They’ve many years invested and their latest legal arguments ran 198 pages, but Food and Water Watch and their many allies wanted something pretty simple.

They wanted the U.S. Court of Appeals for the Ninth Circuit to grant a writ of mandamus compelling the U.S. Environmental Protection Agency to answer their petition and retain jurisdiction to ensure that EPA’s “response is complete.”

It was five years ago that Food and Water Watch petitioned EPA, asking for tougher water quality standards for “concentrated animal feeding operations” or CAFOs. Federal agencies are required to respond to such petitions “within a reasonable time,” but Food & Water Watch ran out of patience and went to court for a little guidance.

By around Halloween, EPA must respond to Food and Water Watch’s opening arguments, not exactly the 2017 petition. EPA will be forced to provide a substantive response to the 2017 petition’s rationale. The goal of the petitioners is to persuade EPA to propose any sort of rulemaking, which their Legal Director Tarach Heinzen calls a “big if.” That would allow groups and individuals to weigh in.

CAFOs under The Clean Water Act are recognized as “point sources” of water pollution. Food and Water Watch wants to restrict the discharges from them into rivers and streams through a more compelling regulatory system.

The others allied with Food and Water Watch include the Center for Food Safety; Dakota Rural Action; Dodge County Concerned Citizens; Environmental Integrity Project; Helping Others Maintain Environmental Standards; Institute for Agriculture and Trade Policy; Iowa Citizens for Community Improvement; Kewaunee Cares; Midwest Environmental Advocates; and the North Carolina Environmental Justice Network.

In their 2017 petition, the allied groups claimed to have provided EPA with a roadmap for closing loopholes that let CAFOs avoid the kind of regulation that a stronger permit system would enforce.

In its court filings, Food and Water Watch says: More than a decade ago, EPA conceded that “despite more than 35 years of regulating CAFOs, reports of water quality impacts from large animal feeding operations persist.”

This regulatory failure can be attributed to two critical flaws in the Agency’s CAFO program: (1) the majority of CAFOs discharge, yet evade permit coverage; and (2) even CAFOs that do have NPDES permits are subject to requirements that do not effectively control their discharges.

It adds that “EPA acknowledges that its CAFO regulations are inadequate. The agency admits that “[m]any CAFOs are not regulated and continue to discharge without NPDES permits” in violation of the Clean Water Act, because its “regulations contain definitions, thresholds, and limitations that make it difficult to compel permit coverage.” (EPA Environmental Justice Report.) 

The agency further acknowledges that “while many waters are affected by pollutants from CAFOs, many CAFOs often claim that they do not discharge, and EPA and state permitting agencies lack the resources to regularly inspect these facilities to assess these claims.” 

” Indeed, although EPA estimates that 75 percent of all CAFOs discharge as a result of their standard operational profiles, only 30 percent of even the largest CAFOs are currently permitted,” F&WW’s filing says.