April 23, 2019 Feature

Citizens of Washington State Work to Fill Gaps in Regulation of Surface and Groundwater Pollution from CAFOs

Sarah A. Matsumoto

Citizens of Washington State have taken an active role in trying to address water pollution from concentrated animal feeding operations (CAFOs). From large chapters of national nonprofits, to region-specific environmental groups, to neighborhoods, community associations, and individuals, the level of engagement and concern for water quality is laudable. However, the efforts and enthusiasm of an engaged citizenry are frequently hindered by a complicated statutory and regulatory scheme, including a sizeable gap covering polluted groundwater in rural areas. Preventing and remediating surface and groundwater pollution from large agricultural operations, in particular, continues to pose a challenge.

Concerns about water quality are not new. An explicit congressional prohibition against polluting navigable waters of the United States dates to the Refuse Act of 1899. Subsequent federal efforts to protect water quality resulted in the passage of the Federal Water Pollution Control Act in 1948, with later amendments to that Act resulting in the commonly known Clean Water Act (CWA) of 1972. Section 301(a) of the CWA expressly states that “the discharge of any pollutant by any person shall be unlawful,” except as in compliance with certain sections of the Act, including section 1342. 33 U.S.C. § 1311(a). Section 1342 establishes the National Pollutant Discharge Elimination System (NPDES) program and provides that “compliance with a permit issued pursuant to this section shall be deemed compliance . . . with section[] 1311 . . . of this title.” 33 U.S.C. § 1342(k). “The discharge of a pollutant” means any “addition of a pollutant to navigable waters from any point source,” 33 U.S.C. § 1362(12), and the definition of “point source” includes, inter alia, “concentrated animal feeding operation[s],” or CAFOs. 33 U.S.C. § 1362(14); 40 CFR § 122.2. The CWA authorizes citizens to sue “any person . . . alleged to be in violation of . . . an effluent standard or limitation under this chapter[.]” 33 U.S.C. § 1365(a)(1). An “effluent standard or limitation” includes a “permit or condition thereof issued under section 1342.” 33 U.S.C. § 1365(f)(6). Authority to administer the CWA’s NPDES program has been delegated to nearly all the states, including Washington.

The NPDES program’s shift in focus toward prevention of pollution at the source, rather than trying to address the contamination once it has reached a body of water, came with an emphasis on identifying and isolating the discrete entity or entities responsible for releasing the pollution and prohibiting those releases absent a permit. The examples of “point source[s]” given in the Act include any “pipe, ditch, channel, tunnel, conduit, well, discrete fissure, container, rolling stock, concentrated animal feeding operation, or vessel or other floating craft[.]” 33 U.S.C. 1362(14). The classic illustration that comes to mind is an industrial facility that pipes its waste into a nearby river; this is the type of polluting activity that necessitates regulation by the Act.

Similarly, CAFOs are also large-scale, industrial operations, capable of housing hundreds or thousands of animals, depending on the species. For example, a medium CAFO is defined as one that meets certain confinement time periods and houses 3,000 to 9,999 sheep or lambs; a large CAFO houses 10,000 or more sheep or lambs. 40 C.F.R. § 122.23(b). Given the scale of typical CAFOs, their inclusion in the CWA’s definition of “point source” makes sense, especially considering the potential for CAFOs to severely impact and degrade nearby surface and groundwaters.

Agricultural activities, like those at AFOs and CAFOs, are widely recognized as significant sources of pollution, both in Washington State and elsewhere. CAFOs pose an especially significant risk to water quality. CAFO waste consists of animal urine and manure, antibiotics and hormones, pesticides, and bacteria and other pathogens. Although contamination of water bodies and other problems associated with intense agricultural operations are well documented, it has proven challenging for impacted communities to put a stop to these problems. One reason for this lies in the somewhat convoluted regulatory scheme that exists—in theory—to protect people from water and other pollution, and the gaps in this scheme that are often effectively exploited by agricultural operations in an effort to continue operating as desired.

