Court Strikes Down NPDES Permit Requirements

While American Farm Bureau Federation (AFBF) recently argued before a federal appeals court that the U.S. Environmental Protection Agency exceeded its authority in administering its national pollution discharge elimination system (NPDES) permit on large livestock farms, environmental groups claimed the rules were not strict enough. In the end, both sides gained some ground.

The 2nd Circuit Court of Appeals ruled that the U.S. EPA is not authorized under the Clean Water Act to require animal feeding operations to apply for an NPDES permit based only on potential, rather than actual, discharge of manure into U.S. waters.

AFBF President Bob Stallman said the regulations were like requiring a person to have a driver’s license, even if that person never plans to drive.

The livestock industry now must wait to see how the U.S. EPA will react to the decision. The agency has 90 days from the Feb. 28 ruling to file an appeal with the U.S. Supreme Court.

During the Ohio Livestock Coalition annual meeting March 29 in Plain City, environmental attorney Jack Van Kley warned that some EPA officials may attempt to get around the ruling if it stands. He said that by looking at the amount of rainfall received, an EPA official might testify that a producer had to have a discharge based on manure near calf hutches and cow paths, compost and silage runoff, the location of equipment washing stations and the capacity of manure storage structures.

"They have this really expansive view of what a discharge is," he said.

OLC Executive Director David White said he doesn’t think such calculations can demonstrate actual discharge, but livestock producers need to be educated and well-informed about environmental regulatory issues.

Siding with AFBF, the court also upheld the stormwater discharge exemption, meaning that discharges from land application areas caused by precipitation events are not subject to Clean Water Act requirements.

"Farmers need to make sure that when they apply manure in any form that they’re conforming to their permit requirements and or best management practices," White said. "The stormwater exemption is only valid if you follow manure management plans."

In a move that AFBF called overly burdensome and unworkable, the court ruled in favor of environmental groups by requiring that all NPDES permits include nutrient management plans and that those plans be open to public comment.

"This brings additional scrutiny by the public of livestock farms," White said.

Regarding public perception, White said the court set an important precedent by ruling that Concentrated Animal Feeding Operations (CAFO) are agricultural, not industrial, operations. He noted that 85% of CAFOs in Ohio are family owned.

"We’re all for protecting the environment," he said. "But rules have to be reasonable, they have to be scientifically based and they can’t exceed the authority established by the government at the federal or state levels."

Source: AFBF