A Feb. 28 decision that affects agriculture has been largely overshadowed by other news. But farms need to know about it.
The 2nd U.S. Circuit Court of Appeals reviewed the U.S. EPA’s 2003 Clean Water Actrule that applies to livestock producers, specifically CAFOs. The suit was filed by an odd marriage that included the environmental groups Waterkeeper Alliance, Sierra Club and the Natural Resources Defense Council – and the American Farm Bureau Federation, National Chicken Council and the National Pork Producers Council.
The groups challenged the EPA’s rule regulating CAFOs’ discharge permits.
The NPDES (National Pollutant Discharge Elimination System) permitting system governs the specific effluent limitations (pollution type and quantity) on each farm.
Most notably, the court ruled EPA (or states like Ohio that maintain permitting authority) must require nutrient management plans and open those plans for public comments.
Before a permit is granted, there must be a “meaningful review” of a CAFO nutrient management plan and the guts of that nutrient management plan must be included in the NPDES permit.
Although aligned with the environmental groups to bring the suit, the farm groups aren’t happy about that part.
The Farm Bureau says it throws “the whole CAFO permitting process into disarray.”
And pork council spokesman Dave Roper, an Idaho producer, said the net effect would be “more litigation, greater record keeping requirements and a slower permitting process.”
The farm groups like the part of the ruling that says “potential to discharge” is no longer a valid reason to require a permit.
Livestock producers will be required to apply for a discharge permit based only on actual, not just potential, discharges.
Manure nutrient plans give all livestock farms – regardless of size – solid business management guidance. A plan details what’s the best way to handle, store and apply manure from your farm, based on site-specific soil and farm system needs.
Public scrutiny is not a bad thing when it comes to CAFOs, but even the court recognized that the writing of nutrient plans is something best left to experts. Let’s hope that admission doesn’t get messed up in the public reviewing process.
“The court’s ruling could give pork producers a whole new set of public and private business partners looking over our shoulders at most aspects of our businesses,” Dave Roper added. “That does not seem legally right to us.”
Of course, like all court decisions except those at the very top, this ruling can be appealed by the government or one of the groups that initiated the suit. No one has said if that’s on the horizon.
And like all court decisions, it’s difficult to know if this ruling targeting the very largest of livestock operations will be interpreted down the road to encompass the very smallest of livestock operations – opening all manure nutrient plans to