Chris Kraft calls his 34-year-old dairy farming operation in Fort Morgan the “ultimate recycling program.”
The formula, he says, is simple: Cow manure is used to fertilize crops, which then feed the cows. Kraft says it’s been working for “millenia.”
But environmental groups beg to differ, claiming farms like Kraft’s pollute waterways. And on May 22, a Colorado court agreed, ruling that the state’s Department of Public Health and Environment (CDPHE) violated both state and federal laws by failing to monitor water quality at large animal operations raising hogs, poultry and cattle.
“The factory farming industry has become very used to operating with a certain level of impunity that no other industry has enjoyed in our lifetimes,” says Tyler Lobdell, staff attorney with D.C.-based Food & Water Watch, a plaintiff in the case along with the Center for Biological Diversity. “There’s very strong resistance to relinquishing that impunity, and Colorado is a great example of that.”
Per the general operating permit that governs more than 100 such facilities around the state, concentrated animal feeding operations (CAFO) in Colorado are not required to provide water testing and proof of compliance, but are instead directed to “eliminate” pollution entirely.
Lobdell calls it “circular logic.”
“These CAFO permits don’t allow the discharge of pollutants at all,” Lobdell says. “Because of that wording, there’s been this idea that you don’t need monitoring.”
Kraft disagrees, pointing to the regulations already in place.
“You already have to impound everything that touches manure on the farm,” he says. “You have to control it. The state checks this regularly. We have to account for all of the waste that goes into the impoundment and all of the waste that goes out. That is monitoring. You’re already doing it.”
AT ODDS
A statement from CDPHE’s Water Quality Control Division called Colorado’s CAFO permitting requirements “some of the most stringent in the nation.”
Code of Colorado Water Control Regulation 81, last updated in 2017, says, “There shall be no discharge of manure or wastewater from the production area to waters of the U.S. without a discharge permit.”
But it doesn’t include requirements for monitoring wastewater.
Administrative judge Matthew Norwood ruled that the federal Clean Water Act demands tighter monitoring of so-called “point sources” like CAFOs, putting Colorado at odds
with national law.
CDPHE plans to appeal the ruling.
“There’s an under-regulation in this industry despite the fact that it has a significant footprint,” says Hannah Connor, an attorney at the Arizona-based Center for Biological Diversity. “There’s an effort to improve water quality throughout the country by improving what these permits are supposed to be.”
Similar rulings were made in Idaho and Washington in 2021. Responding to a petition from Food & Water Watch and 10 other organizations earlier this year, the Environmental Protection Agency said it will be launching a study on the effects large-scale animal farming has on waterways.
“Our challenge to [Colorado’s] permit was to call out that there is no monitoring whatsoever,” Lobdell says. “Overall, the objective is to hold these facilities accountable so places like the state of Colorado, the general public, and organizations like Food & Water Watch can determine whether or not a facility is compliant.”
PAR FOR THE COURSE
The ruling has put the livestock industry on edge.
Zach Riley, CEO of the Colorado Livestock Association, says new requirements for water monitoring will put financial stress on smaller operations. He estimates the cost of groundwater testing could rise high into five figures if it requires drilling near waste storage impounds.
“It’s a costly and difficult thing to employ,” Riley says. “It’s just another way to compromise these feeding operations.”
Kraft says farms — more than 90% of which are still family owned and operated, according to Census of Agriculture data — already have an incentive to prevent pollution from seeping into water sources.
“This is land the families have had for generations,” Kraft says. “Many families are drinking that groundwater at their farm. Their kids are drinking that water, their animals are. So they have as much desire to do the right thing as anyone else.”
Lobdell says water testing costs are par for the course within the terms of the federal Clean Water Act. Regarding whether state or federal funding would help pay for testing, Lobdell says “this should not be on the taxpayer — it’s the CAFOs’ responsibility.”
There is currently no requirement for the state to help fund testing obligations.
“These requirements for monitoring are how this permitting regime works for every other industry,” Lobdell says. “The generation of public reports of discharge is the primary device that creates accountability within the permitting structure. Without that, there’s no way to tell if a facility has met the various pollution limits that the permit lays out.”
‘A CATCH-22’
Both CDPHE and the Colorado Livestock Association say the ruling in this case is questionable due to a lack of data.
Environmental groups can’t present evidence, Lobdell says, because there is no requirement for monitoring.
“It’s a catch-22,” he says. “They are asking us to come to the table with the exact information that we claim the state has been failing to collect.”
Riley says that in 2022 the Colorado Livestock Association convened with CDPHE to reformat the permit to include a regulation around sewage discharge, but their attempts at finding middle ground were unsuccessful.
“Over 95% of the membership in this organization are all owned by single-family owner-operators,” Riley says. “These are good families that are now saying, ‘We did the best that money can buy, and now we have to come up with more?’”
Kraft wonders if the lawsuit will put more strain on the relationships between farmers and environmental advocacy organizations.
“It’s not an irrelevant question overall to ask if we are doing things right,” he says. “But, the way [environmental groups] chose to solve that problem was to take it to court and challenge the rules. Ask the question, but ask it in a different forum. When you take it to court, it creates an adversarial relationship.”
“At the end of the day,” Kraft says, “we’ll do what people say we should — whatever the public thinks we should do. But it’s just another bite out of the hand that feeds you.”
Lobdell says litigation was the only way forward.
“It has certainly been my experience in states throughout the country that this industry is exceptionally unwilling to yield to commonsense regulation,” he says. “So while I … wish that more direct dialogue were a viable option, I simply have not seen that play out productively anywhere else.”
