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Nobody is Watching How the Sausage is Made: The Failure to Regulate CAFOs - Declan McGarry

August 19, 2020

 

          Nobody is Watching How the Sausage is Made: The Failure to Regulate CAFOs

                                                        Declan McGarry - LLM Student

 

Concentrated Animal Feeding Operations (CAFOs) largely operate outside any federal environmental regulations due primarily to insufficient jurisdictional reach of the Clean Water Act (CWA). This lack of federal regulation leads to large- scale environmental degradation particularly of surface and groundwater. CAFOs produce the vast majority of meat and animal products in America. According to the 2017 USDA Census of Agriculture data, approximately 70.4 percent of cows, 98.3 percent of pigs, 99.8 percent of turkeys, 98.2 percent of hens raised for eggs, and 99.9 percent of chicken raised for meat are raised in factory farms.1 As of 2018, EPA estimated that there were around 20,382 CAFOs across the United States. Of this number, only 6,597 had National Pollutant Discharge Elimination System (NPDES) permits to discharge under the CWA.2 There is no other federal legislation that sets any limits, standards, or practices on the waste disposal for CAFOs. Congress should address this by developing a comprehensive legislation addressing CAFOs and specifically should require Nutrient Management Plans (NMPs) to address water pollution.

CAFO Pollution

CAFOs produce tremendous amounts of waste; even the smallest CAFOs produce urine and feces in quantities equivalent to 16,000 humans.3 This waste, unlike the human waste, is never treated before it is left to sit in a lagoon or applied to the land as “fertilizer.” CAFO waste contains a multitude of compounds that are dangerous for human health or the environment. CAFO waste can contain dangerous pathogens such as E. Coli, cryptosporidium, and salmonella, which are harmful to humans and animals alike.4 Additionally, nutrients in CAFO waste, like phosphorus and nitrogen, can cause algae blooms that draw dissolved oxygen out of the water and result in fish kills.5 CAFO waste can contain a multitude of other compounds, including the cleaning agents used on the animals and surfaces, hormones given to livestock, milkhouse wastes, and antibiotic-resistant strains of bacteria.

To handle the liquid manure produced by CAFOs, operators commonly spray it on or inject it into the adjacent property or place it in semi trucks for transport to other property to be sprayed or injected.6 The majority of liquid manure sprayed on fields exceeds the soil’s absorptive capacity, causing leaching nutrients and other compounds into the groundwater.7 The storage lagoons also allow for waste to seep into ground water even with precautions in place, such as clay lining of the lagoon; over the course of a year lagoons can seep 1 to 4.35 millions gallons of waste into the soil.8 Additionally, CAFO waste is highly susceptible to runoff during rain events; lagoons can overflow and manure applied to fields can run off.9 These are merely the dangers associated with water contamination; CAFO present several other additional problems relating to air pollution, animal welfare, and energy consumption.

The CWA’s Limited Reach

The CWA is limited in two aspects that allow for CAFOs to escape permitting and regulation under the NPDES: (1) the CWA does not allow EPA to regulate potential discharges, and (2) the Trump Administration’s limiting definition of waters of the United States under the CWA. The CWA is limited in that it can only regulate actual discharges into waters of the United States.

No Regulation of Potential Discharges

The CWA does not allow for the EPA to require NPDES permits from every CAFO merely because they have the potential to discharge. The NPDES program allows for an agency, either EPA or an approved State agency, to set effluent limitation standards as well as qualitative water quality standards when effluent limitations would be insufficient.10 In 2003, EPA published a final rule that would have required any CAFO to apply for a NPDES permit, unless they were able to secure a determination from the director of the relevant permitting authority that there was no potential for discharge.11 This regulation reflected the reality that CAFOs are far more likely than not to have some sort of discharge. However, in Waterkeeper Alliance. v. EPA, the Second Circuit held that this requirement exceeded EPA’s authority under the CWA.12 The court held that EPA’s authorization in the CWA to issue NPDES permits for discharges is limited only to point sources that discharge, not ones that may discharge.13 Discharges require that waste exit a point source into a water of the United States, case law has extended the definition of discharge to include situations where point source stops short of reaching the water directly but effectively reach water. CAFOs while a point source can only be regulated when they are discharging directly into waters of the United States. CAFOs generally spray the waste on fields which can cause runoff or seep into ground water but is not directly sprayed into waters, this means that despite their point source status the wording of the CWA does not allow for direct regulation of every CAFO.

