The U.S. Environmental Protection Agency elected not to push for a rehearing on the Clean Water Act court case that the National Pork Producers Council filed regarding permitting requirements associated with confined-animal-feeding operations or CAFOs.
NPPC scored a victory in March when a three-judge panel of the U.S. Court of Appeals for the 5th Circuit in New Orleans ruled that EPA can only require permits from farms that are actively discharging, and that it will be binding on EPA across the country. EPA had until May 13, to request a rehearing before the full 5th Circuit Court.
That court’s decision was a major victory for pork and other producers. The court ruled that EPA exceeded its statutory authority in requiring CAFOs that propose to or that might discharge to apply for Clean Water Act permits. Joining NPPC in suing EPA over what’s known as the CAFO Rule, was the American Farm Bureau Federation, the United Egg Producers and several other agricultural groups.
EPA issued the CAFO rule in question in 2008 after the U.S. Court of Appeals for the 2nd Circuit in New York City struck down the agency’s core provision in the initial 2003 regulation. In that 2005 decision, the 2nd Circuit Court ruled that the Clean Water Act requires permits only for producers who actually discharge. EPA had sought to require permits for operations that had a “potential” to discharge, reports NPPC.
The 2008 regulation set a zero-discharge standard and required a duty for all CAFOs that discharge or “propose” to discharge to apply for a Clean Water Act permit. 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, and it imposed fines of up to $37,500 per day not only for illegal discharges but for the failure of a CAFO that had a discharge to apply for a Clean Water Act permit.
Arguing before the 5th Circuit Court, 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 Court. The council also argued that the “failure to apply” violation creates substantial economic pressure to apply for a Clean Water Act 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 position, ruling on the “duty to apply” provision that previous court cases “leave no doubt that there must be an actual discharge … to trigger the Clean Water Act’s requirements and EPA’s authority.” The court also struck down the CAFO rule’s “failure to apply” provision, stating that its imposition is “outside the bounds of the Clean Water Act’s mandate.”
Following EPA’s decision not to seek a rehearing, NPPC officials said they will immediately initiate efforts to recover legal fees expended in challenging EPA’s 2008 CAFO Rule.