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clean water act
The EPA Must Do Its Job and Regulate Factory Farms
Under the Clean Water Act, the agency should protect our water from harmful factory farm pollution, but the agency’s regulations have been failing for decades to achieve the act’s most basic requirements.
Sep 29, 2024
By design, factory farms generate stunning amounts of waste from the thousands or even millions of animals they confine. And while the industry swears it treats that waste “responsibly,” neighboring communities know otherwise.
Under the Clean Water Act, the Environmental Protection Agency (EPA) should protect our water from harmful factory farm pollution. But the agency’s regulations have been failing for decades to achieve the act’s most basic requirements, a fact that EPA admits.
According to the agency’s own data, roughly 10,000 of the nation’s largest factory farms, also known as concentrated animal feeding operations (CAFOs), are illegally discharging dangerous pollution to waterways without the required federal permit. As a result, we’re facing a pollution crisis of epic proportions, threatening our drinking water, health, and environment.
When allowed to handle their waste cheaply, with little regard for the toll on people and the environment, their profit margins soar.
So in 2017, we led dozens of allies to petition EPA to strengthen its regulations to ensure all polluting CAFOs have Clean Water Act permits that effectively protect waterways as the law requires. When it denied our petition and refused to act, we sued.
A host of industry groups representing factory farm interests intervened in the case to defend EPA’s refusal to act. This comes as no surprise, as the industry has long peddled misleading arguments and downright lies to preserve the status quo. That’s because factory farms reap huge benefits from the lack of regulation. When allowed to handle their waste cheaply, with little regard for the toll on people and the environment, their profit margins soar.
This September, I countered those arguments in person before the federal Ninth Circuit Court of Appeals, explaining why EPA must strengthen its CAFO regulations to safeguard our water and our health.
Here’s the truth behind three false claims industry is pushing:
1. The Harms of Factory Farm Manure “Management” Are Clear
In their brief, industry groups claim that “modern feeding operations are designed and engineered to produce healthy animals and minimize environmental impacts from manure.” This is patently false. The industry employs—and EPA’s lax regulations allow— the cheapest waste management practices possible, with little concern for public health or the environment.
For instance, factory farms store millions of gallons of waste in open cesspools that are designed to leak, threatening drinking water. And because hauling waste away is expensive, they dump as much as they can onto nearby fields, where it runs off into waterways.
We, the scientific community, and EPA all know that lax regulations have fueled the current factory farm pollution crisis.
This is a main reason why CAFOs’ waste is such a big threat to our water. They claim they’re using this waste to fertilize crops, but in reality, they apply far more than the land or plants can absorb. It’s also common practice to dump waste on land that has no hope of absorbing any of it, including fields frozen solid in the dead of winter.
There is a trove of scientific literature documenting all of this, and even EPA concedes that its faulty regulations are to blame. Yet, EPA claims it lacks enough information to improve its regulations. This reasoning is frankly ridiculous, especially since the agency admitted it had not even reviewed the thousands of pages of scientific and government data we gave to it when we submitted our petition, including research it conducted itself.
In their brief, industry groups aim to sow doubt on this topic, but we, the scientific community, and EPA all know that lax regulations have fueled the current factory farm pollution crisis.
2. Factory Farms Benefit from a Gaping Regulatory Loophole That EPA Can and Must Close
The industry also defended an EPA rule that has created a loophole enabling thousands of CAFOs to circumvent the law. Under the Clean Water Act, polluting facilities must get a permit that requires them to limit and monitor their pollution discharges.
However, since 2003 EPA has chosen to interpret the statute in a way that exempts a huge portion of factory farm pollution from regulation. This “agricultural stormwater” exemption has also allowed the vast majority of factory farms to evade permitting requirements altogether, even for pollution that doesn’t fall under the exemption.
So we’re not surprised that the industry is determined to preserve this loophole. In its brief, it falsely claims that federal law requires EPA to apply this exemption to CAFOs. But in fact, the congressional and regulatory records make clear that legislators never intended for the exemption to apply to CAFOs or their waste disposal practices, and EPA understood that.
Contrary to industry claims, EPA applied this exemption to factory farms by its own discretion; the law did not compel them to. Now, in the face of substantial evidence that thousands of operations are exploiting this free pass, EPA can and must narrow the exemption and place stringent regulations on polluting factory farms, as Congress intended.
3. The Status Quo Is Failing to Prevent Pollution
Finally, industry groups argue that the current regulatory regime is working. They even point to Iowa and North Carolina as shining success stories for manure management. What they fail to mention is that these states have some of the worst factory farm-polluted waters in the country, because state regulators allow these operations to pollute with impunity. In fact, these states have laws that prohibit their environmental agencies from passing factory farm water pollution regulations more stringent than EPA’s.