The Fifth Circuit extended this logic of the Second Circuit when it evaluated EPA’s 2008 revision of the stricken 2003 regulation. The 2008 revision called for any CAFO that proposed to discharge to apply for an NPDES permit; however, the Fifth Circuit found this too exceeded EPA’s authority under the CWA.14 The CWA does not allow for EPA to require CAFOs to apply for an NPDES permit merely because the CAFO thinks it might discharge. This ruling effectively means that CAFOs can only be regulated after they are already caught polluting in the waters of the United States.

Constraining the Definition of Waters of the United States

The definition of waters of the United States has a further limiting effect on the EPA’s jurisdictional reach under the CWA. The Trump Administration proposed regulation would limit the definition of waters of the United States to eliminate any non-perennial streams. 15 This means that any CAFOs that would be discharging into seasonal or intermittent streams would not be covered under the CWA even if the waste reaches traditionally navigable waters of the United States. This would require EPA to take the further step after investigating whether or not a CAFO discharged into a water to ensure that receiving water is one covered under the CWA even if it is a tributary of traditionally navigable waters. This limiting definition of waters of the United States coupled with EPA’s inability to regulate potential discharges will likely result in many CAFOs taking the risk of getting caught as it is difficult for EPA to upkeep investigations on CAFOs especially unpermitted CAFOs.

Future Regulations of CAFOs

Congress should address the lack of regulation of CAFOs by implementing comprehensive legislation allowing EPA to regulate CAFOs for every type of pollution. CAFOs are host to several currently unregulated issues besides water pollution such as air pollution, antibiotics usage, animal welfare, and energy consumption. A comprehensive piece of legislation targeting CAFOs could take the opportunity to address all of these issues beyond just water pollution.

However, with regard to water pollution, Congress should require CAFOs to adhere to NMPs. NMPs detail specific procedures for how the CAFO is to handle its wastes. NMPs include source, rate, timing, form, and method of application for all “nutrients” handled by the CAFO.16 These plans require the CAFO to have data on amount of waste, and the rate at which the waste is accumulated as well as the rate it is applied. This ensures that they are not over applying “nutrients” which may seep into ground water and run off into surface water. Wisconsin requires that all CAFOs submit and adhere to NMP plans, this legislation even goes as far to effect certain AFOs which are situated near state waters.17 Under Wisconsin’s law, the CAFO makes its own NMP which is evaluated by the Department of Natural

 

1 Jacy Reese, US Factory Farming Estimates, SENTIENCE INST., Apr. 11, 2019,

https://www.sentienceinstitute.org/us-factory-farming-estimates

2 ENVIRONMENTAL PROTECTION AGENCY, NPDES CAFO RULE IMPLEMENTATION STATUS – NATIONAL SUMMARY,

ENDYEAR 2018 (2018)

3 Why are CAFOs bad?, SIERRA CLUB: MICHIGAN CHAPTER, https://www.sierraclub.org/michigan/why-are-cafos-bad

4 Id.

5 Id.

6 Id.

7 Sara Kangas, Water Pollution Concerns Surround CAFOs, Nat’l Farmers Union (Oct. 30, 2015), https://nfu.org/2015/10/30/water-pollution-concerns-surround-cafos/

8 Id.

9 Id.

10 33 U.S.C. 1311; 33 U.S.C. 1312(a); 33 U.S.C. 1342

11 40 C.F.R. § 122.23(d)(1)(2003)

12 Waterkeeper Alliance, Inc. v. U.S. E.P.A., 399 F.3d 486 504–506 (2nd Cir. 2005).

13 National Pork Producer’s Council v. U.S. E.P.A., 635 F.3d 738 749 (5th Cir. 2011).

14 Id.

15 Revised Definition of “Waters of the United States,” 84 Fed. Reg. 4154 (proposed Feb. 14,2019)(to be codified at 33 C.F.R. 328).