A major barrier to effective protection from CAFOs by the CWA is the Act’s exclusions for “agricultural stormwater discharges” and “return flows from irrigated agriculture.” 33 U.S.C. §§ 1362(14), 1342(l)(1). This category of pollution is considered “nonpoint” source pollution; unlike traditional “point source” pollution, nonpoint pollution is diffuse in nature and results from rain or melting snow moving over the ground, collecting pollutants and depositing them into a receiving water body. The scope of the agricultural stormwater exemption has received varying treatment across the country, but courts in the Ninth Circuit have signaled that the exemption should be read narrowly when examining discharges from CAFOs. See, e.g., Cmty. Ass’n for Restoration of the Env’t v. Sid Koopman Dairy, 54 F. Supp. 2d 976, 981 (E.D. Wash. 1999) (noting that agricultural stormwater and return flows from irrigated agriculture exceptions do not “relieve CAFO farmers from responsibility for over applications and misapplications of CAFO animal wastes to fields in amounts or locations which will then discharge into waters of the United States.”). Thus, in Washington State, the types of discharges that qualify as agricultural stormwater are highly specific; a precipitation-related discharge from land controlled by a CAFO will be treated as exempt only if the manure, litter, or process wastewater comprising the discharge has been applied in accordance with the facility’s site-specific nutrient management plan.

The NPDES regulations dealing with CAFOs have undergone significant revisions and reinterpretations in recent years. In 2003, EPA promulgated its final “CAFO Rule,” which enlarged the number of CAFOs required to seek coverage under an NPDES permit and required specific actions to address CAFOs’ land application of manure. Industry groups and environmental groups petitioned for review of the rule in several circuits; the proceedings were eventually consolidated in the Second Circuit. In 2005, the U.S. Court of Appeals for the Second Circuit issued a decision in Waterkeeper Alliance v. EPA, 399 F.3d 486 (2005). While certain portions of the CAFO Rule were remanded for further clarification and analysis, some were left intact, including EPA’s authority to regulate land application of manure to crop fields, EPA’s interpretation of the meaning of “agricultural storm water,” and the CAFO effluent guidelines.

Still other provisions of the rule were vacated, including two major sections. First, the court vacated the provisions that would have allowed the permitting agency to issue permit coverage to a CAFO without incorporating the terms of that CAFO’s nutrient management plan (NMP) into the permit, and without requiring agency and public review of the NMP prior to issuing permit coverage. Second, the court vacated the provisions that would have required all CAFOs to apply proactively for NPDES permit coverage, finding instead that because the CWA only regulates actual discharges rather than potential discharges, EPA lacked the authority to impose a duty to apply on every CAFO. Unfortunately, this meant that although the Second Circuit acknowledged that “historically at least, [large CAFOs have] improperly tried to circumvent the permitting process[,]” it felt constrained by the federal statutory text. Waterkeeper Alliance, 399 F.3d at 506 n. 22.

However, Washington State’s enforcement authority over its own water quality control laws differs in a key respect. According to Revised Code of Washington (RCW) 90.48.120, the Department of Ecology (Ecology) has the authority to initiate enforcement both when a person actually pollutes a waterbody, but also when a person “creates a substantial potential to violate” (emphasis added) the state’s water quality laws. Additionally, a 2013 Washington State Supreme Court decision reinforced Ecology’s ability to exercise its “potential to pollute” authority in the context of nonpoint source agricultural pollution. In Lemire v. Ecology, the court held that “Ecology is authorized to regulate nonpoint source pollution” and recognized Ecology’s authority to act to remedy “not only actual violations of the state WPCA [RCW 90.48 et seq.], but also those activities that have a substantial potential to violate the WPCA.” Lemire v. State Dep’t of Ecology, 178 Wash. 2d 227, 233 (2013). So, while the federal enforcement mechanisms currently available via the CWA may be limited to addressing actual discharges, states—like Washington—can and do have broader authority to take meaningful enforcement action when needed. Just because the authority exists, however, does not necessarily mean states will exercise it.

