After Long Delay, Groups Sue EPA for Response on Factory Farm Water Pollution Rules

Food & Water Watch
October 11, 2022

The Environmental Protection Agency’s failure to respond to a legal petition urging the agency to strengthen clean water rules governing factory farms has prompted a broad coalition of public interest and environmental justice organizations to file a lawsuit in the Ninth Circuit Court of Appeals that aims to force EPA to finally issue a formal response.

More than five years ago, over 30 groups – led by Food & Water Watch – filed a rulemaking petition detailing how EPA’s regulation of concentrated animal feeding operations (CAFOs) under the Clean Water Act has failed to protect waterways and communities, and urging the EPA to strengthen its lax approach. The agency’s complete failure to respond, the groups say, violates the Administrative Procedure Act (APA), which requires agencies like EPA to respond to petitions “within a reasonable time.”

The suit, filed Friday, argues that the current delay is unreasonable on its face, and that EPA’s inaction is unlawfully prolonging dangerous pollution and public health threats from factory farms. Most livestock in the U.S. are raised in CAFOs, which can confine thousands, or even millions, of animals and their waste. The vast quantities of manure generated from CAFOs are typically disposed of, untreated, on cropland, where it can seep or run off to pollute waterways and drinking water sources.

The Clean Water Act defines CAFOs as “point sources” of pollution, which should require polluting CAFOs to follow discharge permits that restrict their pollution discharges into rivers and streams. But due to the EPA’s weak regulations, only a small fraction of CAFOs have the required permits. The permits that do exist are weak and inadequately protective of water quality. The agency’s failed approach has led to widespread factory farm pollution in waterways and communities across the country. The petition, filed in May 2017,  provided a roadmap for EPA to close loopholes that have enabled CAFOs to avoid regulation, and to make permits stronger and more effective.

EPA’s failure to respond to the Petition, and in turn, strengthen its CAFO regulations, is just one of many examples of the Agency shirking its duty to protect communities from CAFO water pollution unless compelled by legal action. For instance, it was only due to a lawsuit filed by Food & Water Watch that the Ninth Circuit recently halted EPA’s illegal failure to require CAFOs monitor their discharges like other polluting industries. With this new legal action, Petitioners hope to once again pressure the Agency to fulfill its Clean Water Act obligations for CAFOs.

“This petition provided EPA with a roadmap for how it must finally regulate factory farms as required under the Clean Water Act, and explained why action is critical. EPA’s refusal to even answer simply confirms that it will not hold this industry accountable without legal and public pressure. We will not let EPA continue to delay while factory farms pollute with impunity, endangering public health and fouling our rivers and streams across the country,” said Food & Water Watch Legal Director Tarah Heinzen.

“Factory farm water pollution has had an increasingly devastating impact on marginalized communities throughout the country, and especially in North Carolina. Thousands of massive hog and poultry operations—of which only 1.1 percent are permitted—have taken root in low-income communities and communities of color, where they pollute the drinking water, ruin public waterways, and degrade the health and quality of life for those that have no choice but to live nearby. Meanwhile, the NC Department of Environmental Quality expects the polluters to regulate themselves! This is an extreme environmental injustice, and EPA is needed to take action to correct it,” said North Carolina Environmental Justice Network Director of Organizing and Policy Rañia Masri.

“Iowa is in the midst of a water pollution crisis, thanks to thousands of unpermitted factory farms. EPA’s weak rules have completely let Iowa off the hook from even the most basic Clean Water Act regulation of these facilities. It’s no wonder Iowa has become a magnet for CAFO industry expansion,” said Iowa Citizens for Community Improvement member Julie Duhn.

“In Wisconsin, CAFOs have to have Clean Water Act permits, but that hasn’t stopped the 17 industrial dairy CAFOs in my rural county from poisoning our community’s drinking water and decimating the wildlife in our local streams. EPA must grant this petition and strengthen its rules so that rural communities no longer have to shoulder the burden of unchecked factory farm pollution and live with the stress of not having safe drinking water in their homes,” said family farmer and Kewaunee CARES and Food & Water Watch member Nancy Utesch.

Petitioners in the lawsuit include: Food & Water Watch, Center for Food Safety, Dakota Rural Action, Dodge County Concerned Citizens, the Environmental Integrity Project, Helping Others Maintain Environmental Standards, Institute for Agriculture and Trade Policy, Iowa Citizens for Community Improvement, Kewaunee CARES, Midwest Environmental Advocates, and North Carolina Environmental Justice Network.

The 33 original petitioners include six national public interest advocacy organizations, and twenty-seven state and community-based organizations based in Arizona, Arkansas, California, Illinois, Iowa, Maryland, Minnesota, Missouri, New Mexico, North Carolina, Oklahoma, Pennsylvania, South Dakota, Virginia, and Wisconsin. Collectively, Petitioners represent millions of members and supporters from across the country.

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