In a unanimous decision issued on March 15, a federal court ruled that the U.S. Environmental Protection Agency (EPA) 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 United States. The National Pork Producers Council (NPPC) has called the decision a major victory for U.S. pork producers.
The U.S. Court of Appeals for the 5th Circuit in New Orleans said the EPA exceeded its statutory authority in requiring concentrated animal feeding operations (CAFOs) that propose to discharge manure, or that might discharge manure, to apply for CWA permits.
NPPC, the American Farm Bureau Federation, the United Egg Producers, and several other agricultural groups, sued EPA over the so-called CAFO rule, which was issued in 2008, after EPA’s core provision in the initial 2003 regulation was struck down by the U.S. Court of Appeals for the 2nd Circuit in New York City. In a 2005 decision, the court ruled that 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.
The 2008 regulation, which set a zero-discharge standard, included a duty to apply for a CWA permit for all CAFOs that discharge or “propose” to discharge. As NPPC explains, the rule essentially established a presumption that CAFOs “proposed” to discharge if any future discharge occurred. The rule covered production areas and cropland on which manure is applied. Fines of up to $37,500/day could have been imposed under the regulation.
“NPPC is very pleased with the 5th Circuit’s decision,” says NPPC President Doug Wolf, a pork producer from Lancaster, WI. “The court recognized a clear limit on EPA’s authority and required the agency to comply with the clean water law.”
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 that 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 manure 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 that 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,” Wolf says. “Getting a federal permit is irrelevant to meeting the standard. The time, effort and cost of getting a permit is a complete waste when all it will do is tell producers to do exactly what they already are required and fully intend to do – not have a discharge.”