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Permitting CAFOS: Challenges the CAFO Permitting Scheme Will Face in Light of Climate Change

Permitting CAFOS: Challenges the CAFO Permitting Scheme Will Face in Light of Climate Change

Amy Stevens

What impact does our food have on water? As the United States’ food and agriculture systems progress, farmers are shifting towards factory farming.[1] These factory farms, officially labeled Concentrated Animal Feeding Operations (CAFOs), often pollute water with nutrients such as nitrogen, phosphorus, pathogens, and sediments.[2] Nutrient pollution is harmful to local ecosystems.[3] Nutrients are necessary for plant and animal growth, but in high concentrations, they can have the opposite effect.[4] Nitrogen and phosphorus are the most notorious nutrients, and they are found in animal waste.[5] But waste is not always manure. Poultry CAFO waste is called poultry litter, and it is a mix of manure, bedding, feathers, and waste feed.[6] Excess nutrient levels in streams can cause algae blooms, reducing the dissolved oxygen in the water (which fish need to survive), leading to less wildlife and more dead zones.[7] Nitrogen can also cause human health problems if it gets into drinking water, including several types of cancer[8] and blue baby syndrome (a deadly condition where blood cannot effectively transport oxygen through the body causing blue around the hands, mouth, and feet).[9]

Unfortunately, with the increased intensity of storms and rainfall produced by climate change, water pollution attributable to CAFOs will likely increase because rain causes runoff and can overwhelm a CAFO’s waste storage.[10] The Clean Water Act (CWA) and current CAFO permitting regulations under the CWA are simply not equipped to handle increased rainfall caused by climate change.[11] Updating the permitting scheme for CAFOs under the CWA will help prevent pollution to ensure the Nation’s waters are swimmable and fishable.

 

This Note will provide background information on weather events attributable to climate change such as increased rainfall, increased heavy rainfall events, and increased intense storms such as hurricanes. This Note also discusses federal and state CAFO regulations and suggests changes to the regulations to mitigate the effects of climate change. Part I will discuss climate change and the problems it presents in regards to rainfall and agriculture. Part II will discuss the definition of a CAFO and the water pollution problems associated with CAFOs. Part III will give an overview of CAFO permitting systems, looking at the federal requirements and some EPA authorized state permitting systems. This Part will also propose changes to the CAFO rule designed to eliminate risky behavior that could lead to a discharge such as building a CAFO in a flood plain,[12] and it will highlight problems with the agricultural stormwater exception and its role in the permit process. Finally, Part IV will discuss possible solutions, including changes that could be made to regulations to account for climate change.

 

[1] See, e.g., Industrial Agriculture, Md. Clean Agric. Coalition (Apr. 2017), http://www.marylandcleanagriculture.org/our-issues/cafos/ (describing the increase of poultry CAFOs in Maryland).

[2] Animal Feeding Operations (AFOs), EPA, https://www.epa.gov/npdes/animal-feeding-operations-afos (last visited Sept. 27, 2017).

[3] The Problem, EPA, https://www.epa.gov/nutrientpollution/problem (last visited Dec. 15, 2017).

[4] Id.

[5] Animal Feeding Operations (AFOs), supra note 2.

[6] Casey W. Ritz, Maximizing Poultry Manure Use Through Nutrient Management Planning, U. Ga. Extension, http://extension.uga.edu/publications/detail.html?number=B1245 (last updated Oct. 3, 2016).

[7] Nicholas M. White, Industry-Based Solutions to Industry-Specific Pollution: Finding Sustainable Solutions to Pollution from Livestock Waste, 15 Colo. J. Int’l Envt’l L. & Pol’y 153, 153 (2004).

[8] Rona Kobell, PA Farm Pollution Affecting Drinking Water, Bay J. (Feb. 1, 2017), http://www.bayjournal.com/article/pa_farm_pollution_affecting_drinking_water.

[9] Water-Related Diseases, World Health Org., http://www.who.int/water_sanitation_health/diseases-risks/diseases/methaemoglob/en/ (last visited Dec. 2, 2017).

[10] See, e.g., Georgia Gustin, Factory Farms Get Bigger, Pollution Grows, but Regulators Don’t Even Know Where They Are, Inside Climate News (Oct. 21, 2016), https://insideclimatenews.org/news/19102016/cafo-epa-regulations-factory-farms-get-bigger-pollution-grows-environmental-impact-methane (discussing current CAFO pollution and how little the EPA has done to regulate it); Kirk Ross & Darryl Fears, Flooded North Carolina Farms Are Likely Littered with Drowned Livestock, Wash. Post (Oct. 12, 2016), https://www.washingtonpost.com/news/animalia/wp/2016/10/11/flooded-north-carolina-farms-are-likely-littered-with-drowned-livestock/?utm_term=.706ce64d4f6e (discussing the pollution associated with flooding from Hurricane Matthew in North Carolina).

[11] See generally 33 U.S.C. §§ 12511388 (2012) (providing no protection against increased rainfall from climate change); see also 40 C.F.R. § 122.23 (2012) (failing to account for increasing rainfall and runoff associated with climate change).

[12] See generally 40 C.F.R. §§ 122.1–122.64 (2017) (containing no language preventing an operator from building a CAFO in a floodplain); Kent County, Md., Land Use Ordinance art. 5 (2017), https://www.kentcounty.com/images/pdf/planning/newzone/Part1_A25.pdf (noting that local ordinances can prohibit operators from building poultry houses, other animal houses, and any waste management structure or facility in the 100-year flood plain).

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