Colorado violated state and federal law by failing to monitor water quality from large operations raising hogs, poultry, and dairy or feeder cattle, a state administrative law judge ruled in a case brought by environmental groups.
The state health department’s Water Quality Control Division has been approving the so-called “factory farms” under a general operating permit that applies to 100 or more facilities. But the federal Clean Water Act demands more diligent monitoring of water discharges to prove the permits are working, the judge agreed.
The state’s general permit for concentrated animal operations requires “representative monitoring to assure compliance,” administrative judge Matthew Norwood wrote in a summary judgment against the state. And Colorado’s version of the general permit currently lacks the monitoring, Norwood ruled on May 16.
The plaintiffs, environmental nonprofits Center for Biological Diversity and Food and Water Watch, said the decision could help Colorado rivers.
“Factory farms are a dangerous source of water pollution in Colorado, partly because the state’s lenient permitting terms don’t require proof of compliance,” said Hannah Connor, an attorney at the Center for Biological Diversity.
“The court’s decision, which flatly rejects the state’s ‘catch me if you can’ permitting style, is a big step toward cleaning up Colorado’s waterways by holding this industry accountable for its pollution,” Connor said.
Colorado officials said they will appeal.
The environmental groups “did not allege and did not present any evidence that concentrated animal-feeding operations are polluting or causing any adverse impacts to any groundwater or surface waters within Colorado,” said Gabi Johnston, spokesperson for the Water Quality Control Division. “Colorado’s concentrated animal feeding operations permitting requirements are some of the most stringent in the nation.”
Advocates can’t present specific evidence of contamination precisely because there is no requirement for monitoring and public reporting, said Tyler Lobdell of Food and Water Watch. Now there will be, he said.
“It’s the kind of circular logic that is at the core of the department’s proposition there,” Lobdell said. Besides, he added, evidence of the danger of concentrated animal farms is in the South Platte River every day, where multiple operations have contributed to high nitrogen and E. coli levels detected in the river itself.
“That monitoring piece really is foundational to ensuring that permits are doing what they’re intended to do in the real world,” Lobdell said.
The environmental groups said they sense a “change of the tide” in regulating concentrated animal operations. They won a similar judgment in Idaho against the EPA, requiring that water quality monitoring be added to a general permit that covered operations for numerous types of mass animal farms. The Colorado judge cited the Idaho decision as “playing a large role in this dispute.”
The Colorado Livestock Association has rejected calls for a permit overhaul, as an intervenor in the case on behalf of large farm operators. They say Colorado’s general permit is much tougher than all other states called out by environmental groups. Large Colorado farms also take issue with the “factory farm” label, saying they should be referred to as “concentrated” operations.
“Groundwater monitoring wells are not a necessity,” said association CEO Zach Riley. There are no connections between surface impoundments of animal waste on the big farms and waters that flow into federally-regulated rivers, Riley said, “otherwise we’d never have been able to get a permit in the first place.”
Individually crafted permits requiring more water monitoring would raise expenses and overlap existing rules, and the effort is just an extension of ongoing advocacy attacks on big animal operations, the cattle trade group has said.