N.C.C., USPOULTRY challenge E.P.A.'s regs

by Bryan Salvage
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WASHINGTON — A lawsuit has been filed in the Fifth U.S. Circuit Court of Appeals in New Orleans by the National Chicken Council and U.S. Poultry & Egg Association challenging the Environmental Protection Agency’s new regulation on water-pollution discharges from so-called confined animal feeding operations (CAFOs).

The new regulation was issued in response to the industry’s victory in the Second U.S. Circuit Court of Appeals in New York in 2005, in which the court said E.P.A. could not require growers to apply for permits merely because they have a "potential to discharge" pollutants to the waters of the United States. E.P.A. has replaced that portion of the rule with a new provision that would require permits where there is a "proposal to discharge."

The lawsuit will challenge the new requirement as not conforming to the Second Circuit’s ruling.

The lawsuit also challenges recent guidance documents issued by E.P.A. in the form of letters that interpret the CAFO regulation. Essentially, the letters say a grower has a "proposal to discharge," and therefore must apply for a permit, if poultry housing has a ventilation fan that may potentially exhaust dust or other substances on the ground where rain water might wash them into a ditch leading to surface waters.

N.C.C and USPOULTRY said they would argue that Congress did not intend to regulate these normal agricultural practices when it enacted the Clean Water Act.

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