Environmental advocates claim federal regulators have violated the law by refusing to tighten water pollution regulations for concentrated animal feeding operations.

Food & Water Watch and a coalition of other nonprofits want a federal appeals court to order the U.S. Environmental Protection Agency to reconsider imposing tougher rules on CAFOs, which critics often deride as pollution-spewing “factory farms.”

By the agency’s own estimate, 10,000 CAFOs are discharging contaminated runoff into streams and rivers contrary to the Clean Water Act, said Emily Miller, attorney for Food & Water Watch.

Regulations ‘insufficient’

“EPA has further admitted that its regulations have proven insufficient to compel Clean Water Act compliance and even stand in the way of effective enforcement,” she said during Sept. 12 oral arguments before the 9th U.S. Circuit Court of Appeals in San Francisco.

The EPA has admitted to the 9th Circuit that CAFOs are degrading water quality despite existing rules but claims it should be given more time to decide how to best deal with the issue.

“I think it’s fair to say it’s an ongoing problem, an ongoing challenge,” said Paul Cirino, attorney for the government.

However, the environmental nonprofits have “underestimated the robustness of the existing regulations,” and it may be more practical to strengthen enforcement than undertake resource-intensive regulatory revisions, he said.

“It serves no purpose for the agency to do a rule-making to do a rule-making,” Cirino said.

The dispute before the 9th Circuit stems from a petition filed by the environmental nonprofits, which demanded the EPA stop exempting wastewater applied to crop fields by CAFOs from Clean Water Act requirements, among other requests.

The EPA fully rejected their petition because it’s performing “a holistic evaluation” of the CAFO program, which is intended to be “more efficient and effective than considering and pursuing changes piecemeal.”

The environmental nonprofits claim the EPA’s denial is “arbitrary and capricious,” contrary to federal administrative law, and undermines the agency’s Clean Water Act obligations.

“They do not dispute the severity of the problem but they are not saying they are going to fix it,” Miller said. “EPA has already tried for decades to improve implementation. Those efforts failed.”

The legal action isn’t necessarily meant to force the EPA to impose new regulations, but rather to reconsider the petition while abiding by its legal obligations, she said.

If the agency properly complies with legal standards, the environmental nonprofits are confident it will come to the conclusion that CAFO water rules must be tightened, Miller said.

Meanwhile, the EPA cannot cite gaps in its data about CAFO pollution to avoid taking action, she said. “Lack of information is not an excuse to evade statutory duties.”

EPA studying CAFO impacts

The EPA counters that it’s convened a committee of stakeholders and started a study on CAFO water impacts to help the agency decide whether it needs updated rules or stricter enforcement.

“Those sources will provide the information the EPA needs in a relatively short time frame,” said Cirino, the government’s attorney.

For example, the agency wants to better understand how GPS-guided precision agriculture tools equipped with sensors can measure real-time manure applications to fields, he said.

“That’s obviously relevant to all aspects of the CAFO program,” Cirino said.

Agriculture organizations, including the American Farm Bureau Federation and National Pork Producers Council, have intervened in the case, claiming the EPA’s estimates of CAFO wastewater discharges are likely inaccurate.

“The reality is that those estimates are outdated,” said David Chung, attorney for the farm organizations. “We don’t have a real number, which is why EPA is studying the problem.”

Eliminating the agricultural stormwater exemption for CAFOs is “disproportionate to the problem,” as legal precedent has determined farms shouldn’t be liable for discharges triggered by weather, he said.

“There is a lot of supposition here and we respectfully submit that’s not a good basis to force EPA to completely detonate a statutory exclusion,” Chung said.