The U.S. Environmental Protection Agency (EPA) recently announced that it was withdrawing a proposed rule that would have required Concentrated Animal Feeding Operations (CAFOs) to report basic information to the agency. CAFOs are livestock facilities or farms that confine large numbers of animals and do not grow crops on the land. The concentrated waste from these operations can contaminate groundwater supplies as it sinks into the earth. The rule in question would have required CAFO owners to provide information on operations that could result in water pollution. By dropping the rule, EPA appears to have succumbed to pressure from the agricultural community to limit transparency and citizens' rights to a healthy water supply.

Because of the risk of contamination, CAFOs may be regulated under the Clean Water Act (CWA). The livestock industry has contested efforts by the EPA to monitor its activities under the act – for example, the agency's use of aerial surveillance to identify instances where livestock waste is being illegally discharged into rivers, streams, and lakes.

Manure and wastewater from large-scale concentrated animal operations may contain pollutants like nitrogen and phosphorus, pathogens, heavy metals, antibiotics, and ammonia that can contaminate food, water, and other environmental resources. On Oct. 21, 2011, EPA published a proposed disclosure rule as part of a settlement agreement reached with environmental groups.

Section 308 of the CWA allows EPA to collect records and information from point sources of pollution, such as CAFOs, and requires the agency to make non-confidential information available to the public. The proposed EPA rule would have collected five items of information from CAFOs: contact information, location, the type and number of animals confined at the CAFO, whether the CAFO is covered by a pollutant discharge permit, and the total number of acres on which the owner spreads manure. The agency had proposed two options for collecting this information: it would have gathered data either from all operations or from a select group of CAFOs operating in watersheds where concerns about water quality had been raised.

Opponents of the rule argued that the information could be collected through means other than a rulemaking under section 308 and raised privacy and bioterrorism concerns about making the information publicly available. The National Pork Producers Council and dozens of other agriculture industry associations wrote in their comments on the rule that making CAFO location information publicly available would lead to trespass and property damage against CAFOs "by animal rights activists as well as other persons."

Environmental and sustainable agriculture groups, however, view the withdrawal of the rule as EPA’s latest failure to fully implement clean water protections and provide the public with information about CAFO pollution. The National Sustainable Agriculture Coalition (NSAC) stated that public access to the information reported under section 308 "could give communities and rural residents better information about CAFOs as a source of water pollution, allowing them to take actions to protect water resources under the citizen suit provisions of the Clean Water Act."

As NSAC noted, the lack of information about CAFOs has impaired EPA’s ability to monitor and regulate those sources of water pollution. A 2008 report by the Government Accountability Office (GAO) found that "EPA does not have comprehensive, accurate information on the number of permitted CAFOs nationwide." "As a result," the report concluded, "EPA does not have the information it needs to effectively regulate these CAFOs."

Avoiding Duplication or Dodging Transparency?

EPA’s explanation for withdrawing the rule cited comments from CAFOs maintaining that they have already provided much of the information to other state and federal agencies. EPA said that it would work with states and other agencies to obtain the information requested instead of requiring CAFOs to submit the information to the EPA. However, the 2008 GAO report found that "no federal agency collects consistent, reliable data on CAFOs.” GAO also interviewed state officials to determine the accuracy and reliability of the CAFO data EPA collected from the states between 2003 and 2008, but found that the data was not reliable and could not be used to identify trends in permitted CAFOs.

If the industry has its way, any information that is found will remain a mystery to the public. Industry comments warned that a central repository of information would threaten security and privacy and noted that if EPA obtains the information without using section 308, it will not have to make the information public. Agriculture operations and policymakers are also vocally protesting EPA’s use of aerial surveillance to check for illegal activity by cattle ranchers and other livestock operations. Flying over land to monitor farm operations is an extremely efficient way for EPA to identify potential polluters. The agency does not target individual farms but uses the surveillance to identify areas where potential violations may occur and follows up with on-site inspections.

Opponents charge that the surveillance is intrusive and unnecessary. Last week, Rep. Shelley Moore Capito (R-WV) and other members of the House introduced a bill to prevent the EPA from using aerial or any other overhead surveillance to enforce the Clean Water Act without written consent or a court order.

Although some regulated operations contend they are not trying to conceal wrongdoing, it's hard to understand why they would object to the flights. If no violations were found, inspection visits would be less likely. In fact, EPA told the Omaha World-Herald that the flyovers have saved money because more than 90 percent of the operations viewed by air have been in compliance, eliminating the need for on-site inspections. All this serves to reinforce that the industry has a penchant for secrecy, which could cause the public to wonder: what are they afraid of disclosing?

Image in teaser by flickr user Wisconsin Department of Natural Resources, used under a Creative Commons license.