Conservation groups file appeal challenging Colorado CAFO water permits

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Colorado officials are failing to require legally mandated water quality monitoring near concentrated animal feeding operations, allowing for widespread water contamination with animal waste, conservation groups allege in a new legal challenge to the state.

The Center for Biological Diversity and Food & Water Watch say the state permits for the animal feeding operations, commonly called CAFOs, lack the type of water monitoring needed near lagoons where massive amounts of animal manure and waste are stored.

The situation amounts to “an ongoing attack on public health and wildlife,” according to Center for Biological Diversity senior attorney Hannah Connor. 

CAFO waste can contaminate water with bacteria like E. coli, antibiotics and hormones, heavy metals and excess nutrients, such as phosphorus and nitrogen, all of which can be harmful to human and environmental health. A report released last week found that industrial animal farming is responsible for about half of all of the country’s nutrient pollution. 

The groups have been battling the state in the courts for the last several years over this issue. 

An administrative judge previously sided with the conservation groups, saying the permitting needed to include requirements for additional liners in the lagoons and groundwater testing.

However, the Colorado Department of Public Health and Environment — which is the defendant in the case along with the Colorado Livestock Association — issued a final agency order reversing the judge’s decision and kept permitting as is in 2024. 

The case then went to district court last year and the 2024 reversal by the state agency was upheld.

The conservation groups are now appealing that ruling. In their opening brief filed Feb. 6, the conservation groups state that the state’s CAFO permits prohibit any waste discharges to “waters of the US” under the Clean Water Act and that “the law demands representative monitoring to ensure permitted CAFOs comply with this standard, but the CAFO permit lacks such monitoring.” 

“The main issue in question is ensuring those waste management impoundments are themselves complying with the obligation that says you cannot discharge any pollution into waters,” Connor said in an interview. “It’s a zero discharge limitation … regardless of the medium by which it reaches the surface water, such a discharge is unlawful under the permit.” 

State regulators and the Colorado Livestock Association have maintained that the state’s CAFO permits are legal, and protect both water and human health. The state argued that the permitting meets federal requirements under the Clean Water Act and that the general permit already prohibits all discharges from CAFO production areas, including discharges to groundwater connected to surface waters, so there’s no need for more monitoring. 

Gabi Johnston, a spokesperson for the Colorado Department of Public Health and Environment, said the agency doesn’t comment on pending litigation but that “protecting Colorado’s waters is a top priority, and we are committed to following federal permitting regulations for Concentrated Animal Feeding Operations.”

However, Connor said the lagoons — whether using liners or soil and clay — have some built-in permeability and are “intended to leak.” Multiple studies over the years have found manure storage lagoons release some contaminants. 

“Colorado allows lagoons to be built to a standard that we have clear science showing is not protective of water quality,” said Tyler Lobdell, a senior staff attorney with Food & Water Watch. 

“Facilities build lagoons with liners and send in a certificate from an engineer and that’s the end of it. Years later no one is looking into the seepage rate,” he said. “There’s a lack of accountability … and a whole lot of assumptions.” 

Travis Grant, CEO of The Colorado Livestock Association, said Colorado’s CAFO permit has “long been considered the gold standard in safeguarding water quality and environmental health,” and said the state’s livestock producers already protect water via monitoring and testing, using lagoons, and following guidelines for land application of manure. 

“This challenge to the permitting system has been ongoing since October 2021, at a not-insignificant cost, with multiple judges upholding the permitting system and rejecting the appellants’ allegations,” he added. 

Colorado’s cattle CAFOs average about 13,000 cows, which is a roughly 80% increase over the past 20 years, according to a Food & Water Watch analysis. The same analysis found the state’s CAFOs generate more than 34 billion pounds of manure each year — more than four times the waste produced by the state’s people. 

Food & Water Watch won a similar case in 2021 that forced Idaho regulators to include more stringent water quality monitoring efforts in CAFO permitting. And last year a legal challenge from other conservation groups forced Washington state regulators to start rewriting pollution discharge permits for CAFOs. 

In Colorado, the state and the Colorado Livestock Association will soon file opening briefs, and then there will either be oral arguments, or the court will make a decision based on the written briefs. 

Featured image: Larry Lamsa/flickr