fresh water for proposed operations.

6. Monitoring and Reporting

The new framework requires more frequent water-quality monitoring and detailed reports. Producers must regularly test nutrient levels in nearby water sources and submit findings to state regulators who seek to address concerns that pollution risks are identified and mitigated early. This will impose more regulatory burdens on producers, especially smaller producers who may lack economies of scale to support administrative staffing.

7. Public Participation and Transparency

The updated rules mandate greater transparency, including public meetings and the disclosure of nutrient management plans during the permit application process (see OAR 603-074-0012(6)).

8. Nutrient Management Plans for Receiving Properties

The new framework now requires any property that receives manure from a CAFO, even if it is not part of the property covered by the CAFO, must have a Nutrient Management Plan (NMP). This means producers must ensure that properties beyond their own premises follow specific guidelines for manure application. This adds additional steps to the process of managing manure, because it requires more oversight and coordination with recipient properties.

The Intersection of Federal and State Developments

Although the Ninth Circuit’s ruling grants dairy producers a temporary reprieve from new federal water regulations, Oregon’s updated CAFO rules place additional demands on producers within the state. Producers will want to focus on complying with enhanced water-quality protections, more detailed permitting processes, new water supply plan requirements, and increased community and public participation in the permitting process.

This article summarizes aspects of the law and does not constitute legal advice. For legal advice regarding your situation, you should contact an attorney.