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(Posted by Scott Edwards.)
Next year will mark the 40th anniversary of the Clean Water Act. In the four decades since this seminal water protection legislation was passed, there has been tremendous headway in controlling many of the worst sources of industrial toxics in our nation’s waterways, particularly from those end-of-the-pipe “point sources.” Unfortunately, though, there’s one industrial point source that continues to evade any meaningful CWA regulation — Concentrated Animal Feeding Operations, or CAFOs. Now, after many years of failing to implement effective CWA provisions to clean up this highly polluting industry, the Environmental Protection Agency is engaging in an information gathering process to consider how best to regulate the country’s tens of thousands of industrial animal farms. Sadly, all indications are that EPA is still not taking its mission seriously when it comes to CAFOs.
In 2008, EPA issued its latest CWA rule for CAFOs, requiring permits for any facility that discharged or “proposed to discharge” pollutants to our waterways. The problem with the rule was that it never really defined what “proposed to discharge” meant. Some EPA regional offices thought that CAFO operators would have to walk in and tell agency officials that they proposed to discharge pollutants, which was never going to happen. More progressive regional offices, and eventually EPA headquarters in guidance documents, took the position that “propose to discharge” meant that if you operated and maintained a facility in a way that would likely lead to discharges — roofs resulting in water runoff, ditches that drained off farms, etc. — then you “proposed to discharge.”
Foreseeably, EPA’s “proposed to discharge” standard resulted in litigation. Environmentalists challenged the rule because the “propose to discharge” standard was too vague and left too many polluting CAFOs out of the permitting requirements; industry challenged it because they thought that only CAFOs with documented discharges should be forced to get permits. Where the environmental petitioners eventually settled their claims in exchange for the guidance referenced above and a robust CAFO industry information gathering under section 308 of the CWA, industry challengers continued to court and, in a 5th Circuit ruling last year, got the “propose to discharge” standard thrown out. So today we’re once again left with a CAFO rule that has little meaning and even less potential to clean up this inherently dirty industry.
EPA got itself, and us, into this mess because it didn’t have the political courage to do what needed to be done in the first place. After its 2003 CAFO rule was remanded by the 1st Circuit, the court invited EPA to adopt an industry-wide “presumption of discharge” of pollutants from CAFOs. A presumption standard would have been easily supported by the well-documented reality that CAFOs are having devastating impacts on our bays, rivers, lakes and drinking water supplies. Study after study shows that where there are CAFOs, there are water quality problems — the Chesapeake Bay is testament to that undeniable fact.
Instead, in its 2008 CAFO rule resurrection, EPA tried to walk a very wobbly tightrope with their “propose to discharge” approach, until the 5th Circuit pushed them off.
The answer to the 5th Circuit ruling is obvious; EPA needs to do what it should have done years ago and adopt the presumption standard. EPA claims that they don’t have enough information about the industry on hand to adopt a presumption, but that simply doesn’t make sense. In fact, while the 5th Circuit was gutting EPA’s 2008 rule, the Michigan courts were upholding that state’s “presumption of discharge” standard based on a review of the very same impact data that EPA could have, and still can, rely on to support its own presumption.
Yet, giving EPA the benefit of the doubt and accepting that it needs to build the record to support a presumption approach to CAFOs, the currently proposed 308 rule doesn’t go anywhere near far enough. Under the settlement agreement, EPA was supposed to collect all kinds of information about these operations including their manure handling details, land application acreage, nutrient management plan materials and a host of other information. The settlement agreement lists 14 types of information that EPA should be seeking in its 308 process.
Instead, EPA has proposed a rule that only seeks the most basic of information — they’ve abandoned their commitment to find out how much manure is generated by these facilities, the identity of the integrators, and most of the manure handling information. If EPA’s position is that it truly doesn’t have enough data to support a presumption of discharge, then the proposed 308 rule does nothing to remedy that lack of information.
EPA is running out of chances to do the right thing when it comes to the biggest point source polluters in the country. Our federal and state regulators have been dancing around this industry for the past 40 years and its time for the dance to end. EPA can begin by implementing a comprehensive information gathering process that fully supports the adoption of a presumption standard for a not-too-distant future CAFO rule that ensures that every CAFO in the country is carefully and properly permitted. Perhaps then we’ll see some changes in water quality around the country, including the Bay.