If you live near an Animal Feeding Operation (AFO) or a Concentrated Animal Feeding Operation (CAFO), you're probably familiar with all of the environmental impacts of this method of farming, or what is more commonly called "factory farming." Under newly proposed legislation, your ability to fight water pollution from those factory farms might soon become much more limited.
How Are CAFOs Regulated?
The EPA has specific definitions of AFOs and CAFOs that have to do with large numbers of animals being confined in small areas for feeding. Legal definitions of these operations became necessary when they were required to have permits for waste discharges under the National Pollutant Discharge Elimination System (NPDES) established through the Clean Water Act. The current rules for CAFOs that cover surface water discharges were finalized in 2011.
In 2008, the Government Accountability Office estimated that it "...depends on the type and number of animals raised, but large operations can produce more than 1.6 million tons of manure a year," adding (incredibly) that, "Some large farms that raise animals can generate more raw waste than the populations of some US cities produce annually." Some of the largest dairies in the country now have more than 15,000 cows. That's a lot of poop to manage!
Manure applied to fields in well-managed livestock farms can be a part of regenerative agriculture and can help to rebuild soil quality. Unfortunately, under current farming practices, such farms represent a small percentage of livestock production. Factory farming dominates the livestock landscape and the large quantities of manure produced from those farms is a big problem.
Only so much manure can be applied to fields before the soil becomes overloaded with nutrients like nitrogen and phosphorous. Beyond field application, management strategies include liquefying and spraying manure onto fields, trucking it off-site, or storing it in deep pits under buildings, in clay or concrete pits, in treatment lagoons or in holding ponds. Each of these management strategies has weaknesses and according to the Centers for Disease Control (CDC), pollutants, including nutrients, pathogens and heavy metals, inevitably find their way into local waterways, including both surface and groundwater.
Is CAFO Pollution Covered Under RCRA?
Unfortunately, regulation under the NPDES permitting system doesn't cover groundwater, which is a problem considering that about 43 million people in the US rely on private drinking water wells. A USGS study of 2,100 wells released in 2009 showed that, especially for those in agricultural regions, nitrates are a major contaminant of concern in private groundwater wells.
So, it was a big deal in 2015 when, in a first of its kind ruling, a judge in a Yakima, Washington case determined that manure can be regulated as a solid waste and, when over-applied, constitutes "a violation of the Resource Conservation and Recovery Act (RCRA), which was enacted by Congress in 1976 to protect people and the environment from solid and hazardous waste."
RCRA cases are difficult and expensive to bring because the burden is on the plaintiff to prove that the defendant is at fault and is causing a danger. RCRA has only been successfully applied to livestock waste once - in this case - where for nearly 15 years, the citizens of Yakima Valley, Washington asked the EPA and state agencies to protect their drinking water from five CAFOs. *In 2012, the EPA concluded that these CAFOs likely caused more than 60 percent of the nitrate pollution in the county's drinking water. Other options to mitigate the contamination were unsuccessful, so a group of neighbors, led by a cherry farmer, brought the case under RCRA.
RCRA excludes manure applied to fields as fertilizer but the judge ruled that "manure that leaks from lagoons or is over-applied to fields is considered 'discarded' as a solid waste," adding that "the manure pollution poses an 'imminent and substantial endangerment' to the environment and to people who drink the water." The ruling caused a collective shudder among CAFO farmers who labelled it a "'potential fiasco' for agriculture."
H.R. 848 Would Exempt Agricultural Pollution from RCRA
As a response, last February, Representative Dan Newhouse (R-Washington) introduced legislation (along with 43 co-sponsors) that would amend the RCRA law to exempt "manure from farms, agricultural and crop waste and fertilizer," from inclusion. The Farm Regulatory Certainty Act - H.R. 848 - would also "prevent environmental groups from suing farmers."
Newhouse contends that the judge's ruling misinterpreted RCRA and "heavy-handedly disregarded the standards US farmers have relied on for 70 years." According to Newhouse, "Continued judicial misinterpretation...could pose a very real threat to the vitality of the nation's agricultural community, which would lead to serious disruptions in the food supply."
Charlie Tebbutt, the attorney representing the groups that sued the dairies, sees it differently. "These same problems are occurring everywhere in the United States, it's just that no one was looking. It was don't look, don't find," he said. "Here now, we've looked, and we've found, and we know that there is a problem and the policy must change."
Animal agriculture has a long history in America, and provides a significant portion of the country's diet. However, every single one of us has a fundamental right to clean drinking water, and it is incumbent on all farmers and ranchers to be good stewards and good neighbors - to operate in a manner that doesn't impact anyone's water quality. Then, in the court of right and wrong, we all win.
*SOURCE: Public Justice Fact Sheet