A proposed agreement designed to force EPA to provide more oversight over animal feeding operations and discharge permits in Pennsylvania could signal a willingness on the part of the agency to look more closely at using its Clean Water Act authority to reduce nutrient pollution in watersheds nationwide.

But a former EPA water attorney argues the agency, in his experience, has been afraid to take on the ag industry, and the proposed settlement is also packed with enough qualifiers that the ultimate results could be underwhelming.

“This is full of all kinds of aspirations and targets” and includes many activities EPA already was required to perform under the CWA, said Mark Ryan, a former EPA lawyer who worked on Clean Water Act issues, including the Obama administration's WOTUS rule and enforcement matters.

“In terms of enforcement actions, they basically agreed to focus on maybe doing some more inspections than they have in the past in certain targeted areas,” Ryan said. But that doesn't necessarily mean livestock operators will be facing enforcement actions, especially considering the politically difficult task of taking on agriculture, Ryan said.

“When you're talking about going after farms, that's really politically fraught,” Ryan said. “I know ag seems to think it's got a bull's-eye on its back and it's being persecuted, but I can assure you ag is the most sacred cow, no pun intended, inside EPA.”

When announced last week, the agreement was hailed by the Chesapeake Bay Foundation and representatives from Bay watershed states that had sued EPA to take action against Pennsylvania.


Former EPA Attorney Mark Ryan

“The Trump administration did not use its Clean Water Act tools to hold all Bay partners accountable. This proposed settlement shows that the Biden administration has taken a significant step forward in meeting that obligation,” CBF President Hilary Harp Falk said.

Under the agreement, EPA said it would identify animal feeding operations in two counties in south-central Pennsylvania that may meet the requirements for a discharge permit under the CWA. Depending on the results of that evaluation, and “if EPA believes that Pennsylvania is not making sufficient progress” toward meeting the 2025 pollution reduction goals in the multi-state Chesapeake Bay agreement, EPA will begin to look at facilities in five other counties within the watershed.

If EPA determines 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 proposed settlement says.

“EPA may, in its discretion, designate such an AFO as a point source subject to NPDES permitting,” the agreement says.

In a statement, the Pennsylvania Department of Environmental Protection said it is reviewing the settlement but “remains committed to working with our local, state, and federal partners to restore local waters and the Chesapeake Bay.”

The state said its $220 million Clean Streams Fund is spurring action “to restore and protect the waters in our local rivers and streams.”

The Pennsylvania Farm Bureau said of the proposed settlement that it’s “looking forward to augmenting our existing efforts” with funding from a $154 million ag conservation and assistance program – part of the Clean Streams Fund –  approved by the legislature and supported by PFB.

“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,” PFB added.

Falk, the Chesapeake Bay Foundation president, said 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. She said the agency “also committed to increased compliance and enforcement efforts.”

But the agreement doesn’t go quite that far, saying EPA “will, subject to resource availability, maintain or increase compliance-assurance activities over its FY2022 baseline (prorated on an annual basis as appropriate) within” the seven counties — Lancaster, York, Franklin, Lebanon, Cumberland, Centre, and Bedford.

While Ryan appeared pessimistic about the proposed agreement's impacts, other litigators were more sanguine.

The settlement left unresolved the issue of whether EPA actually has the authority to enforce compliance with the so-called “pollution diet” for the bay. Pressed by a reporter on that issue in a press call last week, CBF vice president for litigation Jon Mueller said the two parties “have a different opinion on that.”

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“There are certainly issues with the way the Clean Water Act is written, and it gives EPA a fair amount of discretion,” Mueller said. “The important thing to remember here is that before, we didn't have any agreement from EPA that it would actually do any of those things.”

Rob Michaels, a senior attorney with the Environmental Law and Policy Center in Chicago, agreed.

“This is not nothing,” he said. “I think it is an important step for EPA to recognize the importance of having proper permitting required for industrial livestock operations, and to have those permit limits enforced.”

Rob-Michaels-300.jpgRob Michaels, Environmental Law & Policy CenterThe settlement “is requiring EPA to do, frankly, less than what the Clean Water Act actually requires, but to do more than what typically happens in practice,” Michaels said. He called it “notable” that EPA may, under the agreement, identify AFOs that should be designated as concentrated animal feeding operations, or CAFOs, which cannot discharge waste without a permit.

“The things (the settlement is) requiring EPA to do are things that EPA should already be doing, but unfortunately, they're not,” Michaels said

“What I'm hoping is that this settlement might be the beginning of EPA taking (Total Maximum Daily Loads) seriously as a tool for remediating impairments,” he added. “And in connection with that, recognizing that CAFOs and medium CAFOs that should be designated as CAFOs are major contributors to nutrient pollution, and TMDLs are a tool to get that pollution under control.”

Litigation brought by ELPC and others has resulted in the development of a draft TMDL — which EPA defines as the maximum amount of a pollutant allowed to enter a water body — for the Western Lake Erie Basin.

In a settlement with ELPC and Lucas County, Ohio, commissioners, the federal EPA and Ohio state EPA agreed to deadlines to prepare a TMDL for the Western Lake Erie Basin. Ohio EPA released its draft TMDL last fall, which Michaels said falls well short of what is needed. The final TMDL is due by June 30, after which EPA has 90 days to approve or deny it.

Michaels also pointed to a court decision in January out of Oklahoma that found pollution in the Illinois River watershed from Arkansas poultry operations constituted a public nuisance. The judge in the 18-year-old case ordered the state of Oklahoma and the poultry producers to try and resolve the matter. They are still doing so.

“You're starting to see a little bit of movement here, in recognition that the law has really just not been adequately addressing a major source of pollution that's causing devastation of all sorts of waterways, from the Chesapeake Bay, to the Illinois River Watershed to Lake Erie,” Michaels said.

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