This week brought increased attention to the Clean Water Act (“the Act”), with a court decision on information collection and large animal feeding operations, which are regulated under the Act, as well as a Senate subcommittee hearing on the Act’s “waters of the U.S.” finalized rule, which went into effect at the end of August.
The Act prohibits the discharge of any pollutants, including dredged or fill material, into “navigable waters” unless the activity is done in compliance with an authorized permitting scheme. In an attempt to limit these pollutants, the Act authorizes two permitting programs: the National Pollutant Discharge Elimination System (NPDES) permitting program, which is particularly relevant, though unfortunately not well enforced, for concentrated animal feeding operations (CAFOs), and the Section 404 permitting program, which allows the discharge of dredge and fill material into waters, if done as part of certain permitted activities. EPA and the Army Corps of Engineers (the Corps) collaboratively carry out the Section 404 permitting program.
While this week’s Senate hearing addressed the revised rule that only recently went into effect, the court decision on CAFO reporting returns our attention to a proposed rule that the EPA withdrew over three years ago.
Court Backs EPA Decision on CAFO Reporting
On Wednesday, September 30, a federal court backed the EPA’s decision to withdraw a rule that would have required concentrated animal feeding operations (CAFOs) to report the discharge of manure and other pollutants to the EPA. This basic information is necessary for the EPA to ensure that CAFOs properly handle their waste and avoid water pollution.
When Congress enacted the Clean Water Act in 1972, it included CAFOs as point sources of pollution subject to EPA regulation. CAFO waste contains high nutrient levels, as well as heavy metals, antibiotics, pathogens, and growth hormones. However, the U.S. Government Accountability Office (GAO) found that no federal agency, including the EPA, has consistent, reliable data on CAFOs, thus presenting an inherent challenge for efforts to regulate and minimize pollution from CAFO waste.
Despite such a clear need for increased data collection, the EPA withdrew the reporting rule in 2012 and concluded that it could simply rely on information on CAFOs from the states and other sources. Several environmental groups filed a lawsuit against the EPA after it withdrew the rule, and they argued that the agency was obligated to issue the measure.
In its opinion this week, the U.S. District Court for the District of Columbia found that the EPA’s decision to withdraw the rule and instead collect information on CAFOs from publicly available sources did not violate the Administrative Procedure Act. The court said that existing sources yield “much” of the information that the EPA needs.
The proposed reporting rules would have provided the benefit of collecting data from unpermitted CAFOs, which present an even more difficult challenge when tracking and monitoring water pollution with existing data sources.
Many CAFOs not only operate “under the radar” without sufficient data collection in place, but they may also receive cost share assistance from the taxpayer through the U.S. Department of Agriculture (USDA)’s Natural Resource Conservation Service (NRCS)’s Environmental Quality Incentives Program (EQIP) for animal waste storage and treatment facilities.
The National Sustainable Agriculture Coalition (NSAC) continues to advocate that EPA and USDA both have critical roles to play in limiting CAFO pollution, but current policies in both agencies fall far short of the mark.
Senate Hearing Ignores Clean Water Act Improvements
While Wednesday’s ruling further complicates pollutant regulation under the Clean Water Act, the newly revised definition of “waters of the U.S.” aims to clarify previous confusion regarding which waterways are considered jurisdictional, and which activities are consequently subject to EPA and the Corps’ permitting requirements.
Many members of Congress, as well as some agricultural groups, have voiced strong opposition to the revised definition throughout the rulemaking process, and although the new rule is now finalized and in effect, this week’s Senate Environment and Public Works subcommittee hearing brought much of the same vocal opposition that we have heard for the past few years.
As of late August, the new rules are in effect in the 37 states, while 13 states were granted a temporary injunction by a federal district court in North Dakota. The Clean Water Act still applies in the 13 injunction states, but for now the older, murkier definition of “waters of the U.S” applies for permitting in these states.
On Wednesday, September 30, Assistant Secretary of the Army, Jo-Ellen Darcy, defended her decision to approve the rule at a Fisheries, Water, and Wildlife Subcommittee hearing, entitled “Oversight of the Army Corps of Engineers’ Participation in the Development of the New Regulatory Definition of ‘Waters of the United States.'” The bulk of the hearing not only failed to acknowledge the clarity the that the new rule provides, but it also ignored the process through which the Agencies listened to the the concerns of the public, especially the agricultural community, and responded with significant improvements to the rule.
In her opening statement, Assistant Secretary Darcy referred to these improvements, as she explained that “the final rule reflects many changes as a result of listening to the public and carefully considering the interests of all Americans, including America’s farmers and ranchers.”
Senator Whitehouse (D-RI), ranking member of the Fisheries, Water, and Wildlife Subcommittee pointed to the absurdity of his colleagues’ continued attacks on the rule, asserting that the Clean Water Act and the Waters of the U.S. rule have been absolutely essential.
“And while there can be argument over the scope and the details of the rule, that hasn’t been what has been the issue. There’s been just a full on, party-wide, absolute attack on this rule, and I think it’s been very regrettable..So if my colleagues want to address technical improvements we think we should make, of course, I’m always open to that, but the conversation around this has been largely preposterous…You hear this extreme rhetoric about a rule whose purpose is to keep our waters clean.”
NSAC hopes that conversations around the Clean Water Act will turn to implementation of the finalized waters of the U.S. rule. Legislators should refocus their attention on opportunities for the agricultural community to engage and benefit from increased clarity in the rule and in the water.