Bay Journal - Article: Ruling makes it harder to regulate large animal operations’ discharges

Ruling makes it harder to regulate large animal operations’ discharges

Court says the EPA cannot require a permit just because the potential to discharge exists

By Rona Kobell on May 01, 2011

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It's unclear what the court's decision will mean for the areas of the watershed where animal farming dominates, such as the Delmarva Peninsula, the Shenandoah Valley and parts of New York and Pennsylvania. (Dave Harp)

A new ruling by the judges of the U.S. Court of Appeals for the Fifth Circuit may make it harder for the EPA to track and regulate pollution from animal farms.

The court ruled that the Clean Water Act did not give the EPA the authority to require the farms, known as Concentrated Animal Feeding Operations, to obtain discharge permits on the presumption they would discharge pollution to the waters of the state.

Since 2008, the EPA has required all animal farms that qualified as CAFOs to get permits whether they discharged pollution to public water or not. The EPA claimed a farm's potential to discharge pollution was all that was needed to require a permit.

The court disagreed. It declared that the farms only needed permits if they actually discharged - a violation of the Clean Water Act. The likelihood that they would discharge was not enough to trigger the permitting process, which farmers find cumbersome and expensive.

The EPA's assumption that a farm with no record of discharges would violate the law in the future was, in the judges' words, "an attempt by the EPA to create from whole cloth new liability provisions. The CWA simply does not authorize this type of supplementation to its comprehensive liability scheme."

The permits help the agency track and regulate potential polluters. The court shifted the burden of figuring out who had the potential to discharge, or was discharging, back to the government.

Few farms actually propose discharges directly to public water. However, discharges may happen if the land is such that a discharge is inevitable. That is particularly true on the Delmarva Peninsula, where the water table is low and the land is ditched. One heavy rainstorm can move chicken manure into a stream that leads to the Chesapeake Bay.

The ruling is only binding for now in the Fifth Circuit, which covers Louisiana, Mississippi and Texas. So, it's unclear what the court's decision will mean for the areas of the watershed where animal farming dominates, such as the Delmarva Peninsula, the Shenandoah Valley and parts of New York and Pennsylvania.

But the National Pork Producers Council, a plaintiff in the lawsuit, called the decision a "major victory" for farmers, who felt the paperwork was burdensome and were attempting not to discharge in their operations.

"I don't know if it changes the fact that farmers won't apply for permits, I don't think they were going to anyway," said Michael Formica, the pork producers' chief environmental counsel. "Having a permit does not improve the environment. If you have a permit, you're not allowed to discharge. If you don't have one, you're not allowed to discharge."

The real disadvantage to applying for permits, Formica said, is that paperwork errors are common, and environmental groups can seek the plans through a public information request, comb through them, and mount legal and enforcement challenges - a process he calls "legalized extortion."

The American Farm Bureau Federation, another plaintiff in the lawsuit, said it was still trying to determine the ruling's significance.

"We feel this is an extremely significant decision, and we're still analyzing the details of what it's going to mean," said Don Parrish, the federation's senior director of regulatory relations.

EPS Region 3 officials collaborated with those at the agency's headquarters to issue this statement on the ruling:

"Region 3's practice regarding CAFO permitting or compliance matters has been based on the "duty to apply" for permits (that is, the need for permit coverage) on actual discharges from operations, rather than planned or projected discharges. Thus we believe there is no significant impact on the work we do in this sector that is done in close cooperation with state permitting agencies."

The agency did not say if it would appeal, but said it is "currently reviewing" the decision and its potential implications.

The EPA has been sparring in the courts with both environmental groups and the farm lobby for the better part of a decade over the definition of a CAFO and how the Clean Water Act should be enforced when it comes to animal feeding operations.

In 2003, the agency defined a CAFO as an operation that raised more than 125,000 chickens, 1,000 cattle or 2,500 swine. That applied to very few farms in the Bay watershed. But the definition went a step further. The EPA in 2008 put out a new set of regulations that required Chesapeake Bay farmers to apply for federal CAFO permits if they discharged, no matter the size. It also said that if the farm didn't discharge now, but might in the future, it needed a CAFO permit.

The Waterkeeper Alliance attempted to persuade the EPA to make their language even more precise. Instead of saying the farms proposed to discharge, it wanted the agency to presume that the farms would discharge because of their topography and the fact that many chicken farms keep uncovered manure on the farms. Manure is rich in both phosphorus and nitrogen, and when it runs into streams it can cause algae blooms and low-oxygen zones that stress fish and other marine life. The EPA declined to make the change.

The new definition greatly changed the number of chicken farms designated as CAFOs in Maryland, which did not have a CAFO law three years ago. In 2008, just 12 farms in the state fit the definition. Now, the Maryland Department of the Environment estimates that 426 farms in the state will fall under the CAFO designation. The new rules mean more paperwork for farmers and increased costs, because farmers now need a certified nutrient management plan. Virginia and Pennsylvania already had CAFO laws, so farmers there didn't experience major changes.

The pork and poultry producers were in court in Louisiana challenging the 2008 law. They lost part of the case; they were also trying to forbid the EPA from regulating dust emissions from animal operations. The companies will still need permits for the release of dust through their ventilation fans.

Scott Edwards, senior attorney for the Waterkeeper Alliance, said the ruling "doesn't change much on the ground." It doesn't give the industry permission to pollute, and farmers who have already gone through the CAFO permitting process may choose to keep their permits current anyway because, if they have a discharge, the regulators may go easier on them.

"If a farmer discharges with no permit, he's in violation of the Clean Water Act. If he discharges with a permit, he is in violation of both the permit and the Clean Water Act," Edwards said. "The on-the-ground impact of this decision, as it relates to how much this industry gets to pollute, is unchanged. This industry is not allowed to pollute."

The real problem, he says, is that no one is standing out in the rain to determine if a farm is discharging -and as a result, no one is enforcing the law. Moreover, he says, the paperwork farms had to file when they became CAFOs gave the EPA useful information about pollutants and more control over the operations. The agency will have to work harder now to learn about the operations without those mandatory applications.

States can also choose to enforce their own clean water laws or CAFO laws and override the federal statute if their environmental protections are stronger. Such was the case in Michigan, where the courts decided to uphold Michigan's law on CAFOs. That law says farms that propose to discharge must file for permits.

"The Clean Water Act provides a floor that they can't go below, but the states can always be more strict," said Timothy Lundgren, a Grand Rapids attorney who represents farmers and food processors in the state. "In Michigan, the courts have said, 'we're going to uphold Michigan's law, because it's broader.'"

Lundgren said the proposed discharge standard never struck him as particularly fair, because "we don't treat other industries that way."

Edwards applauds Michigan for sticking to its tougher rule. But, he worries the 5th Circuit Court's decision means the industry will simply move to the states that refuse to get tough in the absence of an across-the-board federal standard.

"Michigan got tough...the states can follow suit if they want, but they'll need the political will to do that," Edwards said. "It's created this incentive for this industry to shop around for states where they can get away with murder."