EPA itself admits its primary pollution control strategy, “nutrient management plans,” are inadequate. For decades, the agency has assumed these plans minimize pollution runoff from fields applied with manure. That’s what the industry would like us to believe, too. But the truth is—as EPA recently acknowledged—nutrient management plans don’t do enough to protect against pollution because that’s not even their main focus.
The reality is that the status quo is not protecting rural communities from harmful factory farm pollution.
Instead, they prioritize “maximizing crop growth” where manure is applied. To fulfill its obligations under the Clean Water Act, EPA must stop pretending that nutrient management plans are a silver bullet for factory farm pollution.
The reality is that the status quo is not protecting rural communities from harmful factory farm pollution. Weak state regulations matter even less when the national permit program—the bedrock of factory farm pollution regulation—isn’t effective. EPA can and must overhaul its factory farm regulations.
The EPA Must Hold the Industry Accountable
EPA’s foot-dragging is welcome news to the factory farm industry. Under the agency’s current regulations, factory farms can continue cutting costs through irresponsible manure handling. They can dump the costs of their waste onto their neighbors, leaving rural communities with undrinkable water, health problems, and devastated quality of life.
This needs to change. EPA must stop toeing the industry line and finally stop this pollution.
Arguing before the court in September, EPA agreed the factory farm pollution problem was severe, but it swore up and down it was taking it seriously, pointing to an ongoing study Food & Water Watch forced the agency to launch through other litigation and an advisory committee it convened after denying our petition.
However, these are simply delay tactics. The study focuses narrowly on pollution standards that only apply to permitted factory farms, even though the heart of the problem is that thousands of factory farms don’t have permits to begin with. To add insult to injury, the study group is controlled by industry representatives. It’s simply not believable that the study process will lead to stronger environmental protections.
EPA’s weak arguments underscore what we’ve known for years: to address this pollution crisis, the agency must step up and strengthen its regulations. Not only do suffering communities need EPA to do its job, but the law demands it.
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Complying With Right-Wing Supreme Court, Biden EPA Guts Wetland Protections
"Congress and local elected officials must now step in and do more to protect clean water through durable legislation and state-based action," said one advocate.
Aug 29, 2023
Under a U.S. Supreme Court ruling condemned by clean water advocates earlier this year, the Environmental Protection Agency on Tuesday announced a revised rule that could clear the way for up to 63% of the country's wetlands to lose protections that have been in place nearly half a century under the Clean Water Act.
EPA Administrator Michael Regan said he had been "disappointed" by the 5-4 decision handed down in Sackett v. Environmental Protection Agency in May, but he was obligated under the ruling to issue a final rule changing the agency's definition of "waters on the United States."
As Common Dreams reported, the high court ruled in May that the Clean Water Act protects waters and wetlands that have a "continuous surface connection to bodies that are waters of the United States in their own rights," such as major rivers and coastlines.
Prior to the ruling, the Clean Water Act protected wetlands as long as they had a "significant nexus" to regulated waters, but the EPA rule removes that test from consideration when determining if a waterway should be protected. The rule will leave streams and tributaries—and the communities adjacent to them—without protections from pollution that can be caused by housing and business development, mining, pipeline construction, and a number of industries.
The ruling and resulting EPA rule reflected "the Supreme Court's disturbing pattern of striking down environmental regulations to serve industry interests," said environmental law group Earthjustice on Tuesday.
An EPA official toldThe Washington Post that an estimated 1.2 million to 4.9 million miles of ephemeral streams across the U.S. would immediately lose protections now that the final rule has been issued.
Julian Gonzalez, a water policy lobbyist with Earthjustice, told the Post that changing the rule is "not necessarily what they want to do" at the EPA, while Patrice Simms, the group's vice president of litigation for healthy communities, called the court's ruling a "politically motivated decision" that "ignores science and flies in the face of what almost everyone knows: that we all need clean water."
"The Supreme Court's right-wing supermajority's disastrous ruling in Sackett v. EPA reduced EPA's ability to protect our wetlands and waters from destruction and contamination," said Simms. "The new rule from EPA adjusts its existing regulations to comport with Sackett and reflects our dangerous new reality—one where mining companies, Big Ag fossil fuel developers, and other polluting industries can bulldoze and fill wetlands indiscriminately, harming our public health and ecosystems."
With state regulatory agencies and legislatures now empowered to determine how wetlands are protected, Earthjustice said waterways in states including Texas, Kentucky, Oklahoma, and Colorado are the most vulnerable to industrial pollution. States including Vermont, New York, and Minnesota currently have some of the strongest protections in place.
