A post-Waterkeeper CAFO rule

With all the talk on excluding manure from Superfund and Edmondson vs. Big Poultry (background here and there; the latest), it'd be easy for a critic of Concentrated Animal Feeding Operations to overlook the EPA's issuance of a new proposed rule on CAFOs and the Clean Water Act. (But not VeggieBoards, hat tip.) The regs have been drafted specifically to respond to the Second Circuit's decision in Waterkeeper Alliance v. EPA, 399 F.3d 486 [pdf](2005). We've only gotten around to reading that opinion recently, and profess more ignorance than usual on the topic of the Clean Water Act. That said, the EPA rule purports to answer the concerns raised in Waterkeeper regarding provisions which the court invalidated, including the issuance of permits to the largest of CAFOs without requiring any agency review of the CAFO's plans for handling manure and without meaningful public participation in the permit process.

Factory farm opponents are criticizing the new rule for not requiring all CAFOs to obtain permits. Before Waterkeeper, a CAFO either needed to obtain a permit or prove that it has no potential to discharge pollutants. This burden placement is a milder version of the burden-placing advocated in the scholarship of Taimie Bryant, much milder because it does not ask factory farms to justify their ultimate ends. Unfortunately, the Second Circuit read the CWA to limit the EPA's regulatory power to actual discharges, rather than potential ones. Grist focuses on how the new rule cedes the decision of whether a permit is necessary for a given operation to the CAFO itself. This might not be a problem if every discharge was caught by a regulator. But, as the article notes, enforcement is weak and penalties weaker.

This pro-industry change, along with a prior exclusion for discharges following storms, might lead producers to be fairly happy with the regulatory environment, and the quotes from the industry are mostly positive. But that's not enough! Senator Hagel has proposed a tax credit to subsidize factory farms' efforts to comply with the rules. It's a good thing Big Ag's opposition to Big Government does not extend from opposing environmental laws (and labor laws and animal welfare laws) to taking handouts (well, more handouts).