16 See e.g. Wis. Admin. Code NR EL 243 (2019).

17 Id.

 

Resources (DNR) to ensure the NMP sufficiently protects water and groundwater quality. Once approved by Wisconsin’s DNR these plans become requirements, along with reporting requirements, that the CAFO must follow which are enforceable by Wisconsin’s DNR. These rules were even challenged as exceeding authority of Wisconsin’s DNR as CAFOs who land applied waste to fields offsite, and were upheld by the Wisconsin Court of Appeals. This has reduced the total number of CAFOs being sited in Wisconsin, but neighboring states with little to no CAFO permitting requirements have seen an increase of the number of CAFOs sited.

Additionally, Wisconsin has recognized that to some extent the legislation is a paper tiger because they don’t have the resources to approve, review, and enforce NMPs for all CAFOs across the state.18 Requiring NMPs for any and every CAFO is a good step for Wisconsin to control pollution in its surface and groundwater, but without the resources to enforce the NMP requirements, these laws do not truly have an effect.

Relying on states to enact their own NMP programs undermines CAFO regulation as it causes a race to the bottom between CAFO friendly states like Iowa and Missouri, and would force the most negative externalities to be felt by the people in these states. Congress must take the step of regulating all CAFOs to avoid a race to the bottom in the states. Under the CWA, NMPs have been part of NPDES permits have been held as a valid exercise of quantitative and qualitative limitations required under the CWA. The Second Circuit even held that these NMPs were a valid exercise of the qualitative standards and must be reviewed by the permitting authority to ensure the programs’ protect water quality standards and compliance with the programs by the permittee.19 NMPs are already part of the landscape of CAFO regulation, and expanding the CWA to require all CAFOs to develop for approval, and adhere to, an NMP would not be unreasonable. Should Congress decide that comprehensive legislation that addresses all of the issues presented by CAFOs is too daunting, implementing a mandatory NMP system for all CAFOs would be an important step in limiting water pollution by CAFOs.

 

18 Danielle Kaeding, Differences Remain Over Addressing CAFO Compliance, Enforcement: More Positions Added To Oversee CAFO Permitting, WISCONSIN PUBLIC RADIO, June 14, 2019, https://www.wpr.org/differences-remain-over-addressing-cafo-compliance-enforcement.

19 Waterkeeper, 399 F.3d at 498–503.

Concentrated Animal Feeding Operations (CAFOs) largely operate outside any federal environmental regulations due primarily to insufficient jurisdictional reach of the Clean Water Act (CWA). This lack of federal regulation leads to large- scale environmental degradation particularly of surface and groundwater. CAFOs produce the vast majority of meat and animal products in America. According to the 2017 USDA Census of Agriculture data, approximately 70.4 percent of cows, 98.3 percent of pigs, 99.8 percent of turkeys, 98.2 percent of hens raised for eggs, and 99.9 percent of chicken raised for meat are raised in factory farms.1 As of 2018, EPA estimated that there were around 20,382 CAFOs across the United States. Of this number, only 6,597 had National Pollutant Discharge Elimination System (NPDES) permits to discharge under the CWA.2 There is no other federal legislation that sets any limits, standards, or practices on the waste disposal for CAFOs. Congress should address this by developing a comprehensive legislation addressing CAFOs and specifically should require Nutrient Management Plans (NMPs) to address water pollution.

