The National Chicken Council and the U.S. Poultry and Egg Association say they have filed suit in the Fifth U.S. Circuit Court of Appeals in New Orleans to challenge certain aspects of the Environmental Protection Agency's new regulation on water pollution discharges from confined animal feeding operations. The new provision would require permits where there is a "proposal to discharge" pollutants into U.S. waters.
The regulation was changed in response to a 2005 ruling by the Second U.S. Circuit Court of Appeals in New York that said EPA could not require growers to apply for permits merely because they have a "potential to discharge" pollutants to U.S. waters. The NCC/USPOULTRY lawsuit contends the new requirement does not conform to the Second Circuit's ruling.
In addition, the lawsuit challenges recent guidance documents, issued by EPA, that interpret the CAFO regulation. According to NCC and USPOULTRY, the guidance letters essentially say a grower has a "proposal to discharge" and therefore must apply for a permit, if poultry housing has a ventilation fan that may potentially exhaust dust or other substances on the ground where rain water might wash them into a ditch leading to surface waters. NCC and USPOULTRY argue that Congress did not intend to regulate these normal agricultural practices when it enacted the Clean Water Act.