Federal appellate court rules against EPA provision
At the same time, the Court upheld a provision in the rule that allows permitting authorities to regulate a permitted CAFO’s land application and include them in a CAFO’s National Pollution Discharge Elimination System (NPDES) permit.
The challenge to the rule was brought by National Pork Producers, the American Farm Bureau Federation, Oklahoma Pork Council, United Egg Producers, North Carolina Pork Council, National Chicken Council, U.S. Poultry and Egg Association, Dairy Business Association and the National Milk Producers Federation.
The 2008 rule was issued after EPA’s core provision in an earlier 2003 regulation was struck down by the U.S. Court of Appeals for the 2nd Circuit. 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.
In arguments before the 5th Circuit, the petitioners 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. It also argued that the “failure to apply” violation creates substantial economic pressure to apply for a CWA 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 the petitioners’ arguments ruling on the “duty to apply” provision that previous court cases “leave no doubt that there must be an actual discharge … to trigger the CWA’s requirements and EPA’s authority.” It also struck down the CAFO rule’s “failure to apply” provision, stating that its imposition is “outside the bounds of the CWA’s mandate.”