A pair of environmental groups is suing a Colorado department for what the groups allege is a failure to protect Colorado waters and public health from “factory farm pollution.”
The Center for Biological Diversity and Food and Water Watch brought suit on May 23 against the Colorado Department of Public Health and Environment (CDPHE), Water Quality Control Division, Division of Environmental Health and Sustainability, and the Colorado Livestock Association (CLA).
The lawsuit alleges Colorado violated state and federal laws by not including pollution-monitoring provisions in general water-pollution permits for concentrated animal feeding operations (CAFOs). The permit regulates discharges from about 100 of Colorado’s largest CAFOs.
“CDPHE has made these pollution limits, known as ‘effluent limitations,’ unenforceable by failing to include representative monitoring and reporting provisions in the permit,” the suit read. “Failure to include these provisions renders the permit ineffective at protecting Colorado’s waters and unlawful under the federal Clean Water Act and Colorado Water Quality Control Act.”
The suit continued that waste generated by CAFOs poses significant threats to water quality and needs to be carefully managed. The groups ask the Larimer County District Court to declare the general permit unlawful, vacate a final CDPHE agency order and remand the general permit back to the agency for modification.
Background
CDPHE issues permits under the Clean Water Act that include specific effluent limitations that prohibit specific discharges. The environmental groups take issue with the “general” permit that is issued with standards and framework for eligible CAFOs, rather than individualized permits. The groups allege the general permit fails to require representative monitoring provisions.
“The General Permit here fails to include the federally required representative monitoring provisions that can demonstrate whether a CAFO is complying with the Permit’s effluent limitations,” the suit read.
In a similar case in Idaho in 2021, the 9th Circuit Court of Appeals ruled that a general permit for CAFOs was “arbitrary, capricious, and contrary to law if the permit fails to include monitoring provisions that ensure compliance with the permit’s effluent limitations.”
The groups first raised concern with Colorado’s general permits in 2021 in the CDPHE’s administrative processes and then before an administrative law judge in June 2022. The judge held that the general permit was unlawful and ordered the agency to modify the permit to include representative monitoring provisions.
CLA filed for an appeal, which the executive director of CDPHE accepted in late April and reversed the administrative law judge’s initial ruling.
“This decision was the right result for livestock raising families in Colorado and preserves a permitting system that protects our state’s natural resources while maintaining economic viability for Colorado’s agriculture industry for generations to come,” CLA said in a statement.
The group continued that Colorado’s general permitting process sets one of the highest standards in the nation for environmental stewardship and protection. CLA added that if Colorado were to require individual permits, it would raise expenses for farmers and overlap existing rules. This, the group noted, is part of the environmental groups’ efforts to “put large animal agriculture operations out of business.” — Anna Miller, WLJ managing editor
