On Tuesday, March 15, the federal Fifth Circuit Court of Appeals issued a ruling in the lawsuit National Pork Producers Council v. EPA, in which livestock and poultry trade associations challenged the Environmental Protection Agency (EPA) 2008 Clean Water Act regulation for Confined Animal Feeding Operations (CAFOs).  The plaintiffs included the National Pork Producers Council, American Farm Bureau Federation, Oklahoma Pork Council, United Egg Producers, North Carolina Pork Council, National Chicken Council, U.S. Poultry & Egg Association, Dairy Business Association, Inc. and National Milk Producers Federation.

In the 2008 Clean Water Act CAFO regulation, the EPA required that CAFOs which 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 with effluent limitations and other requirements for controlling water pollution from animal manure and other CAFO wastes.  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 which 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.

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.  Among other precedents, the Fifth Circuit relied on the Second Circuit ruling in Waterkeeper Alliance, Inc. v. EPA that the EPA could not require CAFOs that have not discharged pollutants to obtain a NPDES permit.  But the Fifth Circuit ignored a footnote in the ruling in which the Second Circuit invited the EPA to establish a regulatory presumption that large CAFOs discharge pollutants.  Instead, the Fifth Circuit ruled that EPA does not have any regulatory authority over a CAFO before there is a discharge of pollutants.

The Fifth Circuit also relied on the ruling in Service Oil, Inc. v. EPA, in which the Eighth Circuit Court of Appeals  concluded that without a discharge of pollutant there is no point source for EPA to regulate.  That court, however, made clear that the polluter would be liable under the Clean Water Act for discharging pollutants without a NDPES permit.  The Eighth Circuit emphasized, “Prudent builders know that permits do not issue over night and that storm water discharges can happen any time after the start of construction makes the site a point source.  They will apply and obtain permits before starting construction to avoid penalties for unlawful discharges that may prove to be severe.  That is the regulatory regime Congress crafted.”

It remains to be seen whether CAFO operators will choose to be prudent or instead to discharge pollutants in violation of the Clean Water Act in the hope that they will not be caught and penalized.

The plaintiff hog, dairy, and poultry associations also challenged that requirement of the 2008 CAFO regulation that a CAFO nutrient management plan (NMP) be incorporated as an enforceable component of a CAFO’s NPDES permit and other permit requirements for land application of CAFO waste.  The Fifth Circuit refused to address these issues on the grounds that they were time barred because the issues arose in the CAFO regulation issued in 2003 and were also litigated in the case Waterkeeper Alliance, Inc. v. EPA by environmental plaintiffs seeking inclusion of NMPs in permits.  The livestock and poultry association plaintiffs had the opportunity during that case to respond to the arguments for including NMPs in CAFO permits.

In addition to the CAFO regulation issues, poultry association plaintiffs challenged EPA guidance letters that poultry growers must apply for a NPDES permit for discharges to water of manure or poultry litter released from poultry houses by confinement house ventilation fans.  The Fifth Circuit determined that under the Clean Water Act, it could review the guidance letters only if they created new legal consequences or affected the poultry petitioners’ rights or obligations.   The court found that the guidance letters merely restated the Clean Water Act’s prohibitions on discharging pollutants without an NPDES permit and, therefore, the court did not have jurisdiction over the letters.