EPA Caught Overreaching on Clean Water Act

March 23, 2011 04:02 AM
EPA Caught Overreaching on Clean Water Act

A federal appellate court ruled last week that significant portions of the Environmental Protection Agency (EPA) regulations governing concentrated animal feeding operations (CAFOs) under the Clean Water Act were outside the agency’s authority.

In National Pork Producers, et al. v. United States Environmental Protection Agency  (NPPC v. EPA), the Fifth District Circuit Court of Appeals invalidated portions of EPA’s 2008 regulations (2008 Rule) that obligated large livestock and poultry producers to apply for a National Pollutant Discharge Elimination System (NPDES) permit. The Fifth Circuit Court also struck the 2008 Rule’s imposition of liability upon CAFOs for failing to apply for a permit – regardless of whether they did or did not discharge pollutants to federally regulated waters. 

The National Pork Producers, the American Farm Bureau Federation, the United Egg Producers and several other agricultural groups sued EPA over its 2008 Rule after portions of EPA’s 2003 regulation was struck down by the U.S. Court of Appeals for the 2nd Circuit. In that 2005 decision (Waterkeeper Alliance, Inc. v. EPA), the court ruled that the Clean Water Act 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 Clean Water Act 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 Clean Water Act permit.

Alex BullockAlex Bullock with Kilpatrick Townsend & Stockton LLP, a Washington D.C.-based law firm that has experience in agricultural and environmental issues, offers his commentary about the court’s ruling.

“EPA defined the concept of proposing to discharge so broadly as to encompass almost every CAFO. The Fifth Circuit said no, you can’t define it that broadly. You have to go back to what the Second Circuit said in the Waterkeepers case, which says the only way EPA has jurisdiction is if there is actually a discharge,” says Alex Bullock with Kilpatrick Townsend & Stockton LLP, a Washington D.C.-based law firm that has experience in agricultural and environmental issues.
However, the courts did uphold the requirement from the 2003 Rule that CAFOs that applied for NPDES permits develop and implement nutrient management plans (NMPs).
“The question is the extent of EPA's authority,” Bullock says. “And at the end of the day the court said that it is OK to require [CAFOs] to have a nutrient management plan and then incorporate that plan into the NPDES permit as affluent limitation.”
This means that CAFOs will have to set manure spreading rates in their NPDES permits, giving EPA authority to enforce penalties if the rate is not being followed.
“This is an unanimous decision by a three judge panel, so it is unlikely to be reversed by the entire Fifth Circuit. It is too early to tell whether the government will seek a review by the Supreme Court,” Bullock says.
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