A tale of two petitions: EPA proposes meetings instead of federal changes to CAFO rules

posted by Michael Schmidt on Friday, August 25, 2023

EPA plaque outside building doorLast week, U.S. EPA denied two petitions seeking stronger rules governing concentrated animal feeding operations (CAFOs) filed by national and local environmental groups. The petitions sought changes to federal rules that would have required more CAFOs to obtain Clean Water Act permits. CAFOs are mostly unregulated because weak rules often allow them to fall under the agriculture stormwater exemption of the Clean Water Act.

Rather than adopt the changes, EPA is creating a committee to study CAFO pollution for 12 to 18 months. By denying the petitions in favor of convening a committee, the EPA is delaying action that would protect Americans from industrial livestock pollution.  

The Petitions

Food & Water Watch, with partner groups, filed a petition in 2017 requesting EPA adopt a presumption that CAFOs that apply manure to land are in fact discharging pollution. The presumption would limit the scope of the Clean Water Act exemption. It also requested that integrators (businesses that often own the animals in the CAFO) be listed on discharge permits. The petition requested additional monitoring at CAFOs to ensure proper operation, much like IEC did in a petition to Iowa DNR for rulemaking in 2021. The requested changes would set clear requirements for CAFOs to apply for permits and would hold them more responsible for pollution. 

In October 2022, Earthjustice and partners filed a petition on related issues, seeking a rule change to presume CAFOs with wet manure have discharges to water. The petition compiled numerous scientific studies and other information tying excess manure to water quality pollution. It highlighted the risks of manure applied to land with tile drainage, which can quickly route the manure to surface waters. 

EPA failed to respond to the 2017 Food & Water Watch petition, so the organization sued EPA for inaction in 2022. Following the court action, EPA issued a denial of the petition on August 15, 2023. At the same time, EPA provided a similar denial on the Earthjustice petition. 

The EPA ruling

Rather than require permits for more CAFOs or adopt stronger regulations, EPA proposed to create a subcommittee of the Farm, Ranch, and Rural Communities Federal Advisory Committee. The full committee provides advice to EPA on a range of issues, and the new subcommittee will focus on “the impact of CAFOs on water quality.” The EPA denials argued the subcommittee process would be more effective than adopting regulations that would surely be challenged.  

Three CAFO buildings in a field EPA has tried repeatedly to regulate pollution from CAFOs through permits, but appeals by the agriculture industry have succeeded in rolling back those requirements. The Clean Water Act specifically lists CAFOs as “point sources” that require discharge permits, but court decisions have held that only CAFOs with actual discharges require Clean Water Act permits. Most CAFOs claim not to discharge at all, so they do not get permits. That is true in Iowa where a very small portion of CAFOs have permits, but other states have taken varying approaches to permitting that gives them more oversight of facilities.

Clean Water Act Permit Coverage for CAFOs - Iowa vs. other states

Source: EPA National Summary, May 2023

Clean Water Permits for Large CAFOs in Iowa

Source: Iowa DNR AFO Database (August 2023)

Clean Water Act permits typically contain operating, monitoring, and reporting requirements to ensure CAFOs follow best management practices. For the thousands of CAFOs in Iowa without Clean Water Act permits, the only oversight is through manure management plans (MMPs) and nutrient management plans (NMPs). A district court recently overturned Iowa DNR’s approval of the NMP for Supreme Beef for being “illogical.” Other manure plans have had similar problems. Relying on MMPs and NMPs as the sole method to protect water quality has been hampered by DNR’s limited resources to review and enforce them.

What's Next

The denial of the petitions means that EPA will not take further action to regulate CAFOs in the short term, despite the petitions explaining in detail why properly managing manure – and keeping it out of the water – is critical to protect water quality.

In response to the petition denials, Food & Water Watch and Earthjustice noted the urgency of addressing this type of pollution and the legal authority under the Clean Water Act to do so.

Until government agencies and lawmakers have the political nerve to take action, Iowans and our downstream neighbors will continue to suffer from pervasive manure pollution in our waterways. 

  1. cafos
  2. clean water
  3. clean water act
  4. water quality

About The Author

Michael Schmidt joined the Council in 2019 and works across IEC's program areas. He most recently worked as a staff attorney for the Minnesota Pollution Control Agency, where he focused on clean water and mining issues through enforcement, permitting, and rulemaking actions. He previously wor ... read more