WASHINGTON — In a unanimous verdict, a federal court of appeals ruled March 15 that the Environmental Protection Agency cannot require livestock farmers to apply for Clean Water Act permits unless their farms actually discharge manure into U.S. waters.

(Read the complete Fifth Circuit Court of Appeals ruling in this .pdf.)

Background

In the 2008 Clean Water Act CAFO regulation, the EPA required that Concentrated Animal Feeding Operations, or CAFOs, that discharge or propose to discharge pollutants to the waters of the U.S. obtain a Clean Water Act National Pollutant Discharge Elimination System (NPDES) permit.

The EPA noted that CAFOs “propose to discharge” if they are designed constructed, operated or maintained “such that a discharge would occur.”

The agency also established a penalty for failure to apply for a NPDES permit for CAFOs that discharge without a permit.

The 2008 regulation also gave a CAFO the option to make a showing to the EPA that the CAFO is designed, constructed, operated or maintained in a manner that the CAFO will not discharge. A CAFO that succeeded in making the showing could apply for a voluntary certification. If a certified CAFO did subsequently discharge pollutants, the CAFO would not be subject to the penalty for the failure to apply for a NPDES permit.

Ruling

The Fifth Circuit agreed with the plaintiffs that the Clean Water Act does not include a “duty to apply” for a NPDES permit before a discharge occurs.

The ruling was welcomed by the American Farm Bureau Federation, National Pork Producers Council and several other agriculture groups that filed suit against EPA in the U.S. Court of Appeals for the Fifth Circuit.

The Fifth Circuit Court of Appeals concluded, “The CWA provides a comprehensive liability scheme and the EPA’s attempt to supplement this scheme is in excess of its statutory authority.”

According to the ruling, non-discharging CAFOs (confined animal feeding operations) do not need permit coverage.

In addition, CAFOs cannot face separate liability for “failure to apply” for permit coverage, as EPA’s rule provided. Instead, where a CAFO does not seek permit coverage, the Clean Water Act imposes liability only for discharges that occur from the unpermitted CAFO.