Last week, water experts marked the 50th anniversary of the Clean Water Act with a dire warning: After evaluating over 700,000 miles of rivers and streams across the country, they concluded that half of those waters are too polluted to fish or swim in—and agriculture is often to blame.
“This is difficult politically, but we have to confront the fact that agricultural runoff is really the leading cause of water pollution in the U.S. today,” said Eric Schaeffer, executive director of the Environmental Integrity Project (EPI), an environmental watchdog founded by former EPA enforcement attorneys, at an online press conference Thursday. He added that the failure to confront agriculture “is probably the biggest program failure in the Clean Water Act.”
The EPI report portrays an agricultural industry that has polluted water and evaded accountability for the better part of half a century. Pollution sources include fertilizer runoff from cropland and manure runoff from factory farms, fouling waterways with pesticides, phosphorus, nitrogen and fecal bacteria. In Indiana, e.Coli bacteria was found in 73 percent of assessed waterways and harmful algal blooms are on the rise. In Delaware, meat plant wastewater is awash with fecal bacteria. That water is then sprayed onto cornfields as fertilizer, and from there it seeps into the water table, contaminating some homeowners’ drinking water.
Schaeffer stressed that U.S. water quality has actually dramatically improved under the Clean Water Act. “You have to be as old as I am to understand how bad it was before,” he said. The problem, he says, is that the agricultural industry is largely exempt from it, and that loophole needs to be closed.
“Farms raise animals under contract to a handful of very large corporations, [and] we need to make those corporations responsible for the problem,” he said. “We still have a ways to go.”
Agribusiness’ pollution problem can be traced back to the Clean Water Act itself. Passed in 1972, in the aftermath of the Cuyahoga River fire and other industrial disasters, the legislation is focused on pollution from factories and sewage plants. It includes enforceable regulations for specific, identifiable sources of pollution, like discharge pipes that dump sewage into waterways. But agricultural runoff often can’t be traced to a single pipe or source, and these non-specific sources of pollution—the EPA calls them “nonpoint” sources—are thinly regulated by the Clean Water Act.
EPI describes the regulations for farm runoff as “weak to nonexistent.” And factory farming—and its pollutants—has only become more prevalent in the decades since the law was passed.
The Clean Water Act requires the EPA to periodically review and update certain industry-specific water pollution standards, but EPI’s report found that two thirds of the agency’s industry-specific water pollution standards haven’t been updated in over 30 years. The agency also struggles to enforce some of the regulations that do involve agricultural operations, including Total Maximum Daily Loads (TMDLs)—detailed cleanup plans that state branches of the EPA are required to develop to address polluted waterways. Because “nonpoint” sources of pollution are so thinly regulated, TMDLs rely on voluntary efforts, which means many of the plans are effectively toothless.
The law promised that all waters would be “fishable and swimmable” by 1983. But EPI found that half of the river and stream miles, 55 percent of the lake acres, and 25 percent of the bays and estuaries they evaluated were “impaired”—which means they cannot be safely used for swimming, fishing, drinking water or other public uses. The report notes that its analysis relied on EPA reports, which means its dataset is incomplete: the EPA hasn’t assessed many waterways in years.
At the press conference, EPI personnel were frank about how challenging it is to effectively regulate the agricultural industry. “I have to say, the Farm Bureau makes the coal lobby and the oil lobby look like the Little Sisters of Mercy,” said Schaeffer. “The politics are very tough. They are quick to deploy pastoral images of the family farmer, even though we’re talking really about a very industrialized system.”
Schaeffer and other water experts also touched on Sackett vs. EPA, a pending Supreme Court case that could further limit the Clean Water Act by narrowing the kinds of waterways it applies to. At issue is the controversial Waters of the United States rule, issued by the EPA in 2015, during the Obama administration, which defined the upstream reach of federal clean-water laws. The American Farm Bureau Federation was in the forefront of challenging WOTUS, as the rule was known, as a power grab.
Nonetheless, EPI has sent several letters to the EPA urging it to make “across the board changes,” including updating its industry-specific water pollution standards. The organization is also pushing for Congress to close the loophole for “nonpoint” source pollution, and Schaeffer expects the EPA to issue a memo related to nutrient pollution “some time very soon.”