The Fifth Circuit Court of Appeals, sitting as the designated court to hear the Multi-District Litigation appeals to six circuit courts of appeal from EPA’s 2008 Concentrated Animal Feeding Operations (CAFO) Rule, recently held that U.S. EPA overstepped its authority when it required all CAFOs to apply for NPDES discharge permits.  CAFOs are usually large animal farms, and were to be subjected to EPA regulation due to discharges of stormwater containing manure.  In language reminiscent of Justice Scalia’s spanking of the Corps of Engineers in the Rapanos wetlands case [when Justice Scalia, speaking for the plurality, admonished the Corps’ efforts to unlawfully expand the Clean Water Act by rejecting the Corps’ position that “Land is Water,” 547 U.S. 715, 734 (2006)], the Fifth Circuit eloquently clipped EPA’s wings when the agency attempted to further enlarge its jurisdiction:

“We conclude that the [Clean Water Act] provides a comprehensive liability scheme, and the EPA’s attempt to supplement this scheme [by adopting the CAFO Rule] is in excess of its statutory authority….Accordingly, we decline to uphold EPA’s requirement that CAFOs that propose to discharge apply for an NPDES permit….Accordingly, the EPA’s authority is limited to the regulation of CAFOs that discharge.” 

National Pork Producers Council et al. v. United States EPA, — F.3d –, 2011 WL 871736 at *9 (5th Cir. Mar. 15, 2011).

In this case, EPA sought by the 2008 CAFO Rule to regulate all CAFOs that “propose to discharge” manure contaminated stormwater to navigable waters under the NPDES permitting process.  EPA contended that CAFOs would be liable on two fronts: for failure to apply for an NPDES permit, and if a discharge occurred, for the discharge itself.  EPA sought to impose liability on CAFOs that “propose to discharge” regardless of whether the operator wants to discharge or is presently discharging. The court disagreed with EPA’s creeping Rule:

 “The 2008 CAFO Rule provides that a CAFO can be held liable for failing to apply for a permit.  The Farm Petitioners contend that EPA does not have the authority to create this liability.  We agree.”

2011 WL 871736 at *11.

Because the CAFO definition in the 2008 Rule encompasses many small animal operations, the Fifth Circuit’s Opinion provides comfort to small operators, and particularly to the horse racing industry, that EPA does not have authority to require NPDES permits, Best Management Practices Plans, or Nutrient Management Plans when stormwater containing manure does not leave the owner’s property (e.g., totally enclosed treatment units or discharges to publicly owned treatment works (POTWs)).  Only an “actual discharge” into navigable waterways triggers the Clean Water Act requirements and EPA’s authority.  2011 WL 871736 at *12.  With this curt Opinion, the Fifth Circuit put an end to a stinky dispute.

For more information on the regulation of CAFOs, please contact Kim Burke or any member of Taft’s Environmental Practice Group.