CAFO Pollution

CAFOs produce tremendous amounts of waste; even the smallest CAFOs produce urine and feces in quantities equivalent to 16,000 humans.3 This waste, unlike the human waste, is never treated before it is left to sit in a lagoon or applied to the land as “fertilizer.” CAFO waste contains a multitude of compounds that are dangerous for human health or the environment. CAFO waste can contain dangerous pathogens such as E. Coli, cryptosporidium, and salmonella, which are harmful to humans and animals alike.4 Additionally, nutrients in CAFO waste, like phosphorus and nitrogen, can cause algae blooms that draw dissolved oxygen out of the water and result in fish kills.5 CAFO waste can contain a multitude of other compounds, including the cleaning agents used on the animals and surfaces, hormones given to livestock, milkhouse wastes, and antibiotic-resistant strains of bacteria.

To handle the liquid manure produced by CAFOs, operators commonly spray it on or inject it into the adjacent property or place it in semi trucks for transport to other property to be sprayed or injected.6 The majority of liquid manure sprayed on

 

1 Jacy Reese, US Factory Farming Estimates, SENTIENCE INST., Apr. 11, 2019,

https://www.sentienceinstitute.org/us-factory-farming-estimates

2 ENVIRONMENTAL PROTECTION AGENCY, NPDES CAFO RULE IMPLEMENTATION STATUS – NATIONAL SUMMARY,

ENDYEAR 2018 (2018)

3 Why are CAFOs bad?, SIERRA CLUB: MICHIGAN CHAPTER, https://www.sierraclub.org/michigan/why-

are-cafos-bad

4 Id.

5 Id.

6 Id.

 

fields exceeds the soil’s absorptive capacity, causing leaching nutrients and other compounds into the groundwater.7 The storage lagoons also allow for waste to seep into ground water even with precautions in place, such as clay lining of the lagoon; over the course of a year lagoons can seep 1 to 4.35 millions gallons of waste into the soil.8 Additionally, CAFO waste is highly susceptible to runoff during rain events; lagoons can overflow and manure applied to fields can run off.9 These are merely the dangers associated with water contamination; CAFO present several other additional problems relating to air pollution, animal welfare, and energy consumption.

 

The CWA’s Limited Reach

The CWA is limited in two aspects that allow for CAFOs to escape permitting and regulation under the NPDES: (1) the CWA does not allow EPA to regulate potential discharges, and (2) the Trump Administration’s limiting definition of waters of the United States under the CWA. The CWA is limited in that it can only regulate actual discharges into waters of the United States.

No Regulation of Potential Discharges

The CWA does not allow for the EPA to require NPDES permits from every CAFO merely because they have the potential to discharge. The NPDES program allows for an agency, either EPA or an approved State agency, to set effluent limitation standards as well as qualitative water quality standards when effluent limitations would be insufficient.10 In 2003, EPA published a final rule that would have required any CAFO to apply for a NPDES permit, unless they were able to secure a determination from the director of the relevant permitting authority that there was no potential for discharge.11 This regulation reflected the reality that CAFOs are far more likely than not to have some sort of discharge. However, in Waterkeeper Alliance. v. EPA, the Second Circuit held that this requirement exceeded EPA’s authority under the CWA.12 The court held that EPA’s authorization in the CWA to issue NPDES permits for discharges is limited only to point sources that discharge, not ones that may discharge.13 Discharges require that waste exit a point source into a water of the United States, case law has extended the definition of discharge to include situations where point source stops short of reaching the water directly but effectively reach water. CAFOs while a point source can only be regulated when they are discharging directly into waters of the United States. CAFOs generally spray the waste on fields which can cause runoff or seep into ground water but is not directly sprayed into waters, this means that despite their point source status the wording of the CWA does not allow for direct regulation of every CAFO.

