The EPA’s Proposed CAFO Information Disclosure Rules and Their Potential to Improve Water Quality

Abstract

This Article concerns an ongoing struggle within the Environmental Protection Agency (EPA) to enact a rule pursuant to section 308 of the Clean Water Act. (CWA) requiring Concentrated Animal Feeding Operations, or CAFOs, to disclose basic information, including: their locations; the number and type of livestock they produce; their manner of waste disposal; their management practices; and the identities of their owners or operators. That a single rulemaking would deserve such attention should not be surprising, because this one rule enables the agency to address a whole range of urgent policy problems; the EPA’s Endangerment and Cause or Contribute Findings for Greenhouse Gases Under Section 202(a) of the Clean Air Act finding on remand from Massachusetts v. EPA provides just one example. While a CAFO reporting rule may not seem as momentous as applying the Clean Air Act to climate change, one cannot underestimate the potential implications for the EPA’s ability to regulate an industry that, together with other forms of agricultural production, is responsible *49 for much of the nation’s water pollution. A rule grounded in section 308 and related provisions of the Clean Water Act could provide sorely lacking data on the proliferating American CAFO industry, as well as a means for the EPA to negotiate changes to facilities’ current operation methods--methods that can lead to illegal discharges of waste into the nation’s waters. A well-designed information-disclosure rule would have the potential to achieve much of what the EPA sought to accomplish in its two previously rejected CAFO-permitting programs under section 402 of the CWA. Those programs would have provided the agency with information and required CAFOs to obtain permits prior to making any discharges. An effective information disclosure rule could further the purpose Congress articulated for the Clean Water Act: to “restore and maintain the chemical, biological, and physical integrity of the Nation’s waters.