Blog By: Bailey Truitt
The equine industry is one of Kentucky’s most esteemed industries. After all, Kentucky is the world’s horse capital because of its historical background in the horse industry, with more than 450 horse farms across the state.[i] Some of the biggest horse tracks in the nation have their homes in Kentucky, including Keeneland, Churchill Downs, and Turfway Park. More than 150,000 people attend the Kentucky Derby at Churchill Downs every year, and Keeneland horse track is a National Historic Landmark. [ii]
Kentuckians benefit from the equine industry, as horse tracks have “invested millions of dollars and added thousands of permanent and temporary jobs” that add “significant economic impact in those communities.”[iii] One racehorse can add over fifty jobs to the market. [iv] In Central Kentucky alone, there are over four hundred horse farms and over a thousand equine operations in Fayette County. [v] Overall, the equine industry’s economic impact in Kentucky is about $3.4 billion, with over 80,000 jobs. [vi]
With Kentucky so intertwined in the horse industry, the regulations surrounding equine operations greatly impact the community. For example, the Clean Water Act (“CWA”) created equine regulations[vii] which made it unlawful to discharge any pollutant from a point source into navigable waters unless a permit is granted and controlled by the National Pollutant Discharge Elimination System. [viii]
The Environmental Protection Agency regulates Animal Feeding Operations (“AFOs”) and Concentrated Animal Feeding Operations (“CAFOs”) through the National Pollutant Discharge Elimination System (“NPDES”). [ix] AFOs are agricultural operations where animals are raised in confined situations and fed for forty-five days or more in twelve months. Crops are not grown during the regular season on any land owned by the facility. [x] CAFOs are defined by the EPA by their size, number of animals, amount of waste reaching waters of the United States, proximity to waters of the United States, the means of conveyance of animal wastes, the likelihood or frequency of discharge of animal wastes and process waste in the waters of the United States and other relevant factors.[xi]
Historically CAFO regulations were enforced on dairy farms, swine farms, and large chicken operations because the AFO and CAFO legislation and regulations were targeted at agricultural operations.[xii] However, Horse tracks are per se part of AFOs or CAFOs because the tracks hold the horses for at least forty-five days in twelve months, meet the waste and pollutant requirements, and do not grow feed or crops on sight.[xiii]
The EPA gives states delegation power in giving permits for CAFOs and allows states to fine CAFOs for violations.[xiv] Litigation against horse park violations has greatly increased, and horse racetracks are now some of the most heavily fined CAFOs.[xv] State EPA affiliates are litigating cases against racetracks and winning or settling nationwide.[xvi] Because the equine industry is pivotal for Kentucky’s economic success, ensuring racetracks follow CAFO regulations is crucial to avoid civil penalties and fines.
Kentucky’s equine industry can protect itself against CAFO litigation through guidance from prior lawsuits and settlements. In United States v. New Portland Meadows, the EPA in Oregon issued an order that found New Portland Meadows violated the Federal Water Pollution Act and CAFO regulations.[xvii] New Portland Meadows incorrectly discharged polluted water that entered a tributary, violating CWA and CAFO regulations.[xviii] Similarly, in Florida, the Gulfstream Park Racing Association settled with the EPA for violations relating to discharging pollutants, and they polluted the Atlantic Intracoastal Waterway.[xix] Gulfstream Park Racing Association had to pay and install horse wash pads to capture wastewater and connect those pads to publicly owned treatment works.[xx] Across the country, Suffolk Downs in Massachusetts violated CAFO regulations by allowing the discharge of water contaminated with manure, urine, and bedding material into waters of the United States without an NPDES permit.[xxi] Suffolk Downs was required to pay for a new roof runoff system, sewer infrastructure to pipe wastewater to a storage pond, and to build sediment settling to manage runoff.[xxii] Finally, the largest settlement and fine given to a CAFO violation was given to Churchill Downs Louisiana Horseracing Company with a civil penalty of $2,790,000 and operational changes to reach $5,600,000.[xxiii]
Kentucky’s horse tracks and large equine operations should revamp their CAFO-required infrastructure to prevent fines and litigation against them. Current litigation should be a warning that the equine industry could be in for massive fines and payouts if the priority is not revising the industry. Revamping the equine operations in Kentucky will protect the waters from pollutants and continue encouraging economic growth and a thriving equine industry in the Bluegrass.