 

7 Sara Kangas, Water Pollution Concerns Surround CAFOs, Nat’l Farmers Union (Oct. 30, 2015), https://nfu.org/2015/10/30/water-pollution-concerns-surround-cafos/

8 Id.

9 Id.

10 33 U.S.C. 1311; 33 U.S.C. 1312(a); 33 U.S.C. 1342

11 40 C.F.R. § 122.23(d)(1)(2003)

12 Waterkeeper Alliance, Inc. v. U.S. E.P.A., 399 F.3d 486 504–506 (2nd Cir. 2005).

13 National Pork Producer’s Council v. U.S. E.P.A., 635 F.3d 738 749 (5th Cir. 2011).

 

The Fifth Circuit extended this logic of the Second Circuit when it evaluated EPA’s 2008 revision of the stricken 2003 regulation. The 2008 revision called for any CAFO that proposed to discharge to apply for an NPDES permit; however, the Fifth Circuit found this too exceeded EPA’s authority under the CWA.14 The CWA does not allow for EPA to require CAFOs to apply for an NPDES permit merely because the CAFO thinks it might discharge. This ruling effectively means that CAFOs can only be regulated after they are already caught polluting in the waters of the United States.

Constraining the Definition of Waters of the United States

The definition of waters of the United States has a further limiting effect on the EPA’s jurisdictional reach under the CWA. The Trump Administration proposed regulation would limit the definition of waters of the United States to eliminate any non-perennial streams. 15 This means that any CAFOs that would be discharging into seasonal or intermittent streams would not be covered under the CWA even if the waste reaches traditionally navigable waters of the United States. This would require EPA to take the further step after investigating whether or not a CAFO discharged into a water to ensure that receiving water is one covered under the CWA even if it is a tributary of traditionally navigable waters. This limiting definition of waters of the United States coupled with EPA’s inability to regulate potential discharges will likely result in many CAFOs taking the risk of getting caught as it is difficult for EPA to upkeep investigations on CAFOs especially unpermitted CAFOs.

 

Future Regulation of CAFOs

Congress should address the lack of regulation of CAFOs by implementing comprehensive legislation allowing EPA to regulate CAFOs for every type of pollution. CAFOs are host to several currently unregulated issues besides water pollution such as air pollution, antibiotics usage, animal welfare, and energy consumption. A comprehensive piece of legislation targeting CAFOs could take the opportunity to address all of these issues beyond just water pollution.

However, with regard to water pollution, Congress should require CAFOs to adhere to NMPs. NMPs detail specific procedures for how the CAFO is to handle its wastes. NMPs include source, rate, timing, form, and method of application for all “nutrients” handled by the CAFO.16 These plans require the CAFO to have data on amount of waste, and the rate at which the waste is accumulated as well as the rate it is applied. This ensures that they are not over applying “nutrients” which may seep into ground water and run off into surface water. Wisconsin requires that all CAFOs submit and adhere to NMP plans, this legislation even goes as far to effect certain AFOs which are situated near state waters.17 Under Wisconsin’s law, the CAFO makes its own NMP which is evaluated by the Department of Natural

 

14 Id.

15 Revised Definition of “Waters of the United States,” 84 Fed. Reg. 4154 (proposed Feb. 14,2019)(to be codified at 33 C.F.R. 328).

16 See e.g. Wis. Admin. Code NR EL 243 (2019).

17 Id.

 

Resources (DNR) to ensure the NMP sufficiently protects water and groundwater quality. Once approved by Wisconsin’s DNR these plans become requirements, along with reporting requirements, that the CAFO must follow which are enforceable by Wisconsin’s DNR. These rules were even challenged as exceeding authority of Wisconsin’s DNR as CAFOs who land applied waste to fields offsite, and were upheld by the Wisconsin Court of Appeals. This has reduced the total number of CAFOs being sited in Wisconsin, but neighboring states with little to no CAFO permitting requirements have seen an increase of the number of CAFOs sited.

Additionally, Wisconsin has recognized that to some extent the legislation is a paper tiger because they don’t have the resources to approve, review, and enforce NMPs for all CAFOs across the state.18 Requiring NMPs for any and every CAFO is a good step for Wisconsin to control pollution in its surface and groundwater, but without the resources to enforce the NMP requirements, these laws do not truly have an effect.

