Groups Say CAFO Regulations Needed

LINCOLN, Neb. (DTN) -- Last August EPA rejected environmentalists' petition to tighten regulations on confined animal feeding operations and now those groups are asking the U.S. Court of Appeals for the Ninth Circuit to vacate that agency decision, in an opening brief filed with the court.

Environmental groups led by Food and Water Watch and the Center for Biological Diversity appealed EPA's rejection of the 2017 petition to the appeals court on Sept. 8, 2023.

In the opening brief, the groups said the agency has the authority and should revise its interpretation of the agricultural stormwater exemption, calling the agency's decision to reject the petition wholesale "arbitrary and capricious."

"In its denial, EPA acknowledged that it has authority to address some of the most critical failures of its current regulations including the 'agricultural stormwater exemption' that has enabled most CAFOs to evade regulation but concluded that it need not update its regulations to meet its obligations under the act," the groups said in the brief.

"Instead, the agency plans to further study the issue, ensuring years more delay and perpetuating the ongoing harm that unchecked CAFO water pollution is inflicting on petitioners, their members, and communities across the country."

EPA regulations previously required CAFOs to apply for National Pollution Discharge Elimination System, or NPDES, permits if they planned to discharge pollutants.

In 2011, however, the U.S. Court of Appeals for the Fifth Circuit vacated the requirement.

"As a result, EPA only requires CAFOs to seek NPDES permit coverage if they admit to or are caught discharging," the brief said.

Although current CAFO regulations limit land applications of manure, the groups said the rules "exempt a large swath of land application-related discharges from regulation as 'agricultural stormwater.'"

The groups told the court EPA has "consistently failed" to improve CAFO rules.

"In sum, EPA simply refuses to address CAFO pollution without significant prodding and court intervention," the brief said.

"EPA's stated justifications for the denial are also unreasonable. The agency asserts it cannot engage in a rulemaking because it must first complete further study of CAFO pollution and evaluate ways in which it can improve implementation and enforcement of its existing program.

"But the evidence before the agency demonstrates the urgent need for regulatory reform and EPA has already spent decades trying to improve enforcement of the current program, to no avail. EPA's insistence that it needs more study falls particularly flat because it acknowledges it did not even consider extensive evidence submitted in support of the petition."

Agriculture groups including the National Pork Producers Council, American Farm Bureau Federation, U.S. Poultry and Egg Association and United Egg Producers, have intervened in the case and their opening brief is due on April 26.

Last summer the agency announced the launch of a study of pollution generated by CAFOs after rejecting petitions from environmental groups from 2017 and 2022.

EPA said it would form a federal advisory committee to study CAFOs sometime in 2024. That process is expected to last 12 to 18 months.

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

There is a long history of unsuccessful petitions filed by environmental groups when it comes to CAFO regulations.

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."

Read more on DTN:

"Ag Groups Intervene in CAFO Litigation," https://www.dtnpf.com/…

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

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