EPA Responds to Petition for Clean Water Act Revisions

The U.S. Environmental Protection Agency (EPA) recently published a letter in response to a petition filed by several environmental groups requesting that EPA revise Clean Water Act (CWA) regulations for concentrated animal feeding operations (CAFOs).

Key Considerations

EPA declined the petitioners' request to revise CWA regulations. Instead, EPA announced it will undertake a detailed study of the CAFO Effluent Limitations and Guidelines (ELGs). EPA will also establish an Animal Agriculture and Water Quality (AAWQ) subcommittee under the existing Farm, Ranch and Rural Communities Federal Advisory Committee to evaluate the most effective and efficient ways to reduce pollutants generated from CAFOs.

The following are important points to consider regarding EPA's response to the petition and the agency's planned next steps:

• EPA will publish a Federal Register notice in the fall requesting nominations for the AAWQ subcommittee, and the EPA Administrator will appoint 10 to 20 subcommittee members.
• EPA will host six to nine public subcommittee meetings in the next 12 to 18 months.
• Together with the detailed study of CAFO ELGs, the subcommittee's work will help EPA determine whether it can address water quality concerns related to CAFOs through improvements to implementation, enforcement and other non-regulatory initiatives, or whether regulatory revisions are appropriate.

EPA intends that the subcommittee membership "will include a balanced and diverse representation from research institutions, local government, States and Tribes, environmental and environmental justice groups, and agricultural industry across the geographic regions of the United States." It will be critical for animal agriculture industry stakeholders to secure positions on this subcommittee to ensure their views are heard and their efforts to comply with CWA requirements, as appropriate, are acknowledged.

EPA's stated preference for enhanced enforcement of existing regulations over the proposal of new regulations is important for two reasons. First, the agency is acknowledging the resource and time constraints of the rulemaking process, which can take years. Second, it indicates that the agency may seek to use the study and subcommittee to justify "improvements to implementation, enforcement and other non-regulatory initiatives" which will be easier to carry out than rulemaking and will not be subject to the notice and comment period integral to the rulemaking process.

Holland & Knight Can Help

Holland & Knight is closely monitoring developments regarding EPA's plans for the CAFO ELG study and request for subcommittee nominations. Entities involved in animal agriculture production and subject to CAFO requirements under the CWA should ensure that their interests are taken into account as this process moves forward. For more information or questions about the specific impact on your organization, please contact the author.

Information contained in this alert is for the general education and knowledge of our readers. It is not designed to be, and should not be used as, the sole source of information when analyzing and resolving a legal problem, and it should not be substituted for legal advice, which relies on a specific factual analysis. Moreover, the laws of each jurisdiction are different and are constantly changing. This information is not intended to create, and receipt of it does not constitute, an attorney-client relationship. If you have specific questions regarding a particular fact situation, we urge you to consult the authors of this publication, your Holland & Knight representative or other competent legal counsel.