A 2009 court decision pertaining to pesticide regulation is a looming threat for livestock producers. EPA, state agencies, and environmental activists can leverage the precedent of National Cotton Council v. EPA to require livestock operations to seek a permit under the Clean Water Act (CWA) and charge fines of up to $37,500 per day.
The case was a challenge to EPA’s 2007 regulation that attempted to simplify the CWA’s regulatory burden on pesticide applicators. In general, point sources of pollution (read: pipes or ditches emptying into a waterway) can only legally discharge pollutants if the discharge is in compliance with a National Pollutant Discharge Elimination System (NPDES) permit. EPA’s proposed pesticide regulation stated that applicators did not need a NPDES permit so long as pesticides were applied in compliance with the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA).
Agricultural interests and environmental groups both challenged the regulation. The issue at hand was whether pesticides that entered waterways could be defined as "pollutants" under the Clean Water Act. The Sixth Circuit Court of Appeals held that pesticides, when applied in compliance with FIFRA are not pollutants under the CWA. However, the court held that "pesticide residue" and "excess pesticides" are pollutants that can be regulated under the CWA. The court reasoned that aquatic pesticides that were intentionally sprayed into waterways were not pollutants because they served a useful purpose. Conversely, the court reasoned that land-applied excess pesticides and pesticide residues that reached waterways are chemical wastes that can be regulated under the CWA. Thus, land applicators could be required to have an NPDES permit if excess pesticides or pesticide residue drift into streams or enters waterways via stormwater runoff.
Livestock producers should be concerned about National Cotton Council because of how the court addressed whether excess pesticides and pesticide residues were discharged from a "point source." The court held that excess pesticide and pesticide residue were discharged from a point source, thus requiring a NPDES permit, even though they were not excess or residue at the time they left the applicator’s nozzle. In essence, the court held that EPA can require a NPDES permit even if pollutants are not charged directly into waterways, but instead enter waters over time through air deposition or stormwater runoff.
How does this impact livestock producers?
EPA, state agencies, environmentalists, and animal rights groups have had modern animal agriculture in their crosshairs for some time. EPA twice unlawfully attempted to require all large CAFOs (1,000 beef cattle, 700 dairy cattle, 2,500 swine, or 125,000 broilers) to obtain costly and cumbersome NPDES permits regardless of whether the CAFOs discharged pollutants to waterways. Both of these attempts were thwarted. In Waterkeeper Alliance v. EPA (2005) and National Pork Producers Council v. EPA (2011), federal appellate courts tossed out EPA’s CAFO rules, holding that CAFOs were only required to obtain NPDES permits if they actually discharged pollutants.
Faced with these defeats, regulators have adapted their strategy to require livestock operations to obtain NPDES permits – proving the existence of a discharge. However, proving discharges on livestock operations are difficult absent a rare spill or leak. Unlike other point sources, CAFOs are designed to not discharge in the traditional sense of the word. Livestock operations do not have pipes or ditches channeling waste into waters because the manure and litter is stored, treated, and used as a soil amendment.
Instead, an aggressive EPA is seeking to prove livestock operations are discharging pollutants via dust particles that exit a feedlot, land on the ground, and mix with stormwater. In doing so, EPA is employing the same logic used in the National Cotton Council case: pollutants (dust particles in this case) can be "discharged" by point sources in violation of the CWA through indirect means, such as drift and runoff.
People in the livestock industry understand that animal operations produce airborne dust particles that contain manure, litter, feathers, and dander. Eliminating dust from operations is prohibitively expensive and practically impossible. EPA has already shown that it is willing to use "dust and feather" discharges as a vehicle for requiring NPDES permits on poultry operations. If EPA continues on this path, livestock producers will be saddled with the additional costs and regulatory burden of obtaining and complying with NPDES permits.
John Dillard is an attorney with Olsson Frank Weeda Terman Matz P.C. (OFW Law), a Washington, DC-based firm that serves agricultural clients and clients with issues before federal and state courts, EPA, FDA, USDA, and OSHA. John focuses his practice on agricultural and environmental law. He occasionally tweets at @DCAgLawyer.