Several environmental and citizen watch groups have filed suit against the EPA in the U.S. Court of Appeals for the 9th Circuit to force the Agency to strengthen regulations for concentrated animal feeding operations (CAFOs) to provide better water quality protection.

The lawsuit was filed after the EPA denied a 2017 petition that requested a change to EPA Clean Water Act (CWA) regulations for CAFOs.

In its initial petition, the groups requested that the EPA’S CAFO regulations ensure all discharging CAFOs obtain National Pollutant Discharge Elimination System (NPDES) permits, including having the EPA:

• Establish an evidentiary presumption that CAFOs with certain characteristics actually discharge.
• Revise its interpretation of the Agricultural Stormwater Exemption to give effect to Congress’s intent that no CAFO-related discharges be exempt from the act’s permitting requirements.
• Ensure permitting agencies co-permit integrators and other operators with producers.
• Revise the CAFO and production area definitions and designation authorities.

The petitioners also requested that the EPA strengthen NPDES permits to adequately protect water quality, including strengthening and clarifying the requirements applicable to all CAFOs, as well as revising the Large CAFO Effluent Guidelines.

“‘The overall petition was asking the Environmental Protection Agency to address some loopholes and fix the system overall, so these industrial agricultural operations would be better regulated and contribute less to water contamination across the United States,’” said Adam Voskuil, a staff attorney for Midwest Environmental Advocates, according to the Wisconsin State Farmer.

“Currently, federal law only requires those known to discharge waste to obtain permits, although states like Wisconsin have gone beyond federal requirements,” the Wisconsin State Farmer adds. “The groups argued that federal appeals court rulings in 2005 and 2011 undermined the agency’s efforts to require large farms to obtain permits, placing the burden on citizens and regulators to catch polluters.

“Groups also want the agency to revise its interpretation of an agricultural stormwater exemption. Any manure or waste runoff tied to rain or snow are currently exempt from national permit requirements. They say that makes it ‘virtually impossible’ to tell if a release stems from storm events or improper manure management.”

The EPA’s August 15, 2023, response to the group’s petition agrees to study “potential areas for improvement of the CWA NPDES regulatory program requirements for CAFOs.”

The response also states the “EPA will convene an Animal Agriculture and Water Quality (AAWQ) subcommittee under the existing Farm, Ranch, and Rural Communities Federal Advisory Committee to hear from farmers, community groups, researchers, state agencies, and others about the most effective and efficient ways to reduce pollutants generated from CAFOs.” The letter states that the committee will be formed and host six to nine public meetings over the next 12 to 18 months.

The EPA is the NPDES permitting authority for Idaho, Massachusetts, New Hampshire, New Mexico, the District of Columbia, tribal lands, and U.S. territories. Most states are authorized to issue NPDES permits, and many states have more stringent permitting requirements than the EPA’s federal requirements.

“The federal lawsuit comes as Venture Dairy Cooperative and the Wisconsin Dairy Alliance are challenging requirements that CAFOs obtain wastewater permits under Wisconsin’s program,” continues the Wisconsin State Farmer. “In May, the WMC Litigation Center filed a lawsuit in Calumet County Circuit Court on behalf of the farm advocacy groups.

“The groups argue the DNR (Wisconsin Department of Natural Resources) is unlawfully requiring the state’s 335 CAFOs to obtain permits. They’ve pointed to the 2005 and 2011 federal appeals court rulings. They argue those decisions found the [CWA] doesn’t allow the EPA to require CAFOs to obtain wastewater discharge permits until they actually release waste into waterways. They contend state statutes require the DNR to follow federal law in that area.”

Other farm and environmental groups have filed a motion to intervene in that lawsuit to protect the state’s water quality.

The groups that have filed the federal lawsuit against the EPA are Food & Water Watch, the Center for Biological Diversity, the Center for Food Safety, Dakota Rural Action, Dodge County Concerned Citizens, the Environmental Integrity Project, Helping Others Maintain Environmental Standards, the Institute for Agriculture and Trade Policy, Iowa Citizens for Community Improvement, Kewaunee Citizens Advocating Responsible Environmental Stewardship, the Land Stewardship Project, Midwest Environmental Advocates, and the North Carolina Environmental Justice Network.