Here is a dirty little secret that the Environmental Protection Agency doesn’t want the public to know.

If the agency doesn’t feel like responding to citizen complaints and petitions for review it just tosses them into review purgatory and dares petitioners to do something about it. Right now there are 836 — yeah, 836 — petitions awaiting EPA adjudication dating back to February of 2013. It’s a little bit — OK a lot — like Waiting for Godot.

EPA has been sitting on a petition from Food and Water Watch and a host of other organizations requesting overhaul of water pollution regulations for concentrated animal feeding operations since 2017.

CAFOs deemed by EPA to present the highest risk of impairing water quality are largely regulated by a 2003 rule requiring animal feeding operations that discharge manure, litter or process wastewater to waters of the U.S. to apply for a National Pollutant Discharge Elimination System permit. The rule also included requirements covering spreading of manure.

Back then there was a huge food fight between CAFO industry organizations and environmental groups that eventually landed in the laps of the Second Circuit Court of Appeals. In Waterkeeper Alliance et al. v. EPA, the court handed some rulings favorable to CAFOs. Notably the court:

• Held that the 2003 CAFO rule violated the Clean Water Act because EPA failed to determine best conventional technology effluent guidelines for pathogens. The court remanded the issue back to EPA for further study and finding.
• Determined that agricultural stormwater is exempt from NPDES. The court also directed EPA to “clarify the statutory and evidentiary basis for failing to promulgate water quality-based effluent limitations for discharges other than agricultural stormwater discharges, as that term is defined in 40 C.F.R. § 122.23(e), and to “clarify whether States may develop water quality-based effluent limitations on their own.”

Environmental groups have been challenging Waterkeeper Alliance ever since. For its part, EPA has slow walked updating CAFO pollution regulation. In March 2017, Food and Water Watch and a host of other environmental groups said enough is enough, filing a petition for review with EPA demanding the agency get off its collective backside and do something, anything, about CAFO poop.

Among the Food and Water Watch demands to EPA: (1) issue a finding that agricultural stormwater discharges from CAFOs are no longer exempt as non-point source pollution, and (2) require water-quality monitoring in CAFO NPDES permits to ensure compliance with the CWA and permit terms.

You will not be shocked to learn that EPA promptly tossed the request into purgatory review where it has sat the past six years. Meanwhile CAFOs — protected by EPA and the courts — are increasingly a huge health risk.

Well, the times they are a-changin‘. Watching the seasons pass, Food and Water Watch sued EPA last year because the agency has ignored its 2017 petition.

In April, Food and Water Watch announced what must have been behind-the-scene discussions with EPA that resulted in an agreement, signed off by the U.S. Court of Appeals for the Ninth Circuit.

• By Aug. 15, 2023, the EPA will respond to the petition to revise the Clean Water Act regulations for concentrated animal feeding operations, submitted by petitioners to EPA on March 8, 2017 (“the Administrative Petition”).
• By Aug. 22, 2023, the parties will file in this court a joint status report summarizing the status of the case and proposing any further proceedings.
• By Aug. 29, 2023, petitioners will move for voluntary dismissal of this petition for writ of mandamus if EPA has responded to the administrative petition by Aug. 15, 2023.

Meanwhile the Food and Water Watch et. al. v. U.S. EPA is stayed till Aug. 22.

For far too long, CAFOs have largely had it their own way.

EPA data says just 6,266 of 21,237 large CAFOs (defined as having at least 1,000 beef cattle or immature dairy cows, at least 700 mature dairy cows or at least 500 swine) have NPDES permits. Loopholes allow many CAFO owners to avoid federal permitting or operate under state laws that are less protective of water quality.

Naturally, there were howls of protest from CAFOs and their representatives over this latest turn of events. National Pork Producers Council chief legal strategist Michael Formica says, “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.”

National Cattlemen’s Beef Association chief council Mary-Thomas Hart says, “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.”

Already been solved? Don’t believe what Big Meat is shoveling. Maybe, just maybe, EPA will take a realistic and thoughtful evaluation of CAFO pollution. We won’t have to wait much longer.

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