Washington State’s Convoluted Framework

In Washington State, most—but not all—CAFOs are dairies, and the authority for dairy CAFO enforcement is split between Ecology and the Department of Agriculture (WSDA). In 1998, the legislature passed the Dairy Nutrient Management Act, RCW 90.64 et seq., which included as one of its stated purposes: “to establish an inspection and technical assistance program for dairy farms to address the discharge of pollution to surface and ground waters of the state that will lead to water quality compliance by the industry.” The Dairy Nutrient Management Program is administered by WSDA; however, because the program is a “water quality” program, some components involve coordination with Ecology. The details of this coordination and division of authority are described in a Memorandum of Understanding (MOU) in which the agencies attempted to “identify the areas that are the responsibility of each agency and in cases where the two agencies share responsibilities specify how they will coordinate and work together.” Memorandum of Understanding between the Washington State Department of Agriculture and the Washington State Department of Ecology (2011 version available at https://agr.wa.gov/FP/Pubs/docs/MOUAgricultureEcology2011Final.pdf). The MOU confirms, again, that Ecology retains authority under state law to initiate compliance actions on any livestock operations where “human health or environmental damage has or may occur due to potential or actual discharges” (emphasis added). By contrast, “complaints for dairy, AFO, permitted CAFO and manure applications made by a permitted CAFO are handled by WSDA.” This divided authority means that Ecology is still ultimately accountable to EPA for ensuring compliance with the CWA for AFOs and CAFOs, but that WSDA will be the primary agency responsible for conducting inspections and making initial enforcement recommendations for a large subset of those facilities. For example, according to the MOU, WSDA “is responsible for inspections and compliance actions for all dairies[,]” and “is responsible for inspections and may take compliance action on permitted dairies.”

This split in authority creates the perception of a conflict, because, while Ecology’s mission is to “protect, preserve, and enhance Washington’s land, air, and water for current and future generations[,]” WSDA’s mission includes the goal of “support[ing] the viability and vitality of agriculture while protecting consumers, public health, and the environment.” The Dairy Nutrient Management program—purportedly a “water quality” program—displays on its website a two-part mission statement where one element is to: “[h]elp maintain a healthy agricultural business climate.” WSDA readily acknowledges that raising the profile of the industry is part of its work, which is seen by many citizens as directly influencing its ability to recommend meaningful enforcement action for violations. The resulting problem with having the agency tasked with promoting the agriculture industry as the first-level inspector for dairy CAFOs is apparent in several court decisions. A July 20, 2011, WSDA inspection report of the Nelson Faria Dairy noted that the facility was “in great shape” and commended the dairy for its “[g]ood use of nitrates[,]” yet a few months later, a court found that the defendant’s “manure management practices are the predominant source of the nitrate contamination found in the monitoring wells and, correspondingly, local groundwater. These practices include consistent over-application of manure to fields located adjacent to, and nearby, the Dairy.” Cmty. Ass’n for Restoration of the Env’t v. Nelson Faria Dairy, No. 04-cv-3060-LRS, 2011 WL 6934707 *9 (E.D. Wash. Dec. 30, 2011). And although it heard claims brought under the Resource Conservation and Recovery Act, and not the CWA, the court in Cmty. Ass’n for Restoration of the Env’t v. Cow Palace, LLC, 80 F. Supp. 3d 1180 (E.D. Wash. 2015), similarly confirmed the inaccuracy of a WSDA inspector’s reports when it found that the defendant CAFO’s manure applications were “untethered” from its Nutrient Management Plan and causing an imminent and substantial endangerment to human health or the environment.

So, on the one hand, Ecology enjoys a court-recognized authority to enforce both actual and potential discharges under the CWA, while on the other, it has sub-delegated a portion of its authority to a separate agency that has demonstrated an inability to accurately document poor operational practices that pose a risk to water quality. This division of authority leads to dismal results; as described above, even where facilities are being inspected by a regulator, problems persist to such a degree that litigation is often the only means of solving them. And, as discussed below, even in the permit-writing context where Ecology’s sole authority is clear, the results often leave much to be desired.

