Enviros Petition EPA on CAFO Regulation

Enviros to EPA: Require CWA Permits on Large CAFOs Using Wet Manure Systems

Todd Neeley
By  Todd Neeley , DTN Staff Reporter
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Environmental groups have asked EPA to require large confined animal feeding operations that use wet manure management systems to apply for Clean Water Act permits. (DTN file photo)

LINCOLN, Neb. (DTN) -- Environmental interest groups want EPA to declare national authority over all large confined animal-feeding operations, or CAFOs, that use wet manure management systems and require those facilities to apply for Clean Water Act permits, according to a petition filed with the agency Wednesday.

Under the current system, EPA and most state environmental agencies depend on self-reporting by CAFOs because EPA and state agencies don't have the resources to investigate most CAFOs' no-discharge claims.

The petition targets predominantly large CAFOs confining swine and dairy cattle. This particular subset of CAFOs confines the majority of swine and dairy cows and generates an "outsize share of manure," according to the petition.

Currently, there are 6,266 large CAFOs that have National Pollution Discharge Elimination System, or NPDES, permits, according to EPA data, https://www.epa.gov/…, although there are 21,237 large CAFOs across the country. The EPA defines a large CAFO as having at least 1,000 beef cattle or immature dairy cows, at least 700 mature dairy cows or at least 2,500 swine.

The groups petitioning EPA include the Waterkeeper Alliance, Sierra Club, American Rivers, Environmental Working Group, Friends of the Earth and others. They've asked the agency to presume large CAFOs that use wet-manure management systems "actually discharge water pollution" and would be required to apply for permits.

"The majority of large CAFOs thus lack water pollution permits altogether or operate under state laws and permits that, as compared with permits issued under the CWA, typically are less protective of water quality, offer less transparency, and provide fewer opportunities for public participation," the petition said.

The groups said that based on EPA's "authority and responsibility" in the CWA and "executive orders aimed at advancing environmental justice," the petition proposes a "significant improvement" to EPA's CAFO regulations.

"Although CAFOs of all types and sizes pollute the nation's waters, large CAFOs using wet manure management systems -- that is, predominately large CAFOs that confine swine and dairy cows -- are an especially significant source of water pollution," the petition said.

"Nationwide, relatively few large CAFOs confine the majority of swine and dairy cows produced in the country, and these facilities generate an outsize share of manure. EPA's current approach to permitting large CAFOs using wet manure management systems, which depends on self-reporting by polluters, falls short of what is required to protect communities and the environment."

Large CAFOs using wet-manure management systems are allowed to self-report to EPA. The groups said in the petition the system "falls short" in protecting communities and the environment.

The petition said the approach violates the Clean Water Act, which makes CAFOs subject to a prohibition on discharges from point sources, except for those facilities that are permitted.

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"This prohibition means that EPA must 'either issue a permit for (a CAFO's) discharge of the pollutant or enforce the total proscription on discharges.," the petition said.

"However, EPA and state agencies are failing to accomplish either directive. Indeed, in four of the top five swine-producing states and two of the top five dairy cow-confining states, fewer than 10% of CAFOs have CWA permits. Yet, ample evidence shows that CAFOs in these states and across the country are causing extensive water pollution."

According to USDA data, just 5% of swine facilities confine more than 5,000 animals each.

"But together, those operations confine 73% of all swine produced in the country," the petition said.

"As for dairy cow facilities, only 4% confine more than 1,000 dairy cows, but those operations account for 50% of all dairy cows. As of 2012, large CAFOs alone generated 404 million tons of manure -- that is, over 20 times the amount of fecal wet mass produced by all humans in the United States. Storing, transporting, and disposing of this waste using wet-manure management systems routinely and predictably results in water pollution."

Michael Formica, chief legal strategist for the National Pork Producers Council, told DTN the pork industry has a strong record on the environment.

"The U.S. pork industry has a strong record of environmental leadership and is proud of its decades-long record as a zero-discharge industry under the federal CAFO rule," he said.

"This petition is another baseless attempt by activists to distract from the real environmental challenges our producers are working hard to address. We will continue to defend the reputation and performance of the industry against these baseless attacks."

Mary-Thomas Hart, chief counsel for the National Cattlemen's Beef Association, said in a statement to DTN the industry doesn't need more regulation.

"This petition is the latest attempt by activists to impede on-farm innovation by asking the EPA to tackle a problem that's already been solved," she said.

"Concentrated livestock operations, including beef cattle feed yards, are required to develop and implement a comprehensive nutrient management plan in order to obtain a Clean Water Act permit. Voluntary conservation will drive the continued environmental sustainability of American agriculture, not new and burdensome permitting requirements."

In May 2022, EPA released a report entitled "EPA Legal Tools to Advance Environmental Justice." The report includes an entire section devoted to the NPDES program, and how CAFOs affect poor communities.

The latest petition is in response to the agency's report.

"As EPA emphasized in a May 2022 report, CAFOs cause grave harms that disproportionately burden environmental justice communities, and existing regulations fail to achieve necessary protections," the petition said.

"This report is a recent entry in the large, well-established, and growing body of evidence showing that CAFOs cause serious harm to human health, degrade the environment and disproportionately burden communities of color and low-income communities. To combat these long-standing and pervasive problems, EPA proposed 'exploring its authority to improve the effectiveness of CAFO regulations.' This petition does just that, and it identifies a clear first step."

A 2008 Clean Water Act CAFO regulation required such facilities that discharge or propose to discharge pollutants into waters of the U.S., to obtain NPDES permits.

At the time the agency set a penalty for failure to apply for permits. EPA gave CAFO operators the ability to make a showing that facilities were designed and operated in a way not to discharge and wouldn't require permits.

In March 2011, however, the U.S. Court of Appeals for the Fifth Circuit ruled the CWA does not require CAFOs to apply for permits.

Read more on DTN:

"Booker Proposes CAFO Moratorium and Return to COOL," https://www.dtnpf.com/…

"Caught in the Crossfire," https://www.dtnpf.com/…

"Environmental Groups Ask EPA to End Ag Stormwater Exemption," https://www.dtnpf.com/…

Todd Neeley can be reached at todd.neeley@dtn.com

Follow him on Twitter @DTNeeley

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Todd Neeley

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