Relying on states to enact their own NMP programs undermines CAFO regulation as it causes a race to the bottom between CAFO friendly states like Iowa and Missouri, and would force the most negative externalities to be felt by the people in these states. Congress must take the step of regulating all CAFOs to avoid a race to the bottom in the states. Under the CWA, NMPs have been part of NPDES permits have been held as a valid exercise of quantitative and qualitative limitations required under the CWA. The Second Circuit even held that these NMPs were a valid exercise of the qualitative standards and must be reviewed by the permitting authority to ensure the programs’ protect water quality standards and compliance with the programs by the permittee.19 NMPs are already part of the landscape of CAFO regulation, and expanding the CWA to require all CAFOs to develop for approval, and adhere to, an NMP would not be unreasonable. Should Congress decide that comprehensive legislation that addresses all of the issues presented by CAFOs is too daunting, implementing a mandatory NMP system for all CAFOs would be an important step in limiting water pollution by CAFOs.

 

Nobody is Watching How the Sausage is Made: The Failure to Regulate CAFOs

 

Concentrated Animal Feeding Operations (CAFOs) largely operate outside any federal environmental regulations due primarily to insufficient jurisdictional reach of the Clean Water Act (CWA). This lack of federal regulation leads to large- scale environmental degradation particularly of surface and groundwater. CAFOs produce the vast majority of meat and animal products in America. According to the 2017 USDA Census of Agriculture data, approximately 70.4 percent of cows, 98.3 percent of pigs, 99.8 percent of turkeys, 98.2 percent of hens raised for eggs, and 99.9 percent of chicken raised for meat are raised in factory farms.1 As of 2018, EPA estimated that there were around 20,382 CAFOs across the United States. Of this number, only 6,597 had National Pollutant Discharge Elimination System (NPDES) permits to discharge under the CWA.2 There is no other federal legislation that sets any limits, standards, or practices on the waste disposal for CAFOs. Congress should address this by developing a comprehensive legislation addressing CAFOs and specifically should require Nutrient Management Plans (NMPs) to address water pollution.

 

CAFO Pollution

CAFOs produce tremendous amounts of waste; even the smallest CAFOs produce urine and feces in quantities equivalent to 16,000 humans.3 This waste, unlike the human waste, is never treated before it is left to sit in a lagoon or applied to the land as “fertilizer.” CAFO waste contains a multitude of compounds that are dangerous for human health or the environment. CAFO waste can contain dangerous pathogens such as E. Coli, cryptosporidium, and salmonella, which are harmful to humans and animals alike.4 Additionally, nutrients in CAFO waste, like phosphorus and nitrogen, can cause algae blooms that draw dissolved oxygen out of the water and result in fish kills.5 CAFO waste can contain a multitude of other compounds, including the cleaning agents used on the animals and surfaces, hormones given to livestock, milkhouse wastes, and antibiotic-resistant strains of bacteria.

To handle the liquid manure produced by CAFOs, operators commonly spray it on or inject it into the adjacent property or place it in semi trucks for transport to other property to be sprayed or injected.6 The majority of liquid manure sprayed on

 

1 Jacy Reese, US Factory Farming Estimates, SENTIENCE INST., Apr. 11, 2019,

https://www.sentienceinstitute.org/us-factory-farming-estimates

2 ENVIRONMENTAL PROTECTION AGENCY, NPDES CAFO RULE IMPLEMENTATION STATUS – NATIONAL SUMMARY,

ENDYEAR 2018 (2018)

3 Why are CAFOs bad?, SIERRA CLUB: MICHIGAN CHAPTER, https://www.sierraclub.org/michigan/why-

are-cafos-bad

4 Id.

5 Id.

6 Id.

 

fields exceeds the soil’s absorptive capacity, causing leaching nutrients and other compounds into the groundwater.7 The storage lagoons also allow for waste to seep into ground water even with precautions in place, such as clay lining of the lagoon; over the course of a year lagoons can seep 1 to 4.35 millions gallons of waste into the soil.8 Additionally, CAFO waste is highly susceptible to runoff during rain events; lagoons can overflow and manure applied to fields can run off.9 These are merely the dangers associated with water contamination; CAFO present several other additional problems relating to air pollution, animal welfare, and energy consumption.

