New Rule: Clean Water Permits Voluntary for Factory Farms

WASHINGTON, DC, November 3, 2008 (ENS) - The Bush administration finalized a rule Friday that allows more than 15,000 factory farms across the country to avoid certain requirements of the Clean Water Act if they claim they do not discharge animal wastes into lakes, rivers and streams.

Federal officials said the rule will help protect water quality and ensure safe disposal of manure, but environmentalists contend it does neither and lets some of the nation's largest polluters police themselves.

"The rule makes it much harder for the long-suffering neighbors of factory farms to challenge operations that pollute their rivers and streams by holding them accountable under the Clean Water Act."

The rule affects concentrated animal feeding operations, CAFOs, which annually produce some 500 million tons of animal waste from cattle, pigs and poultry.

CAFOs store waste in massive open-air lagoons or dispose of it on land.

Spills and runoff of the waste, laden with the nutrients nitrogen and phosphorous, can contaminate drinking water supplies, kill fish and spread disease.

The regulation affects compliance with the Clean Water Act's National Pollutant Discharge Elimination System, NPDES, permitting requirements.

It calls on CAFOs that discharge or plan to discharge wastes into waterways to apply for an NPDES permit and to complete a nutrient management plan as part of their application.

Those who do not believe they need a permit will not need to apply for one.

The public will be allowed to review permit applications and nutrient management plans, according to Ben Grumbles, assistant U.S. Environmental Protection Agency administrator for water.

Grumbles said the new rule "sets a strong national standard for pollution prevention and environmental protection" while ensuring the industry remains economically viable.

The EPA estimates that the new rule will prevent 56 million pounds of phosphorus, 110 million pounds of nitrogen, and two billion pounds of sediment from entering streams, lakes, and other waters annually.

The agency said it is also providing an opportunity for CAFO operators who do not believe they need an NPDES permit "to show their commitment to pollution prevention by obtaining certification as zero dischargers."

But what that exactly means remains unclear.

EPA, for example, did not explain whether enforcement actions would be taken against operators who decided they don't need permits, but fail to achieve such certification.

The rule was released late Friday and officials were not available for comment. The EPA says the final rule will be published in the Federal Register at a later date.

Jeffrey Odefey, staff attorney at the Waterkeeper Alliance, called the rule "an unworkable muddle" that fails to offer "meaningful protection of our nation's waters and communities."

But industry groups contend the rule effectively sets a "zero-discharge" standard for all livestock operations.

"With or without a permit, swine operations that are not well managed and have discharges are facing severe penalties," said Michael Formica, environmental policy counsel for the National Pork Producer Council. "These rules really raise the water quality bar for us, but despite this challenge, producers are going to make this rule work."

Bob Stallman, president of the American Farm Bureau, echoed that view.

"A positive aspect is that livestock farmers will have flexibility to evaluate their farm and determine whether or not to secure a permit," Stallman said. "Regardless of the farmer's decision, there is no doubt they will have to meet challenging environmental standards."

Environmentalists are far from convinced.

The voluntary decision as to whether an NPDES permit is needed "would not be reviewable by federal or state authorities under the final rule," according to Eric Schaeffer, director of the Environmental Integrity Project and a former EPA enforcement official.

The regulation "literally puts the foxes in charge of their gigantic henhouses, as well as hog and dairy confinement operations," he warned.

The EPA said the rule responds to a 2005 court decision that rejected a 2003 regulation developed to tackle the same issue.

The court found the 2003 regulation failed to ensure that factory farms would be held accountable for discharging animal wastes into the nation's waters. It also called on the EPA to remove the requirement that all CAFOs apply for NPDES permits.

But the court's ruling, Schaeffer said, did not mean EPA needed to hand authority over to the industry to make permitting decisions. "The court and the law provide the EPA with the tools to determine which animal confinements are likely to pollute and therefore require permits."

-- By J.R. Pegg, ENS Washington Bureau Chief

Copyright Environment News Service (ENS) 2008. All rights reserved.

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