Water worries

The EPA has identified more than 21,000 large CAFOs across the country but just 6,266 of those operate with wastewater discharge permits under the Clean Water Act designed to control and restrict pollutants discharged into waterways, according to EPA figures.

“EPA is weak on regulations on CAFOs,” said Emily Miller, a Food & Water Watch attorney. “Only a fraction have permits and the permits that do exist are just simply ineffective.”

An EPA spokesman said the agency would not comment on either petition. The American Farm Bureau Federation declined to be interviewed for this article.

The National Milk Producers Federation, though, issued this statement in response to the environmentalists’ petitions. “Regulation of CAFOs require a responsible approach, which sometimes isn’t the case among environmental activists who seek to use regulations to reduce the availability of animal protein products for consumers,” said Jamie Jonker, the group’ chief science officer.”

The restiveness about CAFO operations and expansion in the American countryside is due to the same kinds of disruptions occurring in states like Wisconsin, where 340 large livestock operations have been constructed, most of them big milk and hog production facilities. They collectively house hundreds of thousands of animals.

Wisconsin CAFOS pour billions of gallons of untreated liquified manure every year, and millions of tons of solid manure on hundreds of thousands of farm acres. A study for the Wisconsin Legislature made public in October found that the number of private wells contaminated with nitrates or E.coli, the intestinal bacteria, was expanding steadily and identified the source as agricultural discharges.

CAFOs, though, are the only industrial polluting facilities not required to treat their wastes. The federal waiver for treating CAFO wastes dramatically reduces pollution control and operating costs. It is a primary reason the American livestock sector has rapidly changed from numerous small farms that manage livestock on outdoor pastures and barnyards to many fewer industrial-scale operations where animals spend their entire lives indoors.

And because CAFOs operate on efficiencies of scale, they have played an outsize role in keeping commodity prices low and contributed to the closure of small farms in America.

As CAFOs gained influence, for example, Wisconsin in November counted 6,172 dairy farms, down from 11,260 a decade earlier, according to state figures. A study by the American Farm Bureau Federation found that from 2011 to 2020 Wisconsin led the nation in farm bankruptcies.

Though the Biden administration dispatched the EPA administrator and several aides to Cleveland earlier this year to celebrate the 50-year anniversary of the Clean Water Act, the 1972 statute has not come close to achieving its “fishable and swimmable” goal for American surface waters. The problem is unregulated nutrient discharges from agriculture. In 2016, the EPA identified phosphorus and nitrogen discharges from U.S. farmland as “the single greatest challenge to our nation’s water quality.”

Harmful algal blooms caused by phosphorus discharges from CAFOs now contaminate many of America’s iconic waters, among them Chesapeake Bay, Lake Okeechobee, Lake Champlain, California’s Clear Lake, and Lake Erie. “Somewhere between 88 percent and 94 percent of the problem is caused by these CAFOs, these megafarms and their nutrient nonpoint source runoff. Everyone knows it,” said Wade Kapszukiewicz, the mayor of Toledo, Ohio, which was forced in 2014 to shut down its drinking water plant for three days because of bloom-generated toxins. Half a million residents lost their drinking water supply.

CAFO nutrient discharge is worse in the Corn Belt states: the Dakotas, Minnesota, Wisconsin, Iowa, Illinois, Missouri, Nebraska and Kansas. The EPA counted 9,332 concentrated livestock and poultry operations across the Corn Belt in 2021. It is not known how much manure they all produce each year, but it’s prodigious. For comparison the 291 CAFOs in Michigan generate 4 billion gallons of untreated raw liquid manure annually, and millions of tons of solid manure, according to the state environment department.

In Iowa, where almost 4,000 CAFOs operate, nearly every mile of streams and acre of surface water is impaired by nutrients or E.coli. Just 167 Iowa CAFOs have wastewater discharge permits, according to the E.P.A.

The Biden Administration and CAFO opponents know full well that changing the regulatory rules of the CAFO game will be a fierce struggle. Environmentalists, small farm advocates, and E.P.A. administrators under previous administrations, Democratic and Republican, have tried to cross this same ground before and been turned back in federal courts by politically powerful farm groups led by the American Farm Bureau Federation and its allies in the various state and national dairy, pork, poultry, and beef associations.

In 2003, in response to a lawsuit brought by Natural Resources Defense Council and Public Citizen, the EPA issued a new rule that obligated CAFOs to apply for discharge permit unless they could demonstrate that they had “no potential to discharge” damaging nutrients. That rule was challenged by livestock operators, who in 2005 convinced the Second Circuit Court of Appeals to strike it down.

The E.P.A. tried again with a new rule in 2008 that limited the permitting obligation to CAFOs that “propose to discharge” wastes. But in 2011, in a case brought by the National Pork Producers Council and other farm groups, the Fifth Circuit Court of Appeals struck that rule down, too. In both cases plaintiffs argued the law didn’t give the agency authority to regulate “potential” or “proposed” sources of pollution.

With their petitions and grassroots campaigns, activist legal and non-profit groups are pressing E.P.A. to try again. They assert that every CAFO operating in the United States is a source of “actual” wastewater discharges that require much more effective regulation. “The E.P.A. under its current leadership acknowledges that what we’ve asked for needs to happen,” said Amy van Saun, a senior attorney for the Center for Food Safety, which is a party to the 2017 petition. “I don’t think they have any legal way to say no.”

The Alicia Patterson Foundation and the Fund For Investigative Journalism awarded investigative reporting fellowships to support this project. Along with The New Lede, co-publishers include: The Guardian, Great Lakes Now, Michigan Radio, Investigate Midwest, and MinnPost.

A version of this article was published by The New Lede on November 17, 2022.