Court rules EPA cannot require permits from livestock operators | TSLN.com
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Court rules EPA cannot require permits from livestock operators

OMAHA (DTN) – EPA cannot require livestock operators to obtain Clean Water Act permits unless or until they discharge manure into U.S. waterways, according to a unanimous ruling Tuesday, March 15, by the three-judge U.S. Court of Appeals for the Fifth Circuit in New Orleans.

The National Pork Producers Council, the American Farm Bureau Federation, the United Egg Producers and several other agricultural groups sued EPA on its so-called confined animal feeding operations, or CAFO, rule.

That rule was issued in 2008 after EPA’s initial 2003 regulation was struck down by the U.S. Court of Appeals for the Second Circuit in New York City in 2005. In that decision, the court ruled that the Clean Water Act requires permits only for livestock producers who actually discharge into waterways.



However, EPA had sought to require permits even for operations that had a “potential” to discharge.

In the latest ruling, the Fifth Circuit Court stated, “We conclude that the CWA (Clean Water Act) provides a comprehensive liability scheme, and the EPA’s attempt to supplement this scheme is in excess of its statutory authority.”



“Accordingly, we decline to uphold the EPA’s requirement that CAFOs that propose to discharge apply for an NPDES (National Pollutant Discharge Elimination System) permit,” the court ruling said. “At first blush it seems that the EPA, by regulating CAFOs that ‘propose’ to discharge, is regulating CAFOs that want to discharge. However, as the Farm Petitioners’ counsel explained at oral argument, the EPA’s use of the term ‘propose’ is not the same as the common understanding of the term ‘to form or declare a plan or intention.’

“These cases leave no doubt that there must be an actual discharge into navigable waters to trigger the CWA’s requirements and the EPA’s authority. Accordingly, the EPA’s authority is limited to the regulation of CAFOs that discharge. Any attempt to do otherwise exceeds the EPA’s statutory authority. Accordingly, we conclude that the EPA’s requirement that CAFOs that ‘propose’ to discharge apply for an NPDES permit is ultra vires and cannot be upheld.”

OMAHA (DTN) – EPA cannot require livestock operators to obtain Clean Water Act permits unless or until they discharge manure into U.S. waterways, according to a unanimous ruling Tuesday, March 15, by the three-judge U.S. Court of Appeals for the Fifth Circuit in New Orleans.

The National Pork Producers Council, the American Farm Bureau Federation, the United Egg Producers and several other agricultural groups sued EPA on its so-called confined animal feeding operations, or CAFO, rule.

That rule was issued in 2008 after EPA’s initial 2003 regulation was struck down by the U.S. Court of Appeals for the Second Circuit in New York City in 2005. In that decision, the court ruled that the Clean Water Act requires permits only for livestock producers who actually discharge into waterways.

However, EPA had sought to require permits even for operations that had a “potential” to discharge.

In the latest ruling, the Fifth Circuit Court stated, “We conclude that the CWA (Clean Water Act) provides a comprehensive liability scheme, and the EPA’s attempt to supplement this scheme is in excess of its statutory authority.”

“Accordingly, we decline to uphold the EPA’s requirement that CAFOs that propose to discharge apply for an NPDES (National Pollutant Discharge Elimination System) permit,” the court ruling said. “At first blush it seems that the EPA, by regulating CAFOs that ‘propose’ to discharge, is regulating CAFOs that want to discharge. However, as the Farm Petitioners’ counsel explained at oral argument, the EPA’s use of the term ‘propose’ is not the same as the common understanding of the term ‘to form or declare a plan or intention.’

“These cases leave no doubt that there must be an actual discharge into navigable waters to trigger the CWA’s requirements and the EPA’s authority. Accordingly, the EPA’s authority is limited to the regulation of CAFOs that discharge. Any attempt to do otherwise exceeds the EPA’s statutory authority. Accordingly, we conclude that the EPA’s requirement that CAFOs that ‘propose’ to discharge apply for an NPDES permit is ultra vires and cannot be upheld.”


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