Irene Schwieger

Concentrated animal feeding operations (CAFOs) represent a growing trend in global agriculture.[1] Despite their increasing prevalence, regulating CAFOs’ environmental impacts remains problematic: not all industrial animal farms are required to obtain waste discharge permits, and data on CAFO emissions are often limited or unavailable. Additionally, state anti-whistleblower (or “ag-gag”) laws and a general presumption against discharge contribute to preserving the animal agriculture industry’s status quo against heightened environmental regulations. This situation is alarming given the environmental and public health risks posed by CAFO discharges. These include eutrophication of U.S. waterways,[2] arsenic and other heavy metal contamination,[3] antibiotic resistance,[4] and a number of waterborne diseases originating from microbes in livestock and manure.[5]

CAFOs require more comprehensive regulations to reduce negative impacts, particularly in regards to waste disposal practices. Under the current regulatory system, most CAFOs store waste and animal by-products in large underground pits or lagoons.[6] Spills and leakage from these lagoons are commonplace; in fact, several states have enacted laws authorizing legal leakage rates.[7] Leakage rates often exceed legal limits, yet CAFOs are generally not held accountable due to lack of supervision or inspections.[8] Furthermore, a substantial part of CAFO discharges are not regulated under the Clean Water Act (CWA) because they reach groundwater prior to surface waters. This is contrary to the CWA’s stated purpose of “restor[ing] and maintain[ing] the chemical, physical, and biological integrity of the Nation’s waters”[9] since a vast majority of groundwater is tributary.[10] Therefore, CAFO discharges into groundwater inevitably contaminate the nation’s surface waters.

Based on reports from all fifty states, the Environmental Protection Agency (EPA) concluded that “current farming practices are responsible for 70% of the pollution in the nation’s rivers and streams,” [11] a feat largely due to poor manure disposal practices. This Note analyzes the applicability of the Clean Water Act to groundwater in the context of CAFO discharges. Part I provides an overview of CAFOs’ history, environmental regulations, and public environmental health concerns. Part II discusses current federal regulations pertaining to groundwater. Part III then analyzes the CWA and its applicability to the regulation of groundwater pollution from CAFOs based on legislative history, case law, and by analogy with the area of water appropriation. Ultimately, this Note concludes that CAFO discharges into groundwater should be federally regulated under section 402 of the CWA.

Questions and inquiries regarding this Note may be forwarded to the author at LawReview@vermontlaw.edu.

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[1] David Osterberg & David Wallinga, Addressing Externalities from Swine Production to Reduce Public Health and Environmental Impacts, 94 Am. J. Pub. Health 1703, 1704 (2004), available at http://www.ncbi.nlm.nih.gov/pmc/articles/PMC1448520/pdf/0941703.pdf.

[2] See, e.g., National Science and Technology Council Committee on Environmental and Natural Resources, An Assessment of Coastal Hypoxia and Eutrophication in U.S. Waters 20 (2003), available at http://oceanservice.noaa.gov/outreach/pdfs/coastalhypoxia.pdf.

[3] Osterberg & Wallinga, supra note 1, at 1704.

[4] See generally Jonathan Anomaly, What’s Wrong With Factory Farming? Pub. Health Ethics (Feb. 7, 2014), http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2392453.

[5] Osterberg & Wallinga, supra note 1, at 1704.

[6] Id.

[7] Id.

[8] Emily A. Kolbe, “Won’t You Be My Neighbor?” Living with Concentrated Animal Feeding Operations, 99 Iowa L. Rev. 416, 433–34 (2013), available at http://www.uiowa.edu/~ilr/issues/ILR_99-1_Kolbe.pdf.

[9] 33 U.S.C. § 1251 (2006).

[10] Mary C. Wood, Regulating Discharges into Groundwater: The Crucial Link in Pollution Control Under the Clean Water Act, 12 Harv. Envtl. L. Rev. 569, 750 (1988), available at http://nationalaglawcenter.org/publication/wood-regulating-discharges-into-groundwater-the-crucial-link-in-pollution-control-under-the-clean-water-act-12-harvard-environmental-l-rev-569-626-1988/wppa_open/.

[11] Kolbe, supra note 8, at 434.