Fifth Circuit Rules EPA Cannot Require Clean Water Permits For Livestock Farmers Unless Discharging into U.S. Waters
Foster Swift Agricultural Law Update
On March 15, 2011, the Fifth Circuit Court of Appeals vacated portions of the EPA’s 2008 Rule that required Concentrated Animal Feeding Operations ("CAFOs") that propose to discharge to apply for a National Pollutant Discharge Elimination System (NPDES) permit, and the provisions imposing liability for failure to apply for a permit. However, the court upheld the requirement that CAFOs discharging manure to waters of the United States are required to apply for a NPDES permit, and upheld the ability to regulate CAFO land application of manure. Land application requirements may be included in a NPDES permit.
The suit stemmed from EPA’s 2003 regulation revisions that implemented the Clean Water Act’s oversight of CAFOs, which required all CAFOs to apply for a NPDES permit unless the CAFO obtained a "no potential to discharge" determination from the EPA. After the 2003 revisions were challenged in court, the EPA revised its regulations in 2008 by only requiring a NPDES permit application if the CAFO "discharges or proposes to discharge pollutants." Liability existed for CAFOs failing to apply for a permit. The EPA also issued guidance letters. Groups including the National Pork Producers Council, American Farm Bureau Federation, United Egg Producers, and National Milk Producers Federation challenged the procedures in numerous courts nationwide. The cases were consolidated and the Fifth Circuit was randomly selected by the Judicial Panel on Multi-district Litigation to review the challenges.
While the Fifth Circuit’s March 15, 2011 decision benefits CAFOs on the federal level, the March 29, 2011 Michigan Court of Appeals decision upheld Michigan’s CAFO rule, which is more restrictive than the federal requirements. According to the Michigan Farm News, Michigan Farm Bureau’s Legal Counsel Andy Kok said appealing the decision to the Michigan Supreme Court is being considered, but that action would not be decided until all parties in the lawsuit were consulted. We will continue to monitor the status of this litigation and Michigan Rule 2196.