Court ruling keeps some livestock farms from needing permits

By BRUCE HOTCHKISS
Senior Editor

The EPA has had its wrist slapped by a federal court and although the impact that discipline will have on Mid-Atlantic poultry growers, dairymen and cattlemen is not known, it is worth noting.
The EPA  has ruled that concentrated animal feeding operations which  only “propose” to discharge pollution do not have to obtain permits under the Clean Water Act.
The rule means that, as of Aug. 1, only CAFOs that actually discharge will be required to obtain National Pollutant Discharge Elimination System permits.
The rulemaking stems from a federal court decision last year that found EPA’s “propose to discharge” regulation went beyond the authority given to the agency in the Clean Water Act.
As point sources under the Clean Water Act, concentrated animal feeding operations are required to obtain permits for any discharges they make. Under the final rulemaking, the permit requirement is triggered only when there is an actual discharge into the waters of the United States.
EPA has struggled to come up with CAFO regulations to appease both environmental groups — including the Waterkeeper Alliance — and industry groups and has been mired in litigation over the issue for the past decade.
It was the language that would require that CAFOs that “discharge or propose to discharge” obtain permits which led to the most recent court challenge.
EPA defined a CAFO proposing to discharge as “a CAFO designed, constructed, operated, and maintained in a manner such that the CAFO will discharge.”
In March 2011, the U.S. Court of Appeals for the Fifth Circuit vacated the parts of the rule with the language “propose to discharge” in National Pork Producers Council v. EPA. The court again found that EPA did not have authority over CAFOs that weren’t discharging.
Interestingly, in a separate settlement with environmental groups that intervened in the suit, EPA agreed to require that CAFOs provide certain data on their facilities. Two weeks ago, though, the agency withdrew a proposed reporting rule and said it would collect the data from existing sources.