New CPR Report Assesses the CAFO and Animal Agriculture Programs in Maryland, Pennsylvania

Today CPR releases Manure in the Bay: A Report on Industrial Animal Agriculture in Maryland and Pennsylvania. The paper provides a snapshot of the federal Concentrated Animal Feeding Operations (CAFO) permit program under the Clean Water Act (CWA) and how these states are implementing this program.  The report provides recommendations for strengthening these programs to curb pollution to the Chesapeake Bay and provides a brief glimpse at the broader animal agricultural and manure management programs work in these states. The report was written by CPR President Rena Steinzor and me. 

Congress specifically identified CAFOs as sources of pollution to be regulated four decades ago, but regulations at the federal and state levels have only begun to be developed and seriously implemented.  In the meantime, the dramatic rise in the number of animals in fewer and fewer facilities has led to a dramatic increase in the amount of manure and wastewater generated by these industrial operations.  Animal manure and process wastewater contain nutrients such as nitrogen, phosphorus, and potassium; pathogens; antibiotics; and other pollutants such as cleaning fluids, heavy metals, synthetic fertilizers, and pesticides.  When these substances reach local waterways without being treated, myriad human health and ecosystem impacts are inevitable.  Stronger regulations are badly needed.

The delays in regulating CAFOs have had devastating consequences for water quality, but progress is finally in the works. In October, EPA proposed and opened for public comment a rule to collect information from large animal feeding operations to help determine which operations constitute CAFOs. EPA is slated to propose another rule this year aimed at CAFOs and animal feeding operations in the Chesapeake Bay (EPA said it was planning to release the rule in May, and it’s under a court deadline to do so this month, but regular readers know that means far less than it ought to).  This latter rule is expected to expand CAFO permit coverage to operations that are not currently subject to federal requirements.  Also pending on the horizon is a revised CAFO rule, which will clarify which operations must apply for pollution discharge permits.  

The report recommends, among other things, two ways environmental authorities could use tools in the CWA that they have generally not used thus far to protect our waters:

• Designation Authority.  EPA and states with NPDES permitting authority should use their CWA authority to designate as CAFOs those small farms that do not meet the threshold requirements of large and medium CAFOs but nonetheless are “significant contributors” of water pollution.
• Presumption of discharge.  EPA should establish a regulatory presumption that certain animal feeding operations discharge because of their size or other factors.  A federal agency can establish a regulatory presumption if there is “a sound and rational connection between the proved and inferred facts.” Already Wisconsin has a state law that makes this presumption, and EPA could follow suit at the federal level.  Establishing this presumption would mean that these operations would be required to apply for a CAFO permit.

Maryland’s Program

The Maryland Department of Environment administers both the federal CAFO permit as well as a state permit for Maryland Animal Feeding Operations (MAFOs).  As of November 7, 2011, MDE had received 597 Notices of Intent for CAFO and MAFO permit coverage.  Notably, prior to the start of the CAFO program, Maryland had merely 10 facilities registered and permitted as CAFOs (see MDE’s 2010 Enforcement and Compliance Report, page 88).  To date, however, MDE has a permit backlog because of delays in both writing components of the permit and registering the permit itself.  Nevertheless, the CPR report recommends:

• MDE should retain the broad scope of permit coverage for CAFOs and MAFOs.  Maryland regulations require all large and medium animal feeding operations to obtain either a CAFO or a MAFO permit, which are based on regulations that are more protective than the federal standards.  The CWA explicitly allows states to be more protective of their waters.  MDE should retain this broad permit coverage in the face of any potential opposition.
• MDE should immediately begin to assess annual permit fees for CAFOs, both those that have permits and those with pending permits.  The current annual permit fees range from $120 to $1,200 per year, depending on the size of the operation.  Although MDE has waived these fees during the start-up phase of its program, the agency should begin to assess the permit and annual fees and to ensure that those fees reflect the anticipated cost of administering the permit.
• The Maryland Department of Agriculture (MDA) should ensure that non-CAFO and non-MAFO animal operations comply with the nutrient management plans required under the Water Quality Improvement Act.  The Maryland General Assembly should assist by raising the penalty maxima that MDA can assess in response to a violation of the WQIA.  If MDA fails to ensure compliance with the Act, the General Assembly should consider expanding the enforcement responsibilities of MDE to these operations.

Pennsylvania’s Program

In Pennsylvania, animal agriculture operations fall into three broad categories: Concentrated Animal Feeding Operations (CAFOs), Concentrated Animal Operations (CAOs), and operations that do not meet the definition or the threshold sizes for CAFOs or CAOs.  The state has around 360 CAFOs, the around 1,200 CAOs, and roughly 30,000 other animal agricultural operations.  Roughly half the manure generated in Pennsylvania comes from CAFOs and CAOs, and the remaining half comes from the smaller, lower density animal agriculture operations, the Pennsylvania State Council of Farm Organizations says.

To protect more waterways in Pennsylvania from nutrient pollution, the report recommends that the Pennsylvania Department of Environment should:

• Take meaningful, targeted enforcement actions that have a deterrent effect rather than relying on cooperative approaches.  Deterrence-based enforcement is based on the theory that regulated facilities, such as CAFOs, weigh the costs and benefits of complying with NPDES requirements or other regulations.  If a CAFO will save $10,000 by avoiding compliance and illegally discharging animal waste into the Susquehanna River but also knows that it will face stiff penalties that far exceed $10,000 for this discharge, the CAFO will be dissuaded from violating environmental laws under the deterrence-based enforcement model.
• Increase transparency by publishing an annual enforcement and compliance report.  This report would promote accountability by demonstrating, on an annual basis, DEP’s enforcement and compliance effort and would allow watchdog groups to track trends and work with DEP to improve overall compliance with CAFO NPDES permit requirements. 

The report is available here.

The Center for Progressive Reform would like to thank the Keith Campbell Foundation for its generous support of this project.