Finally. At long last the Environmental Protection Agency has recognized that maybe, just maybe, environmental groups have a point that concentrated animal feeding operations — CAFOs — are a significant source of water pollutants, if not closely managed and monitored.

It’s taken seven years and two lawsuits for EPA to get off the pot to address cattle poop.

But the genesis of the CAFO fight dates back even further to a 2003 EPA rule requiring animal feeding operations that discharge manure, litter, or process wastewater to waters of the U.S. (WOTUS) to apply for a National Pollutant Discharge Elimination System permit.

Both environmentalists and CAFOs sued. Ultimately in 2005, the Second Circuit Court of Appeals ruled against environmental petitioners’ challenge to a CAFO rule exempting agricultural storm water discharges.

“We believe that the CAFO Rule comports both with Congress’ intent in enacting the agricultural stormwater exemption and with our holding in Southview Farm. So far as Congress’ intent is concerned, while the Rule holds CAFOs liable for most land application discharges, it prevents CAFOs from being held liable for ‘precipitation-related discharge[s]’ where manure, litter or process wastewater has [otherwise] been applied in accordance with site specific nutrient management practices that ensure appropriate agricultural utilization.”

Environmental groups have been challenging Waterkeeper Alliance v. EPA ever since. Food and Water Watch and a host of other environmental groups petitioned EPA back in 2017, asking the agency to void the CAFO agricultural stormwater discharge exemption, and require new water quality monitoring rules to insure CAFO compliance with the Clean Water Act. EPA chose not to respond.  

Earthjustice filed a similar petition in 2022, which EPA also ignored.

Fed up with EPA inaction on the CAFO permitting petitions, environmental groups filed yet another lawsuit in October 2022 demanding EPA respond to the petitions and draft stronger CAFO rules.

This past April, EPA and Food and Water Watch announced an agreement approved by the U.S. Court of Appeals for the Ninth Circuit that EPA will at long last provide some answers to CAFO concerns.

In August, EPA sent petitioners a response saying the agency will launch a review of CAFO rules and will “convene an Animal Agriculture and Water Quality (AAWQ) subcommittee under the existing Farm, Ranch, and Rural Communities Federal Advisory Committee to hear from farmers, community groups, researchers, state agencies, and others about the most effective and efficient ways to reduce pollutants generated from CAFOs.”

EPA went as far as acknowledging CAFOs can be a significant source of pollutants, but denied environmental requests for immediate rewrite of CAFO permitting standards including the CAFO stormwater exemption.

So now it’s wait and see. EPA says the AAWQ subcommittee will begin its work next year and fact gathering will take 12 to 18 months.

Naturally, environmental groups were unhappy with the EPA response.  

Food and Water Watch Legal Director Tarah Heinzen said, “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.”

While just about everyone knows CAFOs are potentially a source of water and air pollution, questions remain whether adherence to current CAFO permitting requirements protects the environment. Environmentalists will have a seat at the table of the AAWQ subcommittee. It’s up to them to make a case. Certainly, CAFOs will say everything is perfect as is.

Let the debate begin.

I expect whatever new regulations that might come out of the committee’s work will be almost bulletproof to court challenge. It’s up to the EPA to not mess it up.

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