The Permit Problem

As the administrator of the NPDES program in Washington State, Ecology has the authority and responsibility to write and issue both general and individual NPDES permits. Because the goal of the CWA is to “eliminate” discharges of pollutants, NPDES permit terms are capped at five years to enable a review of, inter alia, available technologies that will help to achieve that goal. Ecology first issued a general permit for CAFOs in 1994 but did not reissue the general permit until 2006. Perhaps unsurprisingly, the 2006 general permit was not particularly effective—only a few facilities were covered, with most CAFOs in the state simply claiming that they did not discharge pollutants and thus, needed no permit coverage.

Although Washington State’s 2006 CAFO General NPDES Permit expired in 2011, an updated permit did not take effect until 2017. In the interim, Ecology released for public review and comment a preliminary draft permit (2015) and a draft permit (2016) before issuing its final permit in January of 2017. In conjunction with the federal NPDES general permit, Ecology also drafted and issued a waste discharge permit based on state law only (Washington’s Water Pollution Control Act, Chapter 90.48 Revised Code of Washington). The state-only and NPDES permit are nearly identical in terms of the applicable requirements for covered facilities.

Citizens and environmental groups throughout the state, particularly those in areas dealing with the negative impacts of CAFO pollution, were advocating for protective permit terms in both the state-only and combined NPDES permit. Some of these groups had been involved in an unsuccessful appeal of the 2006 permit and hoped for a better outcome this time around. There were some reasons to be optimistic: An Ecology hydrogeologist completed an extensive Manure and Groundwater Quality Literature Review in 2016, and several federal courts had the opportunity to examine certain elements of pollution resulting from CAFOs. Ecology described its literature review as “a tool to determine the state of the science to better support policy decisions that protect water quality,” and, indeed, citizen groups were pleased to see conclusions like the following:

[T]he majority of researchers agree that groundwater monitoring is the only way to definitively determine impacts to groundwater quality from residual soil nitrate. Monitoring other media, such as soils, can indicate whether manure management practices need to be adjusted, but it cannot conclusively determine the extent of the impacts to groundwater quality.

Melanie Redding, Washington State Department of Ecology, Manure and Groundwater Quality Literature Review, Pub. No. 16-03-026, at 82, 100 (2016).

In keeping with its stated description of the literature review, Ecology’s survey of the state of the science could provide a basis for policy decisions aimed at protecting groundwater, including, potentially, support for a decision to issue a protective permit. Additionally, as discussed in greater detail elsewhere, multiple federal district court judges in Washington had rendered findings about the conditions at certain CAFO operations and reached conclusions about the likelihood that those facilities were a source of pollution. Equipped with this additional information, citizens submitted extensive comments on each iteration of the draft and final permits that Ecology issued.

Sadly, many of the most protective permit terms and scientific findings—some of which were included in the early drafts of the permit—were either substantially watered down or eliminated entirely from the final version of the permit. For example, in the section of the preliminary draft permit describing which facilities must apply for permit coverage, Ecology stated the following: “Ecology has determined that if the CAFO has a lagoon that does not have a double geomembrane liner with a leak detection system between the liner layers that it is discharging to groundwater.” Many environmental groups informed Ecology in comments that this conclusion provided support for a mandate requiring all medium and large CAFOs to obtain permit coverage. They argued that because Ecology has an obligation to act to prevent a discharge or to issue a permit that will ultimately eliminate a discharge when it recognizes that a discharge is occurring, this finding should have resulted in compulsory permit coverage for medium and large CAFOs. To the dismay of environmental groups, Ecology’s key determination that all unlined lagoons discharge to groundwater was absent from the final permit, however, along with any requirement for universal coverage.

