DENVER — A Colorado court has ruled that the state’s Department of Public Health & Environment violated state and federal laws by failing to protect waterways with essential monitoring provisions in a statewide general water-pollution permit for concentrated animal feeding operations.
The decision could have broad repercussions: Of the 100 factory farms in Colorado that maintain a Clean Water Act permit, 99 operate under the permit at issue in this case.
This ruling was made by the Colorado Office of Administrative Courts. It follows a years-long legal fight by the Center for Biological Diversity and Food & Water Watch to address Colorado’s failure to issue permits that can ensure compliance with water-pollution restrictions, such as by appropriately monitoring their pollution.
“Factory farms are a dangerous source of water pollution in Colorado, partly because the state’s lenient permitting terms don’t require proof of compliance,” said Hannah Connor, an attorney at the Center for Biological Diversity. “The court’s decision, which flatly rejects the state’s ‘catch-me-if-you-can’ permitting style, is a big step toward cleaning up Colorado’s waterways by holding this industry accountable for its pollution.”
In an effort to keep rivers and other water bodies safe for people and wildlife, the Clean Water Act requires polluters like factory farms to follow discharge permits that limit dangerous pollution reaching them. The lawsuit that triggered today’s ruling was prompted by the fact that Colorado’s permitting process for factory farms contains loopholes that hide the timing and amounts of pollution they release.
This decision follows a 2021 Food & Water Watch legal victory in which the U.S. Court of Appeals for the 9th Circuit ruled that the Environmental Protection Agency’s permit for factory farms in Idaho unlawfully let factory farms off the hook by not including pollution monitoring. A similar ruling was made in Washington state, also in 2021.
“This opinion is another domino to fall on the path toward comprehensive pollution accountability for the destructive factory farming industry,” said Tyler Lobdell, staff attorney with Food & Water Watch. “Colorado has long failed to hold factory farms accountable for their pollution. Instead of requiring monitoring as it does for nearly every other industry, regulators have taken a see-no-evil approach that gives factory farms a license to pollute. This win is an important step forward for clean water in Colorado and, indeed, nationwide.”
Factory farms pose a well-documented risk to clean water, confining thousands of animals in tightly concentrated facilities. The huge amount of waste produced by the animals is collected and often stored in giant impoundments. These lagoons are prone to leaking pollutants such as nitrogen, phosphorus, pathogens, heavy metals, salts, and pharmaceuticals, which can severely impair ground and surface waters, harming water quality, wildlife, and public health.
Due to those pollution risks, factory farms are regulated as pollution “point sources” under the Clean Water Act, which limits the amount of pollution they may release into surface waters. Under the Act, as reflected in the ruling, monitoring for pollution is required to demonstrate compliance with these pollution limitations. In failing to include this requirement in the challenged general permit, Colorado violated the law.
To resolve this violation, the court has ordered the state’s Department of Public Health & Environment to modify the permit to require “representative monitoring” of the permit’s pollution limits, as the law requires.
The Center and Food & Water Watch are represented in this lawsuit by the Environmental Law Clinic at the University of Denver Sturm College of Law.