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Permit to Pollute: Updated Livestock Permit Laws Would Protect Communities

Concentrated/Confined Animal Feeding Operations (CAFOs) are facilities where large numbers of livestock are raised in confinement, in a large climate-controlled barn or outdoor feedlot. Large-scale CAFOs cause a significant hazard to the health and water and air quality of the surrounding communities, largely due to the vast amounts of manure they store onsite and must dispose of. 


In some states, the waste generated by CAFOs far outstrips the sewage generated by cities, but there is a key difference: there is no requirement that animal waste be treated before it is released into the environment. In fact, state policy and regulations generally address animal waste as if all livestock is raised on sufficient pasture that can absorb its waste, rather than in warehouses that may house thousands of hogs or millions of chickens. CAFO waste is stored in huge pits called lagoons, which regularly spill or leak. Open-air lagoons release noxious gasses into the air and surrounding community.


CAFOs are technically regulated under the federal Clean Water Act and Clean Air Act and by state water and air quality laws and regulations. Some states require CAFOs over a certain size to obtain a permit to account for waste disposal, though enforcement of these laws is often inadequate and penalties are low. By any measure, large CAFOs are industrial facilities, but they are exempt from waste disposal regulations that other industries are subject to. 


Old Laws Can’t Address Today’s Facilities

Many state laws governing CAFOs were written 40+ years ago, when these facilities were much smaller. For example, according to the US Department of Agriculture’s National Agricultural Statistics Service, chicken houses in the 1980s measured 400’ by 40’, or 16,000 square feet, holding 20,000 birds. Chicken houses today are likely to be twice that size – 600’ by 60’, 36,000 square feet – and hold 40,000 birds. Today’s sites also have more barns on a single property; it is not uncommon to have 10 houses built as part of a single facility. Most chicken CAFOs raise six flocks per year, which could amount to 2.4 million birds per year at one ten-barn site. Laws and regulations from four decades ago cannot address the needs of today’s massive operations. 


As noted, some states require CAFOs of a certain size to secure a permit. Permit requirements vary by state; in so-called “farm states,” the requirements follow the recommendations of the corporate livestock lobby. The industry insists that existing federal and state CAFO permitting systems are adequate to protect communities from possible water and air pollution. But the industry fails to mention that because CAFOs have been carved out of any meaningful regulation, CAFO permits in practice act as a permit to pollute. 


Here are four CAFO permitting myths:  


#1: Federal CAFO permits are sufficient to prevent water pollution. 

Under US Environmental Protection Agency (EPA) rules, CAFOs above a certain size must obtain a National Pollutant Discharge Elimination System (NPDES) permit. The livestock industry sued the EPA in 2012 over this requirement, and as a result, some states have begun to follow a less restrictive approach. Oregon, for example, only requires NPDES permits for CAFOs that “propose” to discharge instead of those that “actually” discharge to waters of the state, which is all CAFOs. CAFOs remain a significant source of both surface and groundwater pollution across the country. A 3-year Nebraska study showed that poultry litter application on fields across the state showed a significant increase in ground and surface water contamination from phosphorus and nitrogen.


#2: State agencies often deny CAFO permit requests due to concern over environmental impacts. 

State agencies do often deny a CAFO permit – at least initially – but not usually out of concern over harm to the community or environment. Permits are often denied due to paperwork mistakes, but in many instances, agency staff will then assist the CAFO operator to correct the mistakes and reapply, and at which point their permit is approved. Permits are also typically renewed without significant changes, even when there is evidence of environmental harm.


#3: Communities and local governments have a say in whether or not a CAFO can be built in their area. 

In some states, communities still have local control over CAFO siting, so that the local or county health or zoning agency can set its own rules on where CAFOs are sited. The livestock industry has directly targeted these laws, working to put siting authority in the hands of the state

Without local control laws, members of a rural community often do not know that a CAFO is proposed in their region until construction begins. Even when the state requires a public notice and comment period, the impacted communities may miss the comment period. Another hurdle for community members comes because their comments about a proposed CAFO may address the likely cumulative impact of the new operation on top of the impact of existing facilities, while permitting agencies are regularly only allowed to look at the isolated impacts of the operation in question. 


#4: CAFOs are held accountable when they do violate regulations or have an impact on local communities.  

All 50 states have a version of a right to farm (RTF) law, originally passed to protect existing farmers from nuisance complaints and legal action from neighbors who may have recently moved to a farming area and were not used to the sounds and smells of a working farm. But as CAFOs have grown dramatically in size and number, the livestock industry uses RTF laws to protect new or expanding CAFOs from opposition by existing neighbors and small farmers. RTF laws often include provisions that protect CAFOs from liability for any damage they cause to the environment or public health, shielding the owners or investors from lawsuits and making it difficult for impacted communities to hold them accountable.


The result of these outdated and inadequate state and federal structures for CAFO permitting is a legal and regulatory framework that prioritizes the interests of industrial agriculture over the health and well-being of communities and the environment. To ensure CAFO operators and investors are held accountable for their environmental impacts and impacted communities have the legal tools they need to seek redress, state policymakers can propose updated CAFO legislation and address agency enforcement. The SiX Blueprint for Rural Policy Action in the States can help you learn more and get started. 

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