Water Pollution from CAFOs: An Update

DSC_0971By Corey Kestenberg, GIELR Staff

On October 23, 2013, the U.S. District Court for the Northern District of West Virginia decided that concentrated animal feeding operations (CAFOs) in its jurisdiction are not required to obtain a permit pursuant to the Clean Water Act (CWA) when they discharge precipitation runoff laden with animal manure, litter, dander, and feathers into bodies of water.

In this case, Alt v. EPA, petitioner, the owner of a poultry CAFO, brought suit seeking declaratory judgment and other relief in response to receiving a violation notice from the EPA for failing to obtain a permit for discharging polluted water from the CAFO into Mudlick Run. The petitioner argued that the water discharge from the property was exempted from the permit requirement as agricultural stormwater discharge. Although CAFOs are included in the point source definition and would therefore require a discharge permit under the CWA, agricultural stormwater discharge is specifically exempted from the point source definition, and thus from the permit requirement.

At issue in Alt was which definition should be given to “agricultural stormwater discharge,” a phrase that had not been defined in the CWA. U.S. District Chief Judge Bailey looked to the plain meaning of all three words and decided that Alt’s discharge fit this exemption. He rejected the EPA’s attempt to limit the exemption to discharge from land application of farm products. He said that particles carried through vents and tracked outside of petitioner’s poultry houses, when mixed with precipitation and discharged into water bodies, counted under the exemption.

Although this is a nascent area of case law, this decision may foreshadow pro-industry policies that will develop in the near future. If other courts have the opportunity to rule as this West Virginia District Court did, then our bodies of water may be at risk.

The EPA is already aware of the risks that CAFOs pose to the bodies of water they border. From 2008-2010, the EPA made compliance and enforcement of proper CAFO waste disposal a priority. The EPA is well aware that waste from CAFOs that runs into water bodies or seeps into ground water can degrade the water and even pose a public health risk to those who drink water sourced from CAFO-contaminated places. Although some mechanisms of risk, such as algae blooms caused by high phosphorous levels from animal waste, are well established, much of the research on the impact of CAFO waste in water is still in progress, with outcomes that remain uncertain.