Environmental groups sue EPA over water pollution from large livestock farms

BLOOMING PRAIRIE, Minn. — Sonja Trom Eayrs walked down the gravel driveway of the family farm, surrounded by soybeans and corn almost ready for picking. She pointed in every direction. There are 12 large hog farms in a 3-mile radius of their Dodge County home, she said, and the fall is when growers typically spread the manure.

The smell is bad enough, she said — it once made her father vomit — but all the manure from growing livestock operations is overloading the county, polluting groundwater and the water running to the start of the Cedar River, she said.

"We're supposed to just take it. Well, we're not going to take it anymore," Trom Eayrs said.

A divorce lawyer by day, Trom Eayrs is a member of Dodge County Concerned Citizens, one of three Minnesota nonprofits among the 13 groups that sued the Environmental Protection Agency (EPA) last Monday in the Ninth Circuit Court of Appeals in San Francisco. They are pushing the EPA to reform national water pollution permits for the large livestock operations, saying the waste from the megafarms is contributing to a national clean-water crisis.

The other Minnesota-based petitioners are the Land Stewardship Project and Institute for Agriculture and Trade Policy.

The lawsuit dives into tensions ripe across farm country. Farmers running livestock operations say they face unrelenting economic pressures to scale up and already deal with burdensome overregulation as they produce lean, protein-rich meat for the dinner tables of Americans and consumers abroad.

"There are long-standing, well-designed regulatory systems currently in place that protect the environment while providing an opportunity to provide nutritious, affordable food to consumers," said Jill Resler, CEO of the Minnesota Pork Board. "For Minnesota's pig farmers, protecting the environment, including water quality, is critical to the success and vitality of generational family farms."

Hog farmers, many of whom were in D.C. this week for meetings with Congress, have recoiled at other high-profile litigation related to their custody of animals.

Earlier this year, the U.S. Supreme Court upheld a California law requiring pork sold in restaurants and grocery stores to have been raised in pens where they can move more freely than they currently do in many barns.

"This situation in California is setting a standard that, as a producer, I'm in a position to de-populate a farm and remodel a farm," said Terry Wolters, a hog farmer from Pipestone, Minn., and past president of the National Pork Producers Council, during a media roundtable this week. "I don't think California should tell me how to raise pigs."

Yearslong fight

The new water permit action stems from 2017, when the environmental advocates petitioned the EPA to tighten regulation of farm water pollution under the Clean Water Act, based on the growing number of large livestock operations around the country.

They asked the EPA to make several changes to such huge farms, called concentrated animal feeding operations, or CAFOs: require farmers to monitor for pollutants such as nitrogen, phosphorus and total suspended solids as well as narrow what they consider to be an overly broad exemption for agricultural stormwater. As long as the CAFOs apply manure, litter and process wastewater to the land under a nutrient management plan, then the discharges associated with rain or snow are exempt from permitting.

Waste from feedlots, spread to fertilize crops, holds a host of pollutants, such as nitrogen and phosphorous, that run into the Mississippi River and contribute to the dead zone in the Gulf of Mexico. Other contaminants can include heavy metals, antibiotics, pesticides and bacteria. When the Isaak Walton League took nearly 500 water samples in the Cedar River watershed, including Dodge County, it found 70% had E. coli levels exceeding human health standards for contact.

The groups waited years for an EPA response to the 2017 petition, then sued for unreasonable delay. In August, six years after the petition was filed, the EPA rejected it. Now the groups have asked the court to disallow the EPA's denial.

Emily Miller, a lawyer at Washington, D.C.-based Food & Water Watch that is co-representing the groups, called the EPA's response inadequate. It boils down to more delay and inaction, she said. Communities need better protections.

"It's really devastating waterways and drinking water and people's recreational resources," Miller said. "Enough is enough."

The EPA and the Minnesota Pollution Control Agency, which has authority from the EPA and handles water pollution permits and manure regulation in the state, said they can't comment on ongoing litigation.

If the lawsuit leads to the EPA making changes, Minnesota will modify its programs accordingly, the state agency said in a statement. The state's feedlot permitting program "is highly effective in protecting our waterways by limiting runoff from feedlot operations around the state," it said.

But state enforcement, too, has been targeted. In a separate action in April, environmental advocates asked the EPA to take emergency action under the Safe Drinking Water Act, saying state and local regulation hasn't worked to stop dangerous levels of nitrate contaminating the groundwater in eight southeast Minnesota counties — Dodge, Goodhue, Fillmore, Mower, Olmsted, Wabasha, Winona and Houston. It is creating an "imminent and substantial endangerment" to human health, they said.

As for the EPA, in a 12-page letter in August denying the 2017 petition, EPA Assistant Administrator Radhika Fox acknowledged that pollution from large livestock operations "can be a significant source of pollutants" but rejected each of the requested changes.

EPA launching own study

Instead, she said, the EPA is launching a major study and evaluation of its federal water- pollution permit regulatory program for large livestock operations. It's in the process of creating an Animal Agriculture and Water Quality Subcommittee to get input from farmers, community groups and state agencies about how to reduce the pollution. The agency is enthusiastic about finding solutions, Fox wrote.

Bonnie Keeler, co-director of the University of Minnesota's Center for Science, Technology & Environmental Policy, said she's sympathetic to the EPA's response. It doesn't want to waste time creating rules that won't pass legal challenges, she said.

"Personally, I'd like to see more action on CAFOs at the state and municipal level," she said. "I think efforts are better placed at influencing local zoning and state water quality standards, as well as increasing funding and capacity for monitoring, and enforcement."

Minnesota is home now to 1,583 CAFOs holding about 42 million animals, about 1,112 of that have federal water pollution permits, according to the Minnesota Pollution Control Agency's latest count. They are a fraction of the more than 22,200 registered feedlots around the state that produce an estimated 50 million tons of manure each year.

A 2020 study by the Washington D.C.-based nonprofit Environmental Working Group, found that the double whammy of manure and synthetic fertilizers spread on fields are overloading areas in the state.

Trom Eayrs said she thinks there's just limited oversight of the manure management: "As my dad would say, "They have to get rid of the damn stuff."