Source:  Rita Jane Gabbett, MEATINGPLACE.COM, 3/16/11

In a unanimous decision issued today, a federal court ruled that the U.S. Environmental Protection Agency cannot require livestock operations to obtain Clean Water Act (CWA) permits unless they are discharging manure into a waterway of the United States.

The National Pork Producers Council called the decision a major victory for pork producers.
The U.S. Court of Appeals for the 5th Circuit in New Orleans said that EPA exceeded its statutory authority in requiring concentrated animal feeding operations (CAFOs) that propose or that might discharge to apply for CWA permits.

NPPC, the American Farm Bureau Federation, the United Egg Producers and several other agricultural groups sued EPA over its 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 that 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. The rule essentially established a presumption that CAFOs “proposed” to discharge if any future discharge occurred. The rule covered production areas and crop land on which manure is applied and imposed fines of up to $37,500 a day not only for illegal discharges but for the failure of a CAFO that had a discharge to apply for a CWA permit.

“NPPC is very pleased with the 5th Circuit’s decision,” said NPPC President Doug Wolf, a pork producer from Lancaster, Wis. “The court recognized a clear limit on EPA’s authority and required the agency to comply with the clean water law.”

The National Chicken Council participated in the suit. The organization released a statement, saying, "America’s poultry farmers are good stewards of the land.  EPA’s requirement that farms had to apply for a discharge permit, even though no discharge occurs, was an onerous and unnecessary bureaucratic invention.  Getting rid of it is a victory for common sense.”

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