Nonprofit challenge to state CAFO permitting clears another hurdle
An environmental advocacy group’s attempt to make DNREC change how it regulates animal feeding operations is moving forward.
National nonprofit Food & Water Watch claims Delaware’s general CAFO permit does not comply with the Clean Water Act, because it does not require animal feeding operations to monitor whether they discharge waste into nearby waterways.
The Delaware Supreme Court earlier this week rejected DNREC's effort to halt the case. It backed a lower court’s decision allowing Food & Water Watch's 2016 appeal of the CAFO permit to go forward.
“What the Supreme Court was saying earlier this week is that we agree with the Superior Court, no interlocutory appeal [by DNREC] right now … We implement what the Superior Court said—Food & Water Watch has standing, and it now goes back to the Environmental Appeals Board for the merits of the appeal,” said Widener Law professor Kenneth Kristl, who is representing the nonprofit.
Tarah Heinzen, staff attorney at Food & Water Watch, says DNREC does not require CAFOs, or confined animal feeding operations, to monitor whether discharge from their sites enter nearby waterways. “There isn’t an alternative in place providing the same protections,” she says.
Michele Merkel of Food & Water Watch says the goal of the 2016 appeal is “to strengthen the water quality monitoring aspects of the permit, so that the public has information about what pollution is coming off these facilities and the state does as well.”
Heinzen says discharge from CAFOs can lead to excess nitrogen and phosphorous, as well as bacteria such as E. coli, in waterways.
“We know that the poultry industry in Delaware as well as other states in the region is contributing a lot of nutrients and other runoff into downstream waterways," Heizen adds. "But again the lack of monitoring makes it very hard to know exactly what facilities are discharging what."
Merkel says there is no one CAFO in Delaware that Food & Water Watch thinks is causing the problem.
“It's a systemic problem,” she said. “A lot of these operations that are run very similarly in places where there’s no place to put the manure safely are contributing to water quality impairment, to adverse health impacts in communities. So we went after the general permit, instead going site by site. It’s a little easier way to get at systemic change. ”
Heinzen adds that the problem is not unique to Delaware. She says that discharge monitoring is “pretty much universal throughout Clean Water Act permitting with every other industry that’s regulated in the nation, except for factory farms. ”
Food & Water Watch has also been involved in litigation surrounding a consent decree between DNREC and Millsboro-based chicken processor Mountaire Farms.
“In terms of poultry production, [we] are seeing pollution at every stage of production,” said Merkel. “Whether you’re talking about the animal feeding facilities themselves that are raising the chickens or you’re looking at the infrastructure intended to slaughter or process the chickens which is the Mountaire facility.”
Merkel adds that the appeal of the general CAFO permit would not apply to Mountaire.
“It’s an important part of this broader narrative of poultry production. Every aspect of it seems to be under-regulated and harming communities.”
A DNREC spokesperson responded to this week’s decision saying, “The State Supreme Court did not determine that Food & Water Watch has standing.”
Kristl says that DNREC can still contest the nonprofit’s standing after the Environmental Appeals Board has ruled on the merits of its appeal.