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Ninth Circuit: Idaho livestock farms must monitor water pollution

A unanimous Ninth Circuit panel rejected the EPA’s argument that pollution monitoring wasn't needed because it uses other tools to ensure compliance with the Clean Water Act.

SAN FRANCISCO (CN) — The U.S. Environmental Protection Agency must start requiring Idaho livestock farms to monitor water pollution in the Snake River and its tributaries, where unsafe levels of E. coli and other contaminants have been detected, a Ninth Circuit panel ruled Thursday.

“Today’s decision strikes a major blow against EPA’s practice of granting illegal exceptions and special treatment to the factory farm industry,” said Tarah Heinzen, legal director for Food & Water Watch.

Joined by Snake River Waterkeeper, Food & Water Watch challenged the EPA’s May 2020 permit scheme for concentrated animal-feeding operations, or CAFOs, in Idaho. They claimed the agency’s refusal to mandate water quality monitoring as a condition of the permit was arbitrary, capricious and in violation of the Clean Water Act.

The EPA insisted that it uses other tools — such as management plans, self-reporting and surprise inspections — to ensure animal feedlots comply with anti-pollution rules.

On Thursday, a unanimous three-judge Ninth Circuit panel rejected the EPA's position, finding pollution monitoring is necessary and required by law to prevent animal feces from leaching into groundwater or leaking from wastewater-storage lagoons.

“Without a requirement to monitor runoff from irrigated CAFO fields, there is no way to ensure that a CAFO is complying with the Permit’s dry weather no-discharge requirement for land-application areas,” U.S. Circuit Judge William Fletcher, a Bill Clinton appointee, wrote for the panel in a 25-page ruling.

A 2016 report found waterways in areas of Idaho with copious livestock farms had excessive and unsafe levels of E. coli, fecal coliform and nutrients commonly associated with animal manure, along with low levels of dissolved oxygen, which is vital for the health of endangered fish and other aquatic life.

Because agricultural stormwater runoff is exempt under the Clean Water Act, the EPA argued it would be challenging to distinguish pollution pushed into waterways by rain from contamination that occurs in dry weather.

During a hearing this past May, U.S. Circuit Judge Michelle Friedland, a Barack Obama appointee, questioned why the EPA couldn’t simply look at the monitoring data on dry days versus rainy days.

It is unclear how much of an impact this legal victory will have on the industry in Idaho because animal feedlots are not technically required to obtain permits according to a 2011 Fifth Circuit ruling in Nat’l Pork Producers Council v. EPA. That decision held that because animal feedlots are not allowed to discharge any pollution into U.S. waters, except for exempted stormwater runoff, they need not seek permission to engage in that illegal activity.

In Idaho, no animal feeding operations had applied for permits when the EPA issued its draft permit proposal in October 2019. Since then, only one operator — a large dairy farm — had applied for a permit, according to Food & Water Watch attorney Tyler Lobdell, who shared that statistic during oral arguments in May.

Despite questions about whether those operators need to obtain permits, environmental groups welcomed the Ninth Circuit's decision as a major victory that will help hold polluters accountable in Idaho.

“The public deserves to know what is being put into waterways by the state’s worst polluters, and with this decision we can begin to understand the actual levels of factory farm effluent being discharged into the Snake River in order to address their sources and ecological impact,” said Buck Rogers, executive director of Snake River Waterkeeper, in a statement Thursday.

Reached by phone, Idaho Cattle Association Vice President Cameron Mulrony said his industry does everything it can to comply with environmental regulations while “producing a safe, reliable food source for the American public.”

Mulrony said more regulations often bring higher costs, which is always a concern for the industry.

“There’s multiple factors related to water quality, not just our industry or just agriculture,” Mulrony said. “But we often face the brunt because we are the one industry that has regulatory mechanisms for that.”

Heinzen, of Food & Water Watch, begs to differ. In a statement Thursday, she said animal feeding operations cause serious water quality problems in Idaho. The feedlots can leak nitrates, pathogens, pharmaceuticals and other contaminants into the Snake River and its tributaries, she said.

“Factory farms are a huge source of water pollution in Idaho and across the country, but without pollution monitoring, they have been able to hide this pollution from citizens and regulators,” Heinzen said. “Monitoring is a critical first step towards holding factory farms accountable for illegal pollution.”

An EPA spokesperson declined to comment.

Senior U.S. District Judge Frederic Block, a Bill Clinton appointee sitting by designation from the Eastern District of New York, joined Fletcher and Friedland on the panel.

Follow Nicholas Iovino on Twitter

Categories: Appeals Environment Regional

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