Marc Yaggi, CEO of Waterkeeper Alliance, said that with the climate and pollution crises becoming increasingly destructive, "there could not be a worse time to weaken the Clean Water Act."
"Intensifying droughts are wreaking havoc on agriculture, pollution and toxins are increasingly threatening water sources nationwide, and millions of people are contending with dangerously contaminated drinking water," said Yaggi. "Congress and local elected officials must now step in and do more to protect clean water through durable legislation and state-based action."
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EPA Proposal Could Embolden Industry to 'Destroy Wetlands and Pollute Our Waters'
"We have seen states like Florida work with the Trump administration, cutting corners to unlawfully take this permitting authority from federal agencies, with disastrous consequences," noted one lawyer.
Jul 19, 2023
An environmental law group on Wednesday sounded the alarm over a proposed Biden administration rule intended to "streamline and clarify the requirements and steps necessary for states and tribes to administer programs protecting waterways from discharges of dredged or fill material without a permit."
Earthjustice warned in a statement that the new U.S. Environmental Protection Agency (EPA) proposal—for which the administration will now accept and consider public comment—could "allow more pollution and reckless development" in U.S. waterways and wetlands.
The rule pertains to Clean Water Act (CWA) Section 404 permitting. While the U.S. Army Corps of Engineers administers it for most of the country, three states—Florida, Michigan, and New Jersey—have been granted the authority to run their own programs with federal oversight.
"EPA must ensure protections for waters and affected communities remain in place through this process, rather than just respond to states' and industry predilection."
However, as E&E Newsreported in May, "at least two Republican-led states, Alaska and Nebraska, and one led by a Democrat, Minnesota, are on a quest to oversee a dredge-and-fill permitting program that influences construction projects with implications for federally protected waters."
E&E News noted that the EPA confirmed it was "having discussions with the trio of states about the possibility of shifting primacy over the permitting program" as the agency continued to work on the proposal that was unveiled Wednesday.
EPA Assistant Administrator for Water Radhika Fox said Wednesday that the pending rule "will support co-regulator efforts to administer their own programs to manage discharges of dredged or fill material into our nation's waters."
Meanwhile, Julian Gonzalez, senior legislative counsel for Earthjustice's Healthy Communities program, argued that "EPA must ensure protections for waters and affected communities remain in place through this process, rather than just respond to states' and industry predilection without considering the pitfalls and reduced water protections that may follow."
"Most recently we have seen states like Florida work with the Trump administration, cutting corners to unlawfully take this permitting authority from federal agencies, with disastrous consequences," he said. "It is up to EPA to ensure that it will not happen again. Florida will not be the last state that tries to erode federal oversight of our waters and wetlands by taking over 404 permitting while avoiding accountability."
During former President Donald Trump's final months in office, Republican Florida Gov. Ron DeSantis—now one of Trump's competitors for the GOP's 2024 presidential nomination—successfully sought to assume control of 404 permitting for the state, which outraged green groups including Earthjustice.
As Bloombergreported in April:
The takeover was a big bet that states can both streamline development and better control water pollution than the federal government can. It has provided an early window into how DeSantis might view environmental regulation as president if he decides to run.
But two-and-a-half years into the state takeover, it isn't yet the deregulatory panacea state officials and the EPA had hoped for.
Gonzalez asserted Wednesday that "EPA must retain robust oversight of the 404 permitting process, set strong minimum standards that all states must meet before they can assume a 404 program, and ensure this rule does not result in lesser federal protections under the CWA and other protective laws triggered by federal permits, like the Endangered Species Act."
"EPA must ensure that the final version of this rule reflects the concerns of affected communities, which have been fighting attacks on the Clean Water Act, and who have not been consulted on this issue at all," he added. "A weak framework for 404 assumptions will further embolden the industry's deregulatory agenda to destroy wetlands and pollute our waters in the name of profit. We look forward to giving EPA additional feedback on this important rule."
The EPA proposal comes after the U.S. Supreme Court's right-wing majority in May issued a ruling in Sackett v. EPA that Earthjustice called "a catastrophic loss for water protections across the country and a win for big polluters, putting our communities, public health, and local ecosystems in danger."
The high court was criticized for taking the case as the EPA was working on a new "waters of the United States" (WOTUS) rule that was finalized in December—and which Republicans in Congress, with the help of a few Democrats, recently tried to kill, provoking a veto from Biden.
Despite the veto, congressional opponents of Biden's WOTUS rule have not given up. The GOP-controlled U.S. House Appropriations Committee Appropriations on Wednesday approved a sweeping bill for fiscal year 2024 that would repeal the policy.
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