Global Policy Forum

By J.R. Pegg

Environmentalists have mounted a legal challenge to the Bush administration's new rule to limit water pollution from the nation's largest livestock operations. The administration's rule violates the Clean Water Act, the plaintiffs contend, and gives the livestock industry free reign to discharge animal waste into the nation's waters without fear of penalty or accountability. The rule "wholly fails to protect water quality," said Barclay Rogers, Sierra Club associate attorney.

The lawsuit was filed Friday by the Sierra Club, the Natural Resources Defense Council (NRDC) and the Waterkeeper Alliance in San Francisco's Ninth Circuit Court of Appeals. "The Bush administration missed a real opportunity to protect public health," Rogers said. "This rule is a step backward." Prior to the Bush administration's rule, Rogers explained, these large factory farms, known as concentrated animal feeding operations (CAFOs), were not permitted to discharge any animal waste pollution.

But under the administration's rule they are "now expressly permitted to discharge waste into the environment," Rogers said, and can do so based on permits that they are allowed to write themselves, without any government or public oversight. "Polluters can't be trusted to write their own permits," said NRDC attorney Melanie Shepherdson. "It is like asking high school kids to write their own tests. They will make it too easy to comply and they will not protect public health."

Few would disagree that large scale factory farms, which produce some 500 million tons of manure a year, present risks to public health and the environment. CAFOs have emerged as the dominant force in the modern production of agricultural livestock as the size of livestock operations has grown over the past two decades. Some of the largest facilities have capacities exceeding one million animals.

These large scale operations store waste onsite, some of which they apply on farmland. This liquid waste often runs off into surface water, killing fish, spreading disease, and contaminating drinking water supplies. Waste can leak onto the land and into groundwater and drinking water supplies from the massive waste storage units that often reside on the farms. The new rule, announced in December 2002, replaced a 25 year old rule developed after Congress identified CAFOs as point sources of water pollution that should be regulated under the Clean Water Act's water pollution permitting program.

It applies to about 15,500 livestock operations across the country. Large CAFOs are defined in the rule as operations raising more than 1,000 cattle, 700 dairy cows, 2,500 swine, 10,000 sheep, 125,000 chickens, 82,000 laying hens, or 55,000 turkeys in confinement. The EPA removed initiatives many environmentalists favored from the final rule that were put in by President Bill Clinton's administration. Under President George W. Bush, EPA officials said the agency opted to balance environmental objectives with measures aimed at protecting the profitability of the livestock industry.

When the rule was released, EPA Administrator Christie Whitman called it an "historic step forward" in the effort to make nation's waters cleaner and purer and said it would reduce the growing problem of animal waste generated by CAFOs. But environmentalists are convinced the rule will do nothing of the sort. They believe it shields factory farms from liability for damage caused by animal waste pollution, bars the public from weighing in on how animal waste is disposed, and exempts contaminated runoff from Clean Water Act standards.

Instead of tighter pollution controls, all the rule means to the industry is "more paperwork," said Ken Midkiff, director of Sierra Club's Factory Farm Campaign. The Bush administration centered the rule on the requirement that each operator have a nutrient management plan, which outlines how much animal waste will be sprayed on fields.

Environmentalists contend this is a license to pollute because the operator is allowed to write the pollution plan and it is not reviewed by federal or state officials nor available to the public. In effect, the groups say, it shields the operator from any liability for discharge. In addition, the rule does not require the operators to monitor groundwater or prevent animal waste from leaking into groundwater and contaminating drinking water.

If runoff does contaminate groundwater or drinking water, it is doubtful the factory farm operator or corporation behind the operation could be held liable because the rule exempts contaminated runoff from the Clean Water Act's standards by calling it "agricultural storm water." This exemption was intended for traditional, small farms, Midkiff explained, to protect them from liability of runoff caused by a heavy downpour.

"In no way is a CAFO a traditional agricultural operation," he said. "This exemption allows large companies to dump raw sewage into streams and waterways." Industry groups have fought most attempts at tighter standards, arguing that the costs of increased regulatory oversight would jeopardize the low prices Americans are now accustomed to paying for eggs, chicken, beef and swine.

When the Bush administration released its rule, the Farm Bureau, an agricultural industry trade group, said the restrictions were "workable" but went beyond the reach of the federal Clean Water Act. Critics contend that the Bush administration's rule does not aid small farmers, but large multinational corporations that already benefit from sizeable government subsidies. It is environmental protection and public health, not the profitability of industry, that should be paramount in government regulation, Shepherdson said. "EPA's mission is to protect the environment not the industry's bottom line."

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