[i] Equine Experience in the Bluegrass, Visit Lex, https://www.visitlex.com/meetings/planner-tool-kit/horse-capital-of-the-world/ (last viewed Oct. 22, 2023) [https://perma.cc/ARL9-E6KT].
[ii] Horse Racing, Kentucky Tourism, https://www.kentuckytourism.com/things-to-do/horses/horse-racing (last viewed Sep. 28, 2023) [https://perma.cc/5ZND-93U6].
[iii] The Horse Capital of the World: Kentucky’s Signature Industry by the Numbers https://apps.legislature.ky.gov/CommitteeDocuments/349/13529/Aug%209%202021%20KEEP%20Testimony.pdf (last viewed Sep. 28, 2023) [https://perma.cc/58C6-EK3L].
[iv] Id.
[v] Equine Industry a Leading Sector in Central Kentucky, Fayette Alliance, (October 17, 2022), https://fayettealliance.com/equine-industry-leading-economic-force-cky/ [https://perma.cc/D2UL-ZY5J].
[vi] CKY Market Review: An economic force and a way of life, Lane Report, (Oct. 10, 2019), https://www.lanereport.com/117888/2019/10/cky-market-review-an-economic-force-and-a-way-of-life/ [https://perma.cc/YA4M-CJ3Z].
[vii] Producers’ Compliance Guide for CAFOs: Revised Clean Water Act Regulations for Concentrated Animal Feeding Operations (CAFOs), U.S. Env't Prot. Agency, https://www.epa.gov/sites/default/files/2015-06/documents/compliance-cafos.pdf (last viewed Oct. 22, 2023) [https://perma.cc/K4RW-AUCV].
[viii] 33 U.S.C. §1251 (1972).
[ix] Animal Feeding Operations (AFOs), U.S. Env't Prot. Agency, https://www.epa.gov/npdes/animal-feeding-operations-afos (last viewed Oct 22, 2023) [https://perma.cc/DJS3-7EQ2].
[x] Id.
[xi] 40 C.F.R. § 122.23(c)(2) (2023).
[xii] Sam Bloch, Largest ever fine for water pollution goes to a CAFO- and it’s a horse track in New Orleans, The Counter, (Oct. 10, 2020, 8:00 a.m.) https://thecounter.org/epa-clean-water-act-fine-fair-grounds-race-track/ [https://perma.cc/T7S3-XJG6].
[xiii] Id.
[xiv] Producers’ Compliance Guide for CAFOs, supra note vi.
[xv]Press Release, United States Reaches Agreement to Protect New Orleans Waterways and Lake Pontchartrain, U.S. Att'y Office E. Dist. of La, (Sep. 29, 2020), https://www.justice.gov/usao-edla/pr/united-states-reaches-agreement-protect-new-orleans-waterways-and-lake-pontchartrain [https://perma.cc/2CUL-8XLC].
[xvi] See, e.g., Churchill Downs Louisiana Horseracing Company, LLC, Clean Water Act Settlement, U.S. Env't Prot. Agency, https://www.epa.gov/enforcement/churchill-downs-louisiana-horseracing-company-llc-clean-water-act-settlement (last viewed Oct. 22, 2023) [https://perma.cc/Y3L7-D8S4].
[xvii] United States v. New Portland Meadows, Inc., 2002 U.S. Dist. LEXIS 19153 at 2 (D. Or. 2002).
[xviii] Id. at 17.
[xix] Gulfstream Park Racing Association, Inc. Clean Water Act Settlement, U.S. Env't Prot. Agency, https://www.epa.gov/enforcement/gulfstream-park-racing-association-inc-clean-water-act-settlement (last viewed Sept. 28, 2023) [https://perma.cc/HF6Y-RAV8].
[xx] Id.
[xxi] Sterling Suffolk Racecourse LLC Settlement, U.S. Env't Prot. Agency, https://www.epa.gov/enforcement/sterling-suffolk-racecourse-llc-settlement (last viewed Sept. 28, 2023), [https://perma.cc/RUJ3-UZP9].
[xxii] Id.
[xxiii] U.S. Att'y Office E. Dist. of La, supra note xiv.