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“Victory” Over EPA – Not So Fast

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EPA won a legal decision in Washington, D.C., on Sept. 29, which has been advertised as a victory for U.S. Farmers and Ranchers trying to protect private, personal, and financial records regarding their Concentrated Animal Feeding Operations. I have some qualms about the case after reading the court decision.

Five non-profit organizations, including Iowa Citizens for Community Improvement and Humane Society of the United States, were among the non-profits who sued EPA for withdrawing a proposed rule that would require CAFO’s to provide information to EPA in order to enhance EPA’s ability to regulate CAFOs’ alleged discharges into waters of the United States regulated by the Clean Water Act.

EPA says that USDA is a leading source of agricultural data, but that USDA refuses to provide details about individual CAFOs and each CAFO’s facility-specific data.
The non-profits accused EPA of withdrawing the proposed CAFO data rule as being a violation of the law. The proposed EPA CAFO Data Rule was prompted by a May 2010 settlement agreement that EPA entered into where EPA promised environmental groups two proposed rules to obtain operational information from CAFOs. The non-profits and EPA agreed to obtain, and apparently make public, contact information, location of a CAFOs production area, CWA permit status, the number and type of animals confined, and the number of acres available for land application manure.

EPA’s proposed rule requesting this information was withdrawn by EPA in July 2012 and the lawsuit followed.

The court denied the nonprofits request for legal relief. The court and background information accused CAFOs of collectively producing 60% of all manure generated by farms which confine animals. The court accepted the plaintiffs’ allegation that animal agriculture in the U.S. generates 300 million tons of manure each year, and “the vast majority of this waste eventually reaches the nations waterways.” (I suspect CAFO owners would not agree with this assertion.)

The background information does not include information, for example, that we Americans generate 254 million tons of trash and that does not include human manure and urine nor the hazardous waste generated by our production of products in this country. The court goes on and cites the plaintiff’s assertion that CAFOs can cause “harmful aquatic plant growths, algae blooms, contribute to dead zones, and often release toxins that are harmful to human life.”

After identifying these horrible situations created by animal manure, the court explains why EPA was allowed to withdraw its CAFO data rule. EPA may have won the case, but animal agriculture will still contend with EPA using an “existing information approach.”

EPA claims it has a better way of obtaining data from CAFOs in the country. None of the news articles I read about in this case identify what EPA is planning on doing in the future in obtaining data regarding CAFOs. Here’s a preview from the court opinion.

EPA says that USDA is a leading source of agricultural data, but that USDA refuses to provide details about individual CAFOs and each CAFO’s facility-specific data.

EPA says it can obtain state, CWA, and NPDES permitting data. EPA indicates not all states have data, but it will be going to states to get each state’s CAFO data that is “complete or readily available.”

EPA says it will use information from State Registration and Licensing Programs. Many state agriculture departments have registration or licensing programs that collect information on livestock farms separate from environmental permitting.

EPA says it will use satellite imagery and aerial photographs to locate and map CAFOs throughout the countryside. It will then use this imagery for EPA inspectors to undertake on-the-ground efforts to confirm the site specific information.

EPA notes that it will use and obtain reporting requirements from other state programs such as obtaining air emissions data from CAFOs.

Finally, EPA says it will use all other sources of data such as information from non-governmental entities, conservation programs, and extension agents.

As you can see, EPA may appear to have successfully withdrawn its regulation regarding the obtaining of information from CAFOs, but it clearly is not abandoning its efforts to use a variety of data sources to determine where CAFOs are located and will use this information to determine if the CAFOs are polluting “waterbodies”.

The initial reaction of EPA’s court win was that it was positive for farmers and ranchers. CAFO operators better read the fine print in the court opinion. EPA has just figured out a better way of obtaining the information on CAFOs.

(This article first ran in Farm Futures on October 20, 2015)
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