CAFO suit victory over EPA a 'win' for producers

by Bryan Salvage
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WASHINGTON – A federal court ruled on March 15 in a unanimous decision that the US Environmental Protection Agency cannot require livestock operations to obtain Clean Water Act (CWA) permits unless and until they have a discharge of manure into a waterway of the US. The National Pork Producers Council, National Chicken Council and US Poultry & Egg Association called the decision a major victory for their members.

EPA exceeded its statutory authority in requiring concentrated animal feeding operations (CAFOs) that propose or that might discharge to apply for CWA permits, the US Court of Appeals for the 5th Circuit in New Orleans ruled.

Agricultural groups sued EPA over its CAFO rule. This rule was issued in 2008 after EPA’s core provision in the initial 2003 regulation was denied by the US Court of Appeals for the 2nd Circuit in New York City. The court ruled in its 2005 decision the CWA requires permits only for producers who actually discharge. EPA had sought to require permits even for operations that had a “potential” to discharge.

Setting a zero-discharge standard, the 2008 regulation included a duty to apply for a CWA permit for all CAFOs that discharge or “propose” to discharge. A presumption was essentially established by the rule that CAFOs “proposed” to discharge if any future discharge occurred.

Production areas and crop land on which manure is applied were covered by the rule. It imposed fines of up to $37,500 a day for illegal discharges, as well as for the failure of a CAFO that had a discharge to apply for a CWA permit.

In arguments before the 5th Circuit, NPPC said the 2008 rule’s duty to apply “constitutes a thinly veiled effort to impose the same duty to apply that was invalidated” by the 2nd Circuit. It also argued the “failure to apply” violation creates substantial economic pressure to apply for a CWA permit and that the regulation shifts the burden to a non-permitted CAFO that has a discharge to establish that it did not “propose” to discharge.

The 5th Circuit Court agreed with NPPC’s arguments, ruling on the “duty to apply” provision that previous court cases “leave no doubt that there must be an actual discharge … to trigger the CWA’s requirements and EPA’s authority.” It also struck down the CAFO rule’s “failure to apply” provision, stating its imposition is “outside the bounds of the CWA’s mandate.”

“Pork producers have worked hard to meet, and are meeting, the zero-discharge standard, which the pork industry has embraced,” said Doug Wolf NPPC president and a pork producer from Lancaster, Wis. “Getting a federal permit is irrelevant to meeting the standard. The time, effort and cost of getting one is a complete waste when all that permit will do is tell producers to do exactly what they already are required and fully intend to do – not have a discharge.”

NCC and USPOULTRY also hailed the decision. “EPA’s requirement that farms had to apply for a discharge permit, even though no discharge occurs, was an onerous and unnecessary bureaucratic invention,” they said in a statement. “Getting rid of it is a victory for common sense.”

Both groups participated in a challenge filed in the court in New Orleans to overturn EPA’s policy that livestock and poultry farmers have a “duty to apply” for discharge permit. Broiler chicken farms keep animals indoors on dry litter systems and do not discharge waste. NCC and USPOULTRY argued EPA had no authority to impose a duty to get a permit unless there is an actual discharge.
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