 

The CWA’s Limited Reach

The CWA is limited in two aspects that allow for CAFOs to escape permitting and regulation under the NPDES: (1) the CWA does not allow EPA to regulate potential discharges, and (2) the Trump Administration’s limiting definition of waters of the United States under the CWA. The CWA is limited in that it can only regulate actual discharges into waters of the United States.

No Regulation of Potential Discharges

The CWA does not allow for the EPA to require NPDES permits from every CAFO merely because they have the potential to discharge. The NPDES program allows for an agency, either EPA or an approved State agency, to set effluent limitation standards as well as qualitative water quality standards when effluent limitations would be insufficient.10 In 2003, EPA published a final rule that would have required any CAFO to apply for a NPDES permit, unless they were able to secure a determination from the director of the relevant permitting authority that there was no potential for discharge.11 This regulation reflected the reality that CAFOs are far more likely than not to have some sort of discharge. However, in Waterkeeper Alliance. v. EPA, the Second Circuit held that this requirement exceeded EPA’s authority under the CWA.12 The court held that EPA’s authorization in the CWA to issue NPDES permits for discharges is limited only to point sources that discharge, not ones that may discharge.13 Discharges require that waste exit a point source into a water of the United States, case law has extended the definition of discharge to include situations where point source stops short of reaching the water directly but effectively reach water. CAFOs while a point source can only be regulated when they are discharging directly into waters of the United States. CAFOs generally spray the waste on fields which can cause runoff or seep into ground water but is not directly sprayed into waters, this means that despite their point source status the wording of the CWA does not allow for direct regulation of every CAFO.

 

7 Sara Kangas, Water Pollution Concerns Surround CAFOs, Nat’l Farmers Union (Oct. 30, 2015), https://nfu.org/2015/10/30/water-pollution-concerns-surround-cafos/

8 Id.

9 Id.

10 33 U.S.C. 1311; 33 U.S.C. 1312(a); 33 U.S.C. 1342

11 40 C.F.R. § 122.23(d)(1)(2003)

12 Waterkeeper Alliance, Inc. v. U.S. E.P.A., 399 F.3d 486 504–506 (2nd Cir. 2005).

13 National Pork Producer’s Council v. U.S. E.P.A., 635 F.3d 738 749 (5th Cir. 2011).

 

The Fifth Circuit extended this logic of the Second Circuit when it evaluated EPA’s 2008 revision of the stricken 2003 regulation. The 2008 revision called for any CAFO that proposed to discharge to apply for an NPDES permit; however, the Fifth Circuit found this too exceeded EPA’s authority under the CWA.14 The CWA does not allow for EPA to require CAFOs to apply for an NPDES permit merely because the CAFO thinks it might discharge. This ruling effectively means that CAFOs can only be regulated after they are already caught polluting in the waters of the United States.

Constraining the Definition of Waters of the United States

The definition of waters of the United States has a further limiting effect on the EPA’s jurisdictional reach under the CWA. The Trump Administration proposed regulation would limit the definition of waters of the United States to eliminate any non-perennial streams. 15 This means that any CAFOs that would be discharging into seasonal or intermittent streams would not be covered under the CWA even if the waste reaches traditionally navigable waters of the United States. This would require EPA to take the further step after investigating whether or not a CAFO discharged into a water to ensure that receiving water is one covered under the CWA even if it is a tributary of traditionally navigable waters. This limiting definition of waters of the United States coupled with EPA’s inability to regulate potential discharges will likely result in many CAFOs taking the risk of getting caught as it is difficult for EPA to upkeep investigations on CAFOs especially unpermitted CAFOs.