In addition to universal coverage, citizens asserted that Ecology’s conclusion about lagoons supported a requirement that all CAFO manure lagoons should be fitted with leak detection systems in between double layers of geomembrane liners or double layers of equivalent or superior technology to prevent discharges to groundwater. Many permit terms that citizens sought to include were motivated by a desire to protect water quality, such as lower targets for soil nitrate levels and required surface and groundwater monitoring. Citizens also wanted to ensure that the permit protected the public’s right to review and comment on each facility’s Manure Pollution Prevention Plan prior to the issuance of permit coverage, rather than many months after coverage had already been issued. Once again, however, citizens’ requests were not incorporated into the final permit.

A coalition of environmental groups appealed the permits to Washington’s Pollution Control Hearings Board. The Washington State Dairy Federation and Washington Farm Bureau also appealed, and the appeals were consolidated. The Board heard the appeals in May and June of 2018, and issued its order in late October. See Washington State Dairy Fed’n v. State of Washington, Dep’t of Ecology, PCHB No. 17-016c, Findings of Fact, Conclusions of Law and Order (Oct. 25, 2018). The Board deferred to Ecology on most issues, remanding the permit only with respect to an issue put forth by the industry groups. According to Ecology, there are roughly 200 to 250 dairies in the state that meet the size criteria of a CAFO, yet at the time of the Board hearing, only 23 of those had permit coverage, with another 10 to 12 applications pending. It remains to be seen how effective this permit will be, but the current permit terms and low number of facilities covered leave little room for optimism.

Litigation to Fill a Regulatory Gap

Even though citizens actively undertake a variety of activities to address existing agricultural pollution and prevent future contamination, litigation often ends up being a necessary course of action. Citizen suits have been one method of attempting to fill the holes in the patchwork system that exists to protect groundwater. One aspect of this multifaceted issue is the question of how to address discharges of pollutants that first flow into groundwater before reaching surface water. Although the CWA protects the quality of surface water, because groundwater has not been considered a “navigable water,” direct regulation of groundwater quality under the CWA has not been feasible. But some courts have held that discharges that travel through groundwater before reaching surface water are cognizable under the Act. See, e.g., Hawaii Wildlife Fund v. Cty. of Maui, 886 F.3d 737 (9th Cir. 2018); Upstate Forever v. Kinder Morgan Energy Partners, 887 F.3d 637 (4th Cir. 2018). Petitions for certiorari have been filed in both of these cases, and on January 3, 2019, the solicitor general submitted a brief stating that the U.S. Supreme Court should accept review of the County of Maui case—limited to the question presented that focuses on the scope of the CWA—and hold the Kinder Morgan petition pending review of the County of Maui case. Brief for the United States as Amicus Curiae, Cty. of Maui, Hawaii v. Hawaii Wildlife Fund, No. 18-260, and Kinder Morgan Energy Partners v. Upstate Forever, No. 18-268 (Jan. 3, 2019).

In Washington State and elsewhere, citizens are dealing with a different aspect of the groundwater regulatory gap. Although the Safe Drinking Water Act regulates public drinking water systems, it does not cover private drinking water wells. In rural areas like those near CAFOs, many people obtain their drinking water from private wells that tap into area groundwater. The regulatory gap for groundwater protection poses a problem when private, residential wells become polluted; without the traditional methods of recourse (such as reporting contamination to a state or federal agency that could exercise enforcement authority to address the problem), owners of private wells instead must find other alternative means of solving pollution problems.

One of the major pollutants of concern present in manure is nitrogen—specifically, nitrate. To a plant, certain forms of nitrogen can be beneficial nutrients that aid in its growth. But to humans, excessive nitrate consumption can interfere with the transport of oxygen in the bloodstream. The risks are especially significant for vulnerable populations, including pregnant women and infants. The heightened susceptibility of infants to this health risk is widely recognized, such that the condition that results from ingesting drinking water with high levels of nitrate—methemoglobinemia—is also commonly referred to as “blue baby syndrome.” The dangers posed by high nitrate in drinking water are further confirmed by the fact that EPA has established a maximum contaminant level of 10 mg/L for nitrate in drinking water.

