In 2003, EPA proposed a major revision to its CAFO regulations.

Among other provisions, the rule required “all CAFO owners or operators to seek coverage under an NPDES (National Pollution Discharge Elimination System) permit,” unless they affirmatively demonstrate that they have “no potential to discharge.”

The U.S. Court of Appeals for the Second Circuit vacated that aspect of the 2003 rule, holding it unlawfully “imposes obligations on all CAFOs regardless of whether or not they have, in fact, added any pollutants to the navigable waters, i.e., discharged any pollutants.”

In 2008, EPA revised its regulations to try to require a permit for any CAFO with a “potential to discharge” and the revised rule called for a “case-by-case evaluation by the CAFO owner or operator as to whether the CAFO discharges or proposes to discharge from its production area or land application area.”

EPA’s requirement that discharging CAFOs or those that propose to discharge obtain a CAFO permit, was vacated in a challenge to the 2008 rule.

“It is difficult to distinguish between the petition’s request that EPA establish a rebuttable presumption that CAFOs with certain characteristics actually discharge — based on factors such as proximity to jurisdictional waters, climatic conditions, whether precipitation exceeds evaporation, production area drainage, and others — and the approach EPA used in the 2008 rule,” EPA said in the letter to Food and Water Watch this week.

Food and Water Watch said in a news release on Tuesday the Biden EPA missed an opportunity to tighten CAFO regulations.

“Factory farms pose a significant and mounting threat to clean water, largely because EPA’s weak rules have left most of the industry entirely unregulated,” Food and Water Watch Legal Director Tarah Heinzen said in a statement.

“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.”

In the letter to Food and Water Watch, the EPA said it was trying to balance the needs of CAFO operators while protecting water through regulation.

“EPA shares your commitment to fulfilling the goal of the CWA, to restore and maintain the integrity of the nation’s waters, in this case by addressing discharges from CAFOs,” the letter said.

“EPA also shares your concern that CAFOs can be a significant source of pollutants into waters of the United States. The agency recognizes that there may be opportunities to do more to address these pollutants. Indeed, many CAFO owners and operators, as well as federal and state agency staff, have experienced challenges effectively implementing and assuring compliance with the current CWA CAFO regulatory requirements.”

The agency said it expects to issue a request for subcommittee nominations sometime this fall and will appoint 10 to 20 members.

“After conducting the ELG detailed study and engaging with the AAWQ subcommittee, and reviewing their conclusions and recommendations, EPA will consider whether to revise its regulations,” the agency said in the letter.

“Specifically, EPA will assess whether it can address water quality concerns related to CAFOs through improvements to implementation, enforcement and other non-regulatory initiatives, or whether regulatory revisions are appropriate. The 2017 petition requests that EPA establish a presumption that CAFOs that apply manure to land as fertilizer actually discharge.”

Read more on DTN:

“CAFOs May Face Tougher Water Standards,” https://www.dtnpf.com/…

“Enviros Petition EPA on CAFO Regulation,” https://www.dtnpf.com/…

Todd Neeley can be reached at todd.neeley@dtn.com

Follow him on Twitter @DTNeeley

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