The federal agency in charge of protecting America’s clean water has settled a lawsuit with an agriculture and environment nonprofit. The Environmental Protection Agency recently announced plans to study contamination from Concentrated Animal Feeding Operations (CAFOs) for the first time in 15 years.

Since the last review in 2008, the number of CAFOs has drastically increased, and their environmental impacts have become more apparent. Technology and practices to reduce pollution have also advanced, but not incorporated into regulations.

CAFOs have become a big issue in the St. Croix River region in recent years. There are only a couple such operations currently, but a proposal by Cumberland LLC for a 26,000-hog operation near its tributary the Trade River has caused much concern. Meanwhile, one of the only existing CAFOs, a 1,500-cow dairy operation near the Willow River called Emerald Sky Dairy, has been blamed for numerous impacts, including runoff that killed fish in a nearby trout stream, and extremely high levels of contaminants in groundwater.

The Clean Water Act of 1972 requires the EPA to analyze annually its guidelines for preventing pollution from such large-scale livestock operations. Since 2017, nonprofit Food & Water Watch has been pushing the agency to update the guidelines, finally filing a lawsuit in 2021.

As a result, the EPA now says it will collect information necessary to consider if it should revise its rules for CAFOs.

“EPA has concluded that it needs to gather additional information to inform a decision as to whether rulemaking to revise the [Effluent Limitations Guidelines] is warranted,” the agency says.

The EPA warned that it must also consider many other issues it is currently considering, such as PFAS, slaughterhouses, and the power industry, as it decides how to allocate its resources for the CAFO review.

Food & Water Watch hailed the agreement as a major milestone for addressing a pollution problem of increasing concern.

“For decades, EPA has turned a blind eye to factory farm pollution. This regulatory negligence has failed to protect sensitive waterways and public health,” said staff attorney Emily Miller. “Answering our petition, which sets out a roadmap for EPA to fix this broken system and do its job, is the first step towards putting meaningful protections in place. After six years of delay, EPA’s commitment to an August 15 deadline represents a move at lightning speed for the agency — we hope this indicates a commitment to finally give factory farm pollution the attention it requires. We look forward to finally receiving EPA’s decision.”

One complicating part of the review will be an exemption in the Clean Water Act for “agricultural stormwater,” meaning such runoff is largely excluded from federal regulation, while pollution from sources like sewage treatment plants, factories, and other industrial activities is regulated.

Determining how to apply this language to the increasingly large, industrial, and concentrated livestock facilities has been a point of contention.

“EPA interprets ‘agricultural stormwater’ to include any precipitation-related discharges of manure, litter, and process wastewater from the land application areas if the manure, litter, and process wastewater has been applied to the land application area in accordance with a site-specific “nutrient management plan” that ensures appropriate agricultural utilization of the nutrients in the manure, litter, or process wastewater,” the EPA says.

But many environmental groups, including Food & Water Watch, say the EPA has the authority to regulate CAFOs as sources of pollution to public waters. A so-called “rebuttal presumption” would explain why large CAFOs that produce and store liquid manure — like that proposed by Cumberland and used by Emerald Sky Dairy — discharge water pollution and therefore must obtain federal permits under the Clean Water Act.

Last fall, Waterkeeper Alliance and 50 other groups joined a petition calling on the EPA to adopt such a “rebuttal presumption” and begin regulating CAFO pollution like other sources of contamination.

“CAFOs across the country are releasing pollutants, like dangerous pathogens and nutrients that contribute to toxic algal blooms, into waterways in violation of the federal Clean Water Act, which requires permits that prohibit most pollution discharges,” said Kelly Hunter Foster, Waterkeeper Alliance senior attorney.

The group says that more than 70 percent of America’s largest CAFOs don’t have federal permits and, the percentage of unpermitted Large CAFOs has increased substantially as the industry has expanded. As of 10 years ago, large CAFOs generated 404 million tons of manure — more than 20 times the amount of fecal wet mass produced by all humans living across the United States.

Large CAFOs using wet manure management systems — predominately, Large CAFOs that confine swine and dairy cattle — store animal urine and feces in liquid form, a practice that is especially likely to result in water pollution.

The EPA now has until mid-August to review and respond to Food & Water Watch’s original petition calling for regulation revisions. In January, the EPA also agreed to a more comprehensive study of CAFOs and the Clean Water Act.

“If it does its job properly, EPA will soon realize what communities living near factory farms have known for years: EPA has allowed factory farms to pollute egregiously as a matter of course,” said legal director Tarah Heinzen. “When the EPA can no longer hide behind a lack of data, the agency will have no choice but to finally strengthen its regulation of this filthy industry.”

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