Nitrate from animal manure at CAFOs can reach groundwater in a couple of ways. As discussed above, storing manure in unlined earthen pits is one of the manure management techniques that can lead to groundwater contamination. Another practice that poses a significant risk to groundwater is the application of manure to a crop field in quantities that exceed what the planted crop is capable of using. Nitrate is water soluble, and if not taken up by plants, it will continue to move down through the soil column and eventually reach groundwater. Thus, it is important for any farmers who apply manure as fertilizer—and CAFOs in particular, who tend to generate large quantities of manure—to pay attention to the needs of their crops and only apply manure nutrients in an amount that the crop will use.

Groundwater contamination in rural drinking water wells has been a persistent problem in the Lower Yakima Valley. But, because of the regulatory gap, few options are available to residential well owners who find their drinking water polluted with high nitrate levels. In 2013, a local community group and national food safety organization filed complaints against a group of dairy CAFOs in the Lower Yakima Valley. The litigation was brought under the citizen suit provision of the Resource Conservation and Recovery Act, alleging that the dairy CAFOs’ manure management practices constituted open dumping and presented an imminent and substantial endangerment to human health or to the environment. See 42 U.S.C. 6972(a)(1)(B). Many months of discovery followed, including onsite facility inspections, soil and water sample collection, and depositions of expert hydrogeologists and soil scientists, WSDA inspectors, and the CAFO farm managers and consultants.

In their motion for summary judgment against one of the defendant dairies, the plaintiffs argued that defendant dairy did not pay attention to crop fertilization needs, which resulted in large over-applications of manure to crops. They also argued that the CAFOs’ manure storage lagoons leaked, resulting in elevated nitrate levels in underlying groundwater. The court agreed, concluding that “a reasonable trier-of-fact . . . could come to no other conclusion than that the Dairy’s operations are contributing to the high levels of nitrate that are currently contaminating—and will continue to contaminate as nitrate present below the root zone continues to migrate—the underlying groundwater.” Cmty. Ass’n for Restoration of the Env’t v. Cow Palace, LLC, 80 F. Supp. 3d 1180, 1226 (E.D. Wash. 2015). Following the decision, the parties entered consent decrees that require substantial operational changes, including installing synthetic liners in storage basins and more careful—and protective—soil testing and application of manure to crop fields, as well as the provision of free reverse osmosis filters to nearby residents. Although this ruling resulted in a positive outcome for area residents whose drinking water was tainted by nitrate pollution, the regulatory gap that necessitated the litigation, along with the impact to thousands of rural homeowners, still exists.

The regulatory gap over groundwater quality and resultant pollution problems from CAFOs are not unique to Washington State. A November 3, 2018, article in the New York Times highlighted the extent of the problem in Wisconsin. Jack Healy, Rural America’s Own Private Flint: Polluted Water Too Dangerous to Drink, N.Y. Times, Nov. 3, 2018, at A16. While the article focused on rural communities in Wisconsin, its description of the bevy of bad choices available to rural homeowners who find their wells contaminated could have come straight from the Lower Yakima Valley: “Homeowners say they are forced to choose between installing expensive filtration systems, spending thousands to dig deeper wells, ignoring the problem or moving.” Id. The combination of shrinking state budgets and shifts in regulatory priorities—or deregulation altogether—means that the problems facing rural well owners are not likely to be resolved any time soon. Citizens have shouldered—and likely will continue to shoulder—a heavy burden with respect to filling gaps in federal and state oversight and enforcement of surface and groundwater pollution stemming from CAFOs. Although these efforts are admirable, they are also a troubling signal that regulatory gaps persist and indicate that the current structure must change to protect the public’s shared interest adequately in clean, safe waterways and drinking water.

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Sarah A. Matsumoto

Ms. Matsumoto is a clinical professor at the University of Denver Sturm College of Law. She may be reached at smatsumoto@law.du.edu.