In 2008, then-candidate Barack Obama pledged to “strictly monitor and regulate pollution from large[-scale animal farms].”[i] These facilities, known as concentrated animal feeding operations (CAFOs), generate approximately 500 million tons of manure each year—three times the amount of waste the human population of the U.S. produces.[ii]
This waste contains excess nitrogen and phosphorus; pathogens, including bacteria and viruses; antibiotics; and heavy metals such as copper and arsenic. Unlike human waste, livestock waste is not treated. Rather, it is stored in piles, pits, and sheds and spread onto land. These pollutants pose a threat to human health and wildlife and put our nation’s waterways—including the Chesapeake Bay, Great Lakes, and Mississippi River—at risk.
Unlike most agricultural operations, CAFOs are required to obtain permits under the federal Clean Water Act. Even though CAFOs are regulated under federal law, exemptions in the regulations and insufficient state oversight mean that fewer than approximately 43 percent of CAFOs nationwide operate under permits.[iii] An updated permitting rule would increase the number of large livestock operations that are required to obtain and adhere to Clean Water Act permits. By also imposing more stringent requirements for disposing of the overwhelming amount of waste these farms produce, a new rule could help reduce major water quality problems such as the “dead zones” that annually plague huge portions of the Chesapeake Bay and Gulf of Mexico.
What’s the Holdup?
In the early 2000s, the Environmental Protection Agency (EPA) took another look at its CAFO regulations, which had not been updated since the 1970s. The EPA started off relatively strong with a 2003 rule that attempted to cover nearly “60 percent of all manure generated by operations that confine animals.”[iv] A variety of groups sued, with industry organizations led by the National Pork Producers Council and American Farm Bureau Federation on one side and environmental groups on the other.[v] The Second Circuit decided in part in industry’s favor and overturned the portion of the rule that imposed a duty on all CAFOs to either apply for a permit or demonstrate that they have no potential to discharge.
The EPA responded to the Second Circuit decisions by issuing new regulations in 2008 that shrank federal oversight—the rule required 25 percent fewer operations to obtain permits than the 2003 regulation had.[vi] Once again, the National Pork Producers Council and the American Farm Bureau Federation sued, stalling the regulation and resulting in what is effectively a “catch me if you can” approach to permitting operations. The 2008 rule had required CAFOs that discharged or proposed to discharge to apply for a permit under the Clean Water Act’s permitting program. The propose-to-discharge requirement would have required CAFOs with the potential to discharge to obtain a permit, ensuring that more farms were operating under enforceable pollution limits. The Fifth Circuit vacated that portion of the rule, holding that only CAFOs with existing discharges were required to apply for a permit.[vii]
Shortly after the Fifth Circuit decision, the EPA again considered updating its CAFO rule. In 2009, the Chesapeake Bay Foundation (CBF) sued EPA for its failure to enforce an interstate agreement to restore the Chesapeake Bay.[viii] The parties settled, with the EPA agreeing to revise its Chesapeake Bay-specific CAFO regulations, among other concessions.[ix] The original settlement called for a proposal by June 2012. After that deadline was extended into 2013, the EPA indicated that it was considering any update of CAFO rules. By July 2013, however, CBF and the EPA had agreed to abandon the rulemaking, concerned that any new rule would be challenged and serve only to further dilute EPA oversight.[x] Instead, they arranged for the EPA to review CAFO programs in each Bay watershed state by June 2015 to determine whether they were likely to meet applicable Bay cleanup goals. Of course, CAFOs are not confined to the Chesapeake Bay region. Proper regulation requires a nationwide solution.
Separately, the EPA was also considering a reporting rule that would have required CAFOs to report basic information directly both to the agency and to the states. Even though Clean Water Act regulations have been on the books for decades, the Government Accountability Office found that the EPA “does not have the information it needs to effectively regulate these CAFOs.”[xi] The common-sense recordkeeping rule would have required CAFOs to disclose information such as their location, size, ownership, waste management procedures, and history of illegal discharges, as well as whether they had a federal permit. The agency withdrew the rule in summer 2012, limiting the EPA’s knowledge of CAFOs to the insufficient information collected by the states.
What Should the Rule Do?
The EPA should pursue a rulemaking to significantly strengthen the current permitting requirements and effluent limitation guidelines for CAFOs and provide for greater transparency. The new rule should include:
A narrowed definition of “agricultural stormwater” that ensures that more runoff of land-applied manure is regulated under Clean Water Act permits. Despite court setbacks, the Clean Water Act gives the EPA the authority to control pollution associated with the waste generated by CAFOs. The EPA and states can reasonably conclude that any discharge from a CAFO—including from the land application area—is not exempted agricultural stormwater, and should help determine whether a CAFO needs a permit.
