EPA Launches CAFO Regulations Review

LINCOLN, Neb. (DTN) -- EPA is launching a study of pollution generated by confined animal feeding operations after the agency rejected two petitions by environmental groups from 2017 and 2022 to make wholesale changes to CAFO regulations.

The EPA announced plans to form a federal advisory subcommittee to study CAFOs sometime in 2024. The process is expected to take 12 to 18 months, according to a letter sent to the environmental groups that petitioned EPA in 2017.

The National Cattlemen's Beef Association issued a statement on Wednesday lauding the EPA's decision.

"NCBA appreciates the EPA recognizing that America's farmers and ranchers are committed to ensuring clean water and investing in a sustainable future," NCBA Chief Counsel Mary-Thomas Hart, said in a statement.

"By rejecting these two petitions that sought to directly attack animal agriculture, the EPA is protecting cattle producers from frivolous distractions and allowing them to return to the important job of stewarding our natural resources and feeding the nation."

The 2022 petition filed by numerous state-level clean water advocacy groups as well as Friends of the Earth, Earthjustice, Humane Society of the United States and others, asked the EPA to adopt a presumption that large CAFOs using wet manure management systems discharge pollutants.

The 2017 petition filed by Food and Water Watch, Center for Food Safety and others asked the agency to change CAFO regulations to assume a number of things.

That includes CAFOs with certain production-area characteristics actually discharge; that regulations should assume CAFOs applying manure to land as fertilizer actually discharge; to revise EPA interpretation of the agricultural stormwater exemption to clarify that it does not include any CAFOâ??related discharges, among other requests.

Back in April, the EPA committed to answering the 2017 petition. In January 2023, the agency announced a plan to determine ways of strengthening the Clean Water Act in its effluent limitation guidelines, in response to a 2021 lawsuit.

Another lawsuit filed in 2022 was stayed by the U.S. Court of Appeals for the Ninth Circuit. The environmental groups agreed to drop that lawsuit by Aug. 29, 2023, if EPA responded by Aug. 15.

LETTER TO GROUPS

In a letter to Food and Water Watch on Tuesday, EPA said the 2017 petition asked for a number of CAFO regulation changes that were already rejected by courts.

In 2003, EPA proposed a major revision to its CAFO regulations.

Among other provisions, the rule required "all CAFO owners or operators to seek coverage under an NPDES (National Pollution Discharge Elimination System) permit," unless they affirmatively demonstrate that they have "no potential to discharge."

The U.S. Court of Appeals for the Second Circuit vacated that aspect of the 2003 rule, holding it unlawfully "imposes obligations on all CAFOs regardless of whether or not they have, in fact, added any pollutants to the navigable waters, i.e., discharged any pollutants."

In 2008, EPA revised its regulations to try to require a permit for any CAFO with a "potential to discharge" and the revised rule called for a "case-by-case evaluation by the CAFO owner or operator as to whether the CAFO discharges or proposes to discharge from its production area or land application area."

EPA's requirement that discharging CAFOs or those that propose to discharge obtain a CAFO permit, was vacated in a challenge to the 2008 rule.

"It is difficult to distinguish between the petition's request that EPA establish a rebuttable presumption that CAFOs with certain characteristics actually discharge -- based on factors such as proximity to jurisdictional waters, climatic conditions, whether precipitation exceeds evaporation, production area drainage, and others -- and the approach EPA used in the 2008 rule," EPA said in the letter to Food and Water Watch this week.

Food and Water Watch said in a news release on Tuesday the Biden EPA missed an opportunity to tighten CAFO regulations.

"Factory farms pose a significant and mounting threat to clean water, largely because EPA's weak rules have left most of the industry entirely unregulated," Food and Water Watch Legal Director Tarah Heinzen said in a statement.

"EPA's deeply flawed response amounts to yet more delay, and completely misses the moment. For more than 50 years, EPA has knowingly shirked its crystal-clear obligation to regulate factory farms under the Clean Water Act. The lack of urgency displayed in EPA's decision doubles down on the agency's failure to protect our water, and those who rely on it."

In the letter to Food and Water Watch, the EPA said it was trying to balance the needs of CAFO operators while protecting water through regulation.

"EPA shares your commitment to fulfilling the goal of the CWA, to restore and maintain the integrity of the nation's waters, in this case by addressing discharges from CAFOs," the letter said.

"EPA also shares your concern that CAFOs can be a significant source of pollutants into waters of the United States. The agency recognizes that there may be opportunities to do more to address these pollutants. Indeed, many CAFO owners and operators, as well as federal and state agency staff, have experienced challenges effectively implementing and assuring compliance with the current CWA CAFO regulatory requirements."

The agency said it expects to issue a request for subcommittee nominations sometime this fall and will appoint 10 to 20 members.

"After conducting the ELG detailed study and engaging with the AAWQ subcommittee, and reviewing their conclusions and recommendations, EPA will consider whether to revise its regulations," the agency said in the letter.

"Specifically, EPA will assess whether it can address water quality concerns related to CAFOs through improvements to implementation, enforcement and other non-regulatory initiatives, or whether regulatory revisions are appropriate. The 2017 petition requests that EPA establish a presumption that CAFOs that apply manure to land as fertilizer actually discharge."

Read more on DTN:

"CAFOs May Face Tougher Water Standards," https://www.dtnpf.com/…

"Enviros Petition EPA on CAFO Regulation," https://www.dtnpf.com/…

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

Follow him on Twitter @DTNeeley

(c) Copyright 2023 DTN, LLC. All rights reserved.