Manure Rule Exposed
Waterkeeper Alliance v. EPA:
Court Throws Out EPA’s Self-Regulation Rule for Factory Farms

A bit of background:
As we reported in our Summer 2004 issue, factory farms produce tremendous amounts of liquid manure and wastewater used to flush out the crowded barns. This water is stored in pits, lagoons, or large tanks and then disposed of by applying it to farm fields or pastures. Ostensibly, this wastewater is used as fertilizer, but many factory farms scam the system, applying far more waste than can effectively be used by the crops they grow.

Waterkeeper Alliance scored a major legal victory this February when the US Court of Appeals for the Second Circuit ruled that portions of EPA’s Clean Water Act regulations for factory farms were illegal. Waterkeeper Alliance filed the lawsuit challenging the factory farm regulations in March 2003 with partners NRDC and Sierra Club.

EPA’s February 2003 regulations strongly favored the interests of the industrial meat and dairy producers over public health. EPA’s rule followed a path it has set out for other industries under the Bush administration, allowing factory farm operators to “self-regulate” by writing their own nutrient management plans and keeping them secret from the public and government agencies. These plans create the only limitations on the amount of waste that factory farm operators can dispose of without violating the Clean Water Act, so the regulations effectively gave industry the power to decide if they’ve broken the law or not.

The Second Circuit agreed with Waterkeeper on several important issues. The court ruled that the regulations set up an illegal “self permitting” scheme that violated the explicit requirements of the Clean Water Act. As a result, the court directed EPA to revise the regulations. EPA must now require factory farm operators to develop nutrient management plans that are approved by state agencies, open to the public for review and comment, and incorporated into the terms of a factory farm’s Clean Water Act permit. The court’s decision significantly strengthens industry and state government accountability. It means citizens will have the ability to comment on an individual factory farm’s waste control plan before it is issued a permit – no more secret permitting – and ensures that citizens have the information they need to hold factory farms responsible for complying with the Clean Water Act.

In addition, the court ruled that EPA must make sure that its regulations will directly reduce pathogen flows into surface and groundwater from factory farms. Pathogens, such as E. coli and cryptosporidium, are dangerous, disease-causing microorganisms that are concentrated in animal manure. EPA had argued that its regulations offered sufficient protection against this threat to human health because they “incidentally” reduced pathogens by 46%. The court disagreed and reminded the agency that the Clean Water Act requires it to select the best pollutant control technology for reducing pathogens. Incidental controls simply are not enough.

This victory is a tremendous step forward in our efforts to counter the environmental and health impacts caused by factory farms. We are pleased that the court has reaffirmed the central role of informed, active citizens in protecting our nation’s waters. It is notable that the court has insisted that factory farms are a significant threat to water quality, and that these factories and public officials need to take steps to reduce that risk.