 

Future Regulation of CAFOs

Congress should address the lack of regulation of CAFOs by implementing comprehensive legislation allowing EPA to regulate CAFOs for every type of pollution. CAFOs are host to several currently unregulated issues besides water pollution such as air pollution, antibiotics usage, animal welfare, and energy consumption. A comprehensive piece of legislation targeting CAFOs could take the opportunity to address all of these issues beyond just water pollution.

However, with regard to water pollution, Congress should require CAFOs to adhere to NMPs. NMPs detail specific procedures for how the CAFO is to handle its wastes. NMPs include source, rate, timing, form, and method of application for all “nutrients” handled by the CAFO.16 These plans require the CAFO to have data on amount of waste, and the rate at which the waste is accumulated as well as the rate it is applied. This ensures that they are not over applying “nutrients” which may seep into ground water and run off into surface water. Wisconsin requires that all CAFOs submit and adhere to NMP plans, this legislation even goes as far to effect certain AFOs which are situated near state waters.17 Under Wisconsin’s law, the CAFO makes its own NMP which is evaluated by the Department of Natural

 

14 Id.

15 Revised Definition of “Waters of the United States,” 84 Fed. Reg. 4154 (proposed Feb. 14,2019)(to be codified at 33 C.F.R. 328).

16 See e.g. Wis. Admin. Code NR EL 243 (2019).

17 Id.

 

Resources (DNR) to ensure the NMP sufficiently protects water and groundwater quality. Once approved by Wisconsin’s DNR these plans become requirements, along with reporting requirements, that the CAFO must follow which are enforceable by Wisconsin’s DNR. These rules were even challenged as exceeding authority of Wisconsin’s DNR as CAFOs who land applied waste to fields offsite, and were upheld by the Wisconsin Court of Appeals. This has reduced the total number of CAFOs being sited in Wisconsin, but neighboring states with little to no CAFO permitting requirements have seen an increase of the number of CAFOs sited.

Additionally, Wisconsin has recognized that to some extent the legislation is a paper tiger because they don’t have the resources to approve, review, and enforce NMPs for all CAFOs across the state.18 Requiring NMPs for any and every CAFO is a good step for Wisconsin to control pollution in its surface and groundwater, but without the resources to enforce the NMP requirements, these laws do not truly have an effect.

Relying on states to enact their own NMP programs undermines CAFO regulation as it causes a race to the bottom between CAFO friendly states like Iowa and Missouri, and would force the most negative externalities to be felt by the people in these states. Congress must take the step of regulating all CAFOs to avoid a race to the bottom in the states. Under the CWA, NMPs have been part of NPDES permits have been held as a valid exercise of quantitative and qualitative limitations required under the CWA. The Second Circuit even held that these NMPs were a valid exercise of the qualitative standards and must be reviewed by the permitting authority to ensure the programs’ protect water quality standards and compliance with the programs by the permittee.19 NMPs are already part of the landscape of CAFO regulation, and expanding the CWA to require all CAFOs to develop for approval, and adhere to, an NMP would not be unreasonable. Should Congress decide that comprehensive legislation that addresses all of the issues presented by CAFOs is too daunting, implementing a mandatory NMP system for all CAFOs would be an important step in limiting water pollution by CAFOs.

 

18 Danielle Kaeding, Differences Remain Over Addressing CAFO Compliance, Enforcement: More Positions Added To Oversee CAFO Permitting, WISCONSIN PUBLIC RADIO, June 14, 2019, https://www.wpr.org/differences-remain-over-addressing-cafo-compliance-enforcement.

19 Waterkeeper, 399 F.3d at 498–503.

 

18 Danielle Kaeding, Differences Remain Over Addressing CAFO Compliance, Enforcement: More Positions Added To Oversee CAFO Permitting, WISCONSIN PUBLIC RADIO, June 14, 2019, https://www.wpr.org/differences-remain-over-addressing-cafo-compliance-enforcement.

19 Waterkeeper, 399 F.3d at 498–503.

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