— OPINION —
Editor’s note: This is part of a series of papers written by students in the Food Safety Litigation class taught by Professors Bill Marler and Denis Stearns in the LL.M. Program in Agricultural and Food Law at the University of Arkansas School of Law.
By Brittany Rowe
On March 29, 2023, the Center for Food Safety filed a lawsuit against Wood Farms in the U. S. District Court for the Northern District of New York for violating the Clean Water Act for polluting the St. Lawrence River. The lawsuit alleges that Wood Farms, a mega-dairy located in Clayton, New York that confines over 2,200 cows, has repeatedly discharged pollutants including solid manure and liquid manure, process wastewater, and related operational waste products, into waters of the United States in violation of its clean water permit for a period of five years and sixty days. Plaintiff seeks declaratory relief, injunctive relief, and civil penalties.
Plaintiff Center for Food Safety is a nonprofit public interest and environmental advocacy organization with over 830,000 members nationwide whose mission is to “empower people, support farmers, and protect the earth from the harmful impacts of industrial agriculture.” The Center for Food Safety brought this civil action against Wood Farms pursuant to the citizen suit provision of the Clean Water Act . The Clean Water Act requires facilities that intend to discharge pollutants into navigable waters obtain a National Pollutant Discharge Elimination System (NPDES) permit. One such facility that requires an NPDES permit is a concentrated animal feeding operation, or CAFO. A large CAFO is defined as an animal feeding operation where “animals (other than aquatic animals) have been, are or will be stabled or confined and fed or maintained for a total of 45 days or more in any 12-month period, and . . . crops, vegetation, forage growth, or post-harvest residues are not sustained in the normal growing season over any portion of the lot or facility” and confines a specific number of animals set out under 40 CFR § 122.23(b)(4). Wood Dairy Farm falls under the definition of a large CAFO because it has over 700 mature dairy cows. Once a facility is regulated by a NPDES permit, the facility must comply with all terms and conditions of the permit. If a facility fails to comply with the permit, the Clean Water Act permits citizens to file suit for violation of the Act.
Wood Farms generates solid and liquid manure which it stores in lagoons, which the complaint alleges leak into the soil and discharge into the St. Lawrence River and associated tributaries, including Wheeler Creek, Lake Ontario, Kents Creek, Mud Bay, and adjacent tributaries, ditches, and wetlands (Wood Farms Discharge Waters) and load onto trucks for land application. The complaint alleges that Wood Farms has discharged pollutants in violation of the Clean Water Act in several ways. First, Wood Farms has discharged wastewater into surface waters of the State, which are excluded from coverage under its NPDES permit. Second, Wood Farms has discharged manure to surface waters of the State, which violates its NPDES permit. Third, Wood Farms has discharged “manure or process wastewater in saturated conditions including applications made on saturated soil (either fluid-saturated or frozen-saturated soil conditions) or applications made at a rate that creates or causes the soil to become saturated a the time of that application,” which violates its NPDES permit. Fourth, Wood Farms has discharged manure or process wastewater to land application areas during winter months in a way that does not conform with the 2015 Cornell Guide or NRCS NY590 Standard, a nonconformity that violate its NPDES permit. The pollutants contained in the discharged liquid and solid animal wastes include fecal coliform and E. coli, other pathogens, nitrogen, phosphorus, and suspended solids. These pollutants harm water quality and pose a public health risk for people who use the Wood Farms Discharge Waters and degrade the surrounding environment.
The complaint includes photographs taken in January 2023 at Wheeler Creek near where it joins the St. Lawrence River that show significant foam formation from phosphorus and other pollutants Plaintiffs allege came from Wood Farms’ manure or process water discharges. Similar photographs were taken in February 2019 and March 2014. Wood Farms was cited back in 2014 for violations related to an unpermitted overflow pipe and again in 2008 for process wastewater from Wood Farms to Wheeler Creek. Thus, the complaint claims 1) Wood Farms discharged pollutants in violation of its NPDES permit, and 2) Wood Farms failed to comply with the reporting requirements of its NPDES permit, both of which violate the Clean Water Act.
Mega-dairies, large-scale commercial dairy operations that are a type of CAFO, generate large quantities of manure that carry nutrients and pathogens, leading to water pollution and public health risks. CAFOs are a leading source of water pollution and a point source that requires a permit under the Clean Water Act. Historically, however, only a small percentage of CAFOs are regulated and the Clean Water Act permits fail to adequately protect waterways from the pollution generated by CAFOs.
This case is part of a larger effort by nonprofit public interest organizations to hold CAFOs accountable for the pollution they create and close loopholes that allow CAFOs to skirt accountability. In January, the EPA responded to a 2021 Food and Water Watch lawsuit that urged the EPA to scrutinize water pollution stemming from CAFOs. The EPA announced that it would undertake several new studies to collect and analyze data on factory farm water pollution to determine what steps it needs to take to strengthen the Clean Water Act. Specifically, the EPA intends to “undertake a detailed study of the Concentrated Animal Feeding Operations (CAFOs) Category (40 CFR part 412), which will focus on collecting further information to enable the Agency to make an informed, reasoned decision on whether to undertaking rulemaking to revise the ELG for CAFOs.” This is the first time in fifteen years that the EPA will revisit the regulation of water pollution from factory farms.
Soon after the Wood Farms case was filed, the EPA came to an agreement with the Center for Food Safety, Food & Water Watch, and nine other organizations related to the Agency’s unreasonable delay in responding to a 2017 petition to overhaul water pollution regulation for CAFOs. The petition recommendations included: 1) revising the agricultural stormwater exemption; 2) establishing a presumption that CAFOs cause pollution and require them to obtain permits; 3) improving discharge monitoring; 4) prohibiting practices that harm water quality; and 5) strengthening effluent limitation guidelines. After the EPA failed to respond to the petition, Food & Water Watch filed a lawsuit in the Ninth Circuit Court of Appeals in October 2022. In April 2023, the EPA agreed to answer the petition by August 15, 2023, which could lead to tighter water pollution standards for CAFOs in the United States.
About the author: Brittany Rowe is former Judicial Pool Clerk, Lane County Circuit Court, Oregon; J.D., Lewis and Clark Law School, Animal Law Certificate; Co-Editor in Chief, Animal Law Review; Author, 2020 Foreign and International Legislative Review, 27 ANIMAL L. REV. 175 (2021); B.S., Sociology and Anthropology, West Virginia University.