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Published by the American Society of Agricultural and Biological Engineers, St. Joseph, Michigan

Citation:  Pp. 317-376 in Animal Agriculture and the Environment: National Center for Manure and Animal Waste Management White Papers. J. M. Rice, D. F. Caldwell, F. J. Humenik, eds. 2006. St. Joseph, Michigan: ASABE.  .(doi:10.13031/2013.20258)
Authors:   Terence J. Centner

The federal government regulates concentrated animal feeding operations (CAFOs) under the constitutional authority of the Commerce Clause and the statutory authority of the Clean Water Act. Effluent guidelines for Feedlots Point Source Category are enumerated in the Code of Federal Regulations for large animal operations. These guidelines are implemented through a federal permitting system. Dissatisfaction with current federal provisions governing CAFOs led the Environmental Protection Agency to adopt new regulations that become effective April 14, 2003. These regulations expand federal authority over polluting activities.

Livestock producers are concerned about the contamination of water, especially groundwater, and their potential liability for injuries. Persons injured by agricultural nutrients from animal feeding operations (AFOs), including CAFOs, have several different legal arguments. Common law causes of action in strict liability, negligence, nuisance, and trespass might be employed by aggrieved persons. Lawsuits based on these arguments would be brought by neighbors, not a very amicable situation in rural communities where most AFOs are situated. For nuisance causes of action, AFOs may quality for the anti-nuisance protection of their states right-to-farm law.

Due to shortcomings associated with the common law principles, governments have taken legislative steps to address the discord created by the activities and byproducts of animals. The federal Clean Water Act establishes federal standards for discharges from point sources of pollution and allows states to assume authority for regulating nonpoint-source pollution. The Acts provisions complement the reserved authority of states to enact laws that enhance the welfare of their citizens. CAFOs in every state are subject to point-source pollution requirements. AFOs that are not CAFOs are governed by state nonpoint-source pollution regulations. In the past ten years, most states have enacted special laws addressing potential pollution by AFOs. Some of these go beyond federal point-source requirements or may address groundwater and air pollution. Local ordinances also regulate AFOs and the activities and practices that are possible in zoned areas. Aggrieved persons may select from a variety of statutory and regulatory provisions to seek relief for harm or from a burdensome situation.

The designated authority used by states in regulating AFOs varies considerably. Some states have assumed that their existing water pollution legislation provides authority for state agencies to adopt more detailed regulations that apply to AFOs. In these states, no new legislation has been passed. Agencies have proceeded under existing laws to adopt regulations that safeguard the environment by restricting polluting activities by AFOs. In other states, legislatures have enacted special legislation concerning AFOs. The laws may list various requirements, or may direct a state agency to carry out the law. Based on these directions, the designated state agency adopts more detailed rules or regulations setting forth specific requirements for AFOs.

AFOs that are within the definition of a CAFO are point sources of pollution and must have a permit under federal law. AFOs that are not CAFOs are not required to have a federal permit, but a state may impose its own permit requirements. The new regulations adopted by the EPA seek to increase the number of operations that would be designated as CAFOs. By requiring more operations to have permits, the government hopes to curb nutrient pollution. To justify the new provisions, the EPA cites data from the National Water Quality Inventory. But an evaluation of data and assumptions disclose several shortcomings.

Our laws and regulations set forth a number of governmental enforcement mechanisms to respond to violations. In many cases, a decision to prosecute involves the quality and quantity of resources and personnel available for responding to problems. Even with enough resources, there can be a problem with the agencys commitment to enforcement. Under the cooperative federalism in-corporated in most environmental statutes, federal agencies commission states to enforce federal laws. For enforcement of laws under the management of the EPA, an annual enforcement agreement is executed between the state and EPA regional office setting forth enforcement commitments. Agencies in charge of carrying out environmental legislation may lack the authority to prosecute violations. Instead, they must refer violations to the attorney general.

The regulatory structure governing animal waste management suggests three major concerns. First, do governments have a problem with enforcing existing regulations, and what does this mean? Inadequate enforcement efforts by governments may lead to the discharge of unauthorized pollutants into our countrys waters. The unwillingness of governments to eliminate pollution from violators may culminate in the public calling for more regulations or recommend additional remedies for aggrieved persons.

Second, are nonpoint sources of pollution causing pollution that needs to be controlled? The lack of definitive data suggests that we do not have sufficient information to develop efficient regulations. Yet such does not mean that governments cannot continue with efforts to regulate nonpointsource pollution. Because the Clean Water Act does not meaningfully regulate nonpoint sources, additional controls over this type of pollution are dependent upon other authority. Currently, state governments are in charge of devising appropriate controls on nonpoint-source pollution. A third concern is whether governmental regulation of CAFOs is unnecessarily costly? In crafting new regulations to reduce water pollution, the EPA may require expenditures by AFOs that are not meaningfully contributing to the impairment of water quality. Critical production indicators and location screening offer strategies to provide exceptions for operations that are not impairing water quality.

The new regulations should facilitate greater remedial actions against point-source polluters. An allegation of a permit violation against a CAFO will provide a cause of action that is easier to prove than alternative grounds. Moreover, enforcement actions against CAFOs are not dependent on governmental action because the Clean Water Act allows citizen suits. With the expansion of operations classified as CAFOs under the new regulations, citizens will have increased opportunities to sue polluters for permit violations.

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