Smaller size thresholds to ensure that more facilities are considered CAFOs. The rule should decrease the minimum number of animals that constitute a regulated facility so that more farms, and therefore more waste, are covered under the federal permitting process.
Increased oversight and control of CAFO-generated manure that is transported and applied away from the CAFO. Manure contains a potent cocktail of chemicals and nutrients that are harmful to humans and water quality. To ensure proper management, waste that is transported away from CAFOs should be tracked until it reaches its ultimate land application or disposal site, similar to the cradle-to-grave process used for hazardous waste under the Resource Conservation and Recovery Act.
Explicit recognition that integrators that make management decisions about CAFO operations are also responsible for the CAFO’s waste stream. Under the current food production system, small farmers contract with large companies such as Perdue (“integrators”) to raise the companies’ animals. Integrators control all phases of production, from the amount of food provided to animals to the temperature of their pens, but have so far escaped the liability and costs associated with disposing of animal waste. The rule should mandate shared responsibility for the disposal of CAFO waste between integrators and growers, similar to what the EPA proposed when it was drafting its 2003 CAFO rule.[xii]
Strengthened requirements for nutrient management plans and other pollution control standards. As occurs in large human settlements, improper management of the highly concentrated manure produced by CAFOs can and does overwhelm natural cleansing processes. Humans have intricate sewage systems and wastewater treatment plants. CAFOs do not. Nutrient management plans and other requirements that govern the application, handling, and disposal of manure should be strengthened to minimize runoff.
Enhanced transparency of permit records and additional water quality monitoring and reporting requirements. Unlike many other sources of pollution, the EPA does not have facility-specific information for all CAFOs in the United States, which, according to the EPA, is “essential information” needed to carry out the Clean Water Act.[xiii] In addition to requiring that CAFOs report basic information to the EPA, a new rule must increase reporting and monitoring requirements to better track air, water, and land emissions from facilities. That information will enable policymakers to better evaluate the public health implications of these emissions.
The Obama Administration should work quickly and direct the EPA to introduce a comprehensive CAFO rule. Though President Obama has a little over two years left in his presidency, large, complex rulemakings such as this can often take much longer to complete. By making the rule a high priority, the Administration could meet even this expedited timeline. But, President Obama will need to get to work immediately to have any chance of fulfilling his promise to “strictly . . . regulate pollution” from massive animal farms. In particular, to ensure that the rulemaking is completed before the end of the Obama Administration, the EPA must commit to issuing a proposed CAFO rule by no later than April 2015 and a final rule by no later than June 2016.
[iv] National Pollutant Discharge Elimination System Permit Regulation and Effluent Limitation Guidelines and Standards for Concentrated Animal Feeding Operations (CAFOs), 68 Fed. Reg. at 7180.
[v] Waterkeeper Alliance Inc. v. EPA, 399 F.3d 486 (2d Cir. 2005).
[vi] Revised National Pollutant Discharge Elimination System Permit Regulation and Effluent Limitation Guidelines for Concentrated Animal Feeding Operations in Response to Waterkeeper Decision, 71 Fed. Reg. 37744, 37774 (proposed June 30, 2006) (to be codified at 40 C.F.R. pts. 122 & 412).
[vii] National Pork Producers Council v. EPA, 635 F.3d 738 (5th Cir. 2011).
[viii] Fowler v. EPA, No. 1:09-cv-00005-CKK (D.D.C. 2009).
[ix] Settlement Agreement between the Envtl. Protection Agency & the Chesapeake Bay Foundation 19 (Nov. 10, 2010) (on file with the authors).
[xi] U.S. Gov’t Accountability Off., Concentrated Animal Feeding Operations: EPA Needs More Information and a Clearly Defined Strategy to Protect Air and Water Quality from Pollutants of Concern 5 (GAO-08-944, 2008), available at http://www.gao.gov/new.items/d08944.pdf.
[xii] For its 2003 CAFO rulemaking, the agency initially proposed requiring integrators that exercise sufficient control over an operation to obtain a permit. Known as “co-permitting,” the provision would have required: “Any person who is an ‘operator’ of a CAFO on the basis that the person exercises substantial operational control of a CAFO (see § 122.23(a)(5)(ii)) must apply for a permit. Such operators may apply for an NPDES permit either alone or together as co-permittees with other owners or operators of the CAFO.” National Pollutant Discharge Elimination System Permit Regulation and Effluent Limitations Guidelines and Standards for Concentrated Animal Feeding Operations, 66 Fed. Reg. 2960, 3136 (proposed Jan. 12, 2001) (to be codified at 40 C.F.R. pts. 122 & 412).
[xiii] National Pollutant Discharge Elimination System (NPDES) Concentrated Animal Feeding Operation (CAFO) Reporting Rule, 76 Fed. Reg. 65431, 65433–34 (proposed Oct. 21, 2011) (to be codified at 40 C.F.R. pts. 9 & 122).