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Court Ruling Invalidates EPA Regulations

A recent federal appeals court ruling has placed federal rules governing discharges from concentrated animal feeding operations (CAFOs) up in the air, says an Iowa attorney.

The decision of the 2nd U.S. Circuit Court of Appeals in New York strikes down much of a 2003 ruling promulgated by the U.S. Environmental Protection Agency (EPA) that required large livestock operations to apply for environmental discharge permits.

“I think the judge provided a very common sense, practical application of the Clean Water Act, which says that you don’t need a National Pollutant Discharge Elimination System permit unless you are discharging pollutants from a point source into a waterway of the United States, explains Eldon McAfee of Beving, Swanson & Forrest, Des Moines, IA. “The court clearly said that unless there was a discharge from a concentrated animal feeding operation (CAFO), you do not have to have a permit to discharge.”

The court also ruled that land where manure is applied from CAFOs is a part of the CAFO and therefore is subject to permit requirements.

“In other words, a discharge from land application would be a discharge from a CAFO and would require a discharge permit,” observes McAfee.

However, the court went on to rule that if a CAFO utilizes a site-specific nutrient management plan, any discharge from land application in compliance with the nutrient management plan (NMP), and which results from a precipitation event, is not a discharge for which a discharge permit is required. This is the so-called agricultural storm water discharge exemption to permit requirements, he says.

The National Pork Producers Council (NPPC) said the ruling represented a mixed decision. “Parts of this ruling tell pork producers if you are following standard, good-quality manure handling practices that you do not need a permit,” says former NPPC President Keith Berry. “While this makes sense, other parts of the ruling will – without improving water quality – make it much more difficult and costly for operators to remain or enter into pork production.”

The loss of producer privacy in regards to NMPs is at the core of NPPC’s concerns.

In this part of the ruling, the court called for public participation in the development of NMPs and EPA review of manure management plans, says McAfee.

“This part of the ruling may not have a significant impact in some states,” he continues. “For example, Iowa has had these requirements in place for manure management plans since 1995.”

McAfee suggests it may be difficult for EPA to stay on schedule for implementation of its CAFO rules in April 2006.

“Producers should just sit tight and stay tuned until EPA and each state environmental agency tells us what they are going to do in response to this court decision,” he concludes.