Protecting Our At-risk Communities from the Ground(water) Up: Cafos, the Clean Water Act, and a Framework for Offering Clarity to an Imprecise Maui Test

• Citation: Vol. 71 No. 3
• Publication year: 2022

Protecting Our At-Risk Communities from the Ground(Water) Up: CAFOs, the Clean Water Act, and a Framework for Offering Clarity to an Imprecise Maui Test

Shawn D. Ren

PROTECTING OUR AT-RISK COMMUNITIES FROM THE GROUND(WATER) UP: CAFOs, THE CLEAN WATER ACT, AND A FRAMEWORK FOR OFFERING CLARITY TO AN IMPRECISE MAUI TEST

Abstract

For rural communities across the country, the problems associated with concentrated animal feeding operations (CAFOs) are nothing new. These industrial-sized operations emit a tremendous amount of waste, polluting the surrounding air, land, and water. In many regions, minority, indigent, and uneducated groups disproportionately bear the ill-effects of these inhumane operations. Under the Clean Water Act, CAFOs are explicitly included in the definition of a point source and are thus subject to the National Pollutant Discharge Elimination System (NPDES) permitting requirements, which regulates the discharge of pollutants. However, many operations do not fit within this regulatory scheme as they do not directly discharge to navigable waters. In April 2020, the Supreme Court held in County of Maui v. Hawaii Wildlife Fund that point sources do not actually need to discharge directly into jurisdictional waters to fall within the ambit of the NPDES permitting program; instead, a "functional equivalent" of a direct discharge will suffice. Applying this "functional equivalent" doctrine to encompass select instances of CAFO groundwater contamination would give our rural communities a real avenue to meaningfully combat environmental injustices that had previously been just a reality with which they had to cope.

This Comment argues that the Maui doctrine can uniquely work as a doctrinal tool against concentrated animal feeding operations that contaminate surface waters through groundwater, placing those operations under the scope of the NPDES regulatory framework and providing multi-faceted relief to affected communities. It explores the difficulties involved with establishing sufficient scientific linkage on the issue of groundwater contamination by CAFOs and why that task is far from insurmountable. It then spotlights the application of the Maui doctrine to actual, real-world CAFOs and offers factors, goals, and directives that bring CAFOs that pollute into nearby waterbodies through groundwater squarely within the ambit of the Clean Water Act. Finally, this Comment discusses the substantial environmental implications of CAFO regulation and this Comment's utility for other foreseeable applications of the Maui doctrine.

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Introduction.............................................................................................565

I. CAFO Water Pollution and the Clean Water Act................568

A. CAFOs and the Regulatory Scheme of the Clean Water Act .... 570

1. Limitations on Enforcement Mechanisms—Discharges into Navigable Waters ............................................................... 570
2. Limitations on Enforcement Mechanisms—Discharges into Groundwater ............................................................... 573

B. The Emergence of the Maui Doctrine and Its Implications for CAFOs ...................................................................................... 574

1. The Sixth Circuit................................................................. 574
2. The Fourth Circuit .............................................................. 575
3. The Ninth Circuit................................................................ 575
4. The Supreme Court's Resolution in Maui .......................... 576
5. Lessons from EPA's Post-Maui Draft Guidance Memorandum (and Subsequent Rescission) ....................... 578

ii. hydrology of groundwater and establishing sufficient Causation........................................................................................581

A. Groundwater Hydrology and the (Not So Difficult) Task of Proving Causation.................................................................... 582
B. Testing Mechanisms to Establish Causation ............................ 585
C. Sufficiently Stating a Claim Against a Polluting CAFO........... 587

III. A Framework For Bringing Real-World CAFOs in Environmental Justice Communities Within the Scope of Maui..................................................................................................589

A. At-Risk Communities as the Primary Cost-Bearers of the Negative Externalities .............................................................. 589
B. CAFO Pollution and the Shortcomings of States in the Cooperative Relationship ......................................................... 593
C. Successfully Applying the Maui Test to Real-World CAFOs .... 596

1. A Broad Maui Interpretation Would Not Exceed the Clean Water Act Regulatory Regime ............................................ 597
2. Existing CAFOs in Eastern North Carolina and the Proposed Application of Maui ............................................ 600

a. Region of Focus as a Case Study: Northeast Cape Fear River and Nearby CAFOs............................................ 600

3. Proposal: An Interpretive Directive Guiding "Functional Equivalent" Determinations ............................................... 602

IV. Beyond CAFOs, Beyond Maui......................................................606

Conclusion.................................................................................................606

Appendix......................................................................................................608

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Introduction

What imagery do we associate with farmlands? Some may mistakenly believe the breeding grounds that source America's carnivorous appetite situate on rustic mom-and-pop farms where families work hard and children frolic in the haystacks—one great big happy scene from a country music song. That idyllic image of cows grazing under open green pastures with a bright red barn in the background is, of course, now largely an illusion. We may have grown up reading Charlotte's Web,¹ but "the reality for the vast majority of the more than 9 billion animals raised for food each year in the U.S. does not bear even a passing resemblance to Wilbur's world."² Instead, concentrated animal feeding operations (CAFOs) are now responsible for over ninety-nine percent of the roughly ten billion animals slaughtered for food each year in the United States.³ CAFOs are corporate industrial-sized livestock operations and can house hundreds to thousands of animals, depending on the animal.⁴ The harm from CAFOs comes in significant part from the overwhelming waste that these farms produce.⁵ In addition to harming our water resources,⁶ the pollution from these operations significantly contributes to climate change,⁷ worsens air quality,⁸ and drives down property values.⁹ But perhaps most importantly, inhabitants in regions laden with CAFOs face a myriad of serious health complications,¹⁰ including irreversible brain damage, burning eyes, and "blue baby syndrome"

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(also known as infant methemoglobinemia, a condition in which a baby's skin turns blue from insufficient oxygen in the blood).¹¹

Furthermore, the "routine feeding of antibiotics" to animals encourages the development of antibiotic-resistant bacteria that can then inflict catastrophic consequences on the general population,¹² including the possibility of contributing to the next global pandemic.¹³ These operations, in many cases, are disproportionately situated in regions populated by minority,¹⁴ indigent,¹⁵ and uneducated groups¹⁶ who consequently are the primary bearers of the ill-effects of these inhumane operations.

There are many limitations when it comes to fighting back against CAFOs. Due to powerful financial incentives aimed at keeping these operations humming, at-risk communities face influential special interest groups and lobbyists that help enact mechanisms that strip these communities of meaningful ways to fight exploitation, including "ag-gag"¹⁷ and right-to-farm laws.¹⁸ Furthermore, the U.S. Environmental Protection Agency (EPA) itself has not effectively provided the requisite information for regulating CAFOs and has

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gone so far as to admit that they "historically paid little attention to the state CAFO programs."¹⁹

However, the Clean Water Act (CWA) provides an avenue to regulate CAFOs.²⁰ The CWA is a federal law that established the National Pollutant Discharge Elimination System (NPDES) permitting program,²¹ which prohibits the discharge of any pollutant from any point source²² into navigable waters²³ unless the polluter obtains the requisite permit.²⁴ Under the CWA, CAFOs are explicitly included in the definition of a point source and thus subject to NPDES permitting.²⁵ However, animal feeding operations (AFOs) need to fulfill certain size and characteristic requirements before they can be considered CAFOs,²⁶ and many operations do not fit within this regulatory scheme as they do not directly discharge to navigable waters.²⁷ But in April 2020, the Supreme Court held in

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County of Maui v. Hawaii Wildlife Fund that point sources do not actually need to discharge directly into navigable (and thus jurisdictional) waters to fall within the ambit of the NPDES permitting program; instead, a "functional equivalent" of a direct discharge suffices.²⁸ Applying this "functional equivalent" test to cover particular instances of CAFO groundwater contamination would provide the nation's rural communities with a doctrinal tool that can potentially combat environmental injustices—ones that had previously been flagrant and yet hopelessly unavoidable—in a meaningful way.

This Comment argues that the "functional equivalent" test can and should extend the NPDES permitting scheme to select CAFOs that discharge pollutants into groundwater that ultimately reaches surface waters, and it offers a blueprint as to how courts should...