In my first post some time ago, I described Concentrated/Confined Animal Feeding Operations (CAFOs). In this post, I will explain the relationship of the Clean Water Act of 1972 (CWA), the National Pollutant Discharge Elimination System (NPDES), the Environmental Proctection agency (EPA), and their connection with Indiana agency officials’ failure to protect our land, water, and air.
Congress enacted the Clean Water Act (CWA) in1972 in order to ensure to the fullest extent possible that the Nation’s waters were protected against physical, chemical, and biological damage. Prior to 1972, protection of the Nation’s waters was based upon water quality standards promulgated and implemented by each state legislature.
The Clean Water Act of 1972 established the National Pollutant Discharge Elimination System (NPDES) which prohibited discharge of any pollutant from a point source to a water of the United States. The permit system is the heart of the Clean Water Act and requires any entity intending to discharge a pollutant into a water of the United States to apply for and receive a permit to discharge the waste substance.
Three terms are key to understanding the relationship between the Act and how it applies to CAFOs. First, “point source” is defined in the Act as “Any discernable, confined and discrete conveyance, including ….. concentrated animal feeding operation.”
Second, “waters of the United States” is interpreted by the EPA to include “virtually all surface waters in which the United States has an interest, including navigable waters, interstate waters and their tributaries, and waters that were in the past and may in the future be used in interstate commerce.”
Third, “pollutant” is defined as “dredged spoil, solid waste, incinerator residue, sewage, garbage, seage sludge, minitions, chemical wastes, biological materials, radioactive materials, heat, wrecked or discarded equipment, rock, sand, cellar dirt, and industrial, municipal, and agricultural waste discharged into water.”
These three terms are critical in understanding the harm that CAFOs inflict upon their surrounding environment. All three terms apply to CAFOs in that a CAFO is a “point source” (discrete conveyance) discharging a “pollutant” (manure) into a “water of the United States” (ditches, creeks, streams, and rivers). The point to remember is that a discharge need not occur directly into a water of the United States; it may occur by natural processes such as runoff.
The NPDES permit program (the heart of the Act) is established in one of two ways: either the EPA can issue NPDES permits or the states may apply for and receive EPA approval to administer their own permit programs. If a state chooses to establish its own permit program, the EPA still remains involved at a high level. The EPA continues to review state water quality standards, retains authority to object to issuance of particular permits, monitors state programs for compliance, and enforces terms of individual NPDES permits if the state fails to do so. A state which sets up an EPA approved NPDES program may issue either general permits or inidvidual permits. A general permit covers a category of point sources with similar characteristics while an individual permit focuses on a specific operation and its pollution issues.
Indiana is one of those states which chose to establish its own permit program. In 1975, the EPA approved Indiana’s proposed NPDES program, and, in 1991, the EPA approved Indiana’s program for issuance and administration of general NPDES permits. Although Indiana was under an obligation to administer its NPDES program in accordance with federal statutes and regulations, the State chose to deal with CAFOs through a system separate from its NPDES permitting program. Indiana legislation was enacted in 1971 to address construction and operation of CAFOs. Known as the Confined Feeding Control Act, the legislation established guidelines for approval of confined animal operations.
However, prior to 2001, Indiana did not require any confined feeding operations to apply for or obtain NPDES permits. The Indiana Department of Environmental Management (IDEM) not only failed to issue permits but also did not inspect CAFOs until 1999. Prior to 1999, the State never pursued an enforcement action against any CAFO. The first indivudual permit for a CAFO in Indiana was set for public notice in 2002, 31 years after the Clean Water Act was enacted and 11 years after EPA approval of the State’s NPDES permit program. Up to that point in time, Indiana’s program had never been in compliance with the federal CAFO requirements. In a September, 2002, court decision, Save the Valley, Inc. v. United States Environmental Protection Agency, 223 F. Supp. 2d 997 (S.D. Ind. 2002), the federal court ordered the Indiana Department of Environmental Management to bring its NPDES permit program into compliance with the Clean Water Act’s NPDES permitting process within 120 days of the date of the order. In other words, IDEM had until January 17, 2003, to get its act together.
The third installment will explain how the Indiana Water Pollution Control Board used IDEM’s failure to institute the proper permitting process to suspend compliance with required Soil Conservation Practice Plans, thus triggering an explosion of CAFO permit filings in 2006.