Last week, the 2nd U.S. Circuit Court of Appeals in New York issued a landmark environmental ruling affecting animal feeding operations nationwide. Attorney Richard Schwartz of Crowell & Moring, who represented the National Pork Producers Council in the case, says the ruling prevents farmers from be subjected to needless regulations.
At issue were challenges by citizen and farming organizations to EPA's revised Clean Water Act regulations for concentrated animal feeding operations (CAFOs).
Schwartz says with the ruling, "A cow farm that doesn't discharge into our waters can't be needlessly made to comply with regulations under the guise of the EPA's Clean Water Act."
Schwartz adds, "Farmers go to great lengths to protect the environment, and there are effective regulations in place in the states and at the EPA to protect our waters. This ruling protects our nation's farmers from erroneous red tape while still ensuring adequate protection of the environment."
The court ruled on three important issues:
The Court ruled that the Clean Water Act on its face only regulates discharges. Therefore, the EPA cannot force an operation to obtain a permit under the Clean Water Act unless that operation discharges materials into navigable waters. Had the court not supported farmer's rights in this ruling, even farming operations that have no drainage into surrounding waters or are located nowhere near surface waters would be subjected to needless regulations by the federal agency. This ruling affirmed states' rights to manage farm permit issues.
The Court also ruled that operating without a permit cannot be a violation of the Clean Water Act if the farm does not discharge into water.
The Court also ruled that the EPA cannot issue a CAFO general permit without reviewing the CAFO's proposed Nutrient Management Plan (NMP) and making the plan available for public review and comment. Previously, CAFOs and certain other operations subject to general permitting were able to proceed with growth projects providing the NMP or other implementation plan fit within EPA regulations, without EPA or public review of the plan. Because the Second Circuit's decision may require a potentially lengthy and burdensome review process, farmers, cities, and others will likely face severe delays in obtaining general permits for the operation of CAFOs, the construction of sewer systems, and other activities.
Regarding this part of the ruling, Schwartz says, "Changing the permit process in this way threatens to overwhelm the EPA and state agencies trying to issue clean water permits to farmers, municipalities, and other industries. It will make it hard for business to operate by causing delays of months and even years."