The Environmental Protection Agency has agreed to increase oversight of thousands of animal feeding operations in Pennsylvania, including potentially designating them as point sources that would require discharge permits under the Clean Water Act.

The commitment is included in a proposed settlement announced Thursday of lawsuits filed by the Chesapeake Bay Foundation, Maryland, Delaware, Virginia and the District of Columbia. The settlement is subject to a 30-day public comment period, according to Thursday's Federal Register notice

Maryland's Anne Arundel County, the Maryland Watermen’s Association, and Virginia farmers Robert Whitescarver and Jeanne Hoffman joined the CBF lawsuit, which was combined with the state/D.C. lawsuit.

All the parties sought enforcement of the Chesapeake Bay pollution reduction goals for Pennsylvania contained in a multi-jurisdictional bay restoration “blueprint” based on a TMDL, for Total Maximum Daily Load.

Recent evaluations by both CBF and EPA “found that most states were not on track to meet blueprint obligations by 2025, while noting that recent successes at the state level will accelerate pollution-reduction efforts,” CBF said in a release announcing the settlement.

“The settlement requires EPA to, among other things, look for ways to reduce pollution from agriculture, Pennsylvania's biggest source of pollution,” as well as polluted runoff from urban and suburban land, said CBF President Hilary Falk. “EPA also committed to increased compliance and enforcement efforts.”

In November, EPA said Pennsylvania’s most recent Watershed Implementation Plan “does not provide EPA with confidence that Pennsylvania will have all practices and controls in place by 2025 to achieve the [Chesapeake Bay Program’s] partnership’s nitrogen and sediment targets.”

“Marylanders have been doing the demanding work to curb pollution and restore the ecosystem,” Maryland Attorney General Anthony Brown said on a press call Thursday. “I think we can all acknowledge that there's much more work to be done. But we can only get so far without the commitment and the effort of all jurisdictions in the bay’s watershed.”

The Susquehanna River, he noted, contributes 50% of the freshwater to the bay, the largest estuary in the U.S.

The settlement requires EPA to identify animal feeding operations in York and Lancaster counties that may qualify as concentrated animal feeding operations by being “a significant contributor of pollutants to waters of the United States.”

“If EPA determines that an AFO is a significant contributor of nutrients and/or sediment to a water of the United States, EPA will, at a minimum, confer with Pennsylvania to reduce the contributions from such AFO,” the settlement says.

EPA also may, at its discretion, designate the operation as a point source subject to National Pollutant Discharge Elimination System (NPDES) permitting.

If EPA determines Pennsylvania isn’t making enough progress toward its 2025 goals by March 2024, the agency will begin looking at AFOs in five more counties — Franklin, Lebanon, Cumberland, Centre, and Bedford.

The number of AFOs in the seven counties totals about 11,000, CBF said.

Most of the bay states have been critical of Pennsylvania’s progress toward meeting the bay restoration goals. CBF filed its original lawsuit in September 2020, and the EPA, then under the Trump administration, moved to dismiss it.

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Pennsylvania recently began allocating $154 million under a newly funded initiative, the Agricultural Conservation Assistance Program.

Pennsylvania Farm Bureau said it's reviewing the proposed settlement and plans to submit comments.

"Pennsylvania farmers are the Commonwealth’s ‘front-line environmentalists’ focused on caring for the land, air and water in their local communities," the PFB said. "We are looking forward to augmenting our existing efforts with funding from the new (ACAP) , for which Farm Bureau was instrumental in advocating in last year’s state budget. We also support the efforts of the joint EPA-USDA task force dedicated to giving farmers credit for previously uncounted agricultural conservation practices, as well as work by Penn State University and others to ensure that farmers get credit for non-cost-shared conservation practices."

EPA recently said it would study the impacts on water quality from large CAFOs.

More than 50 groups petitioned EPA last fall to increase oversight of large CAFOs, defined as having more than a certain number of animals — 700 dairy cows or 2,500 swine, for instance.

“According to EPA, there are more than 21,000 large CAFOs nationwide,” the groups said in announcing their petition. “EPA admits that many CAFOs discharge water pollution, but fewer than 6,300 large CAFOs hold permits authorizing them to discharge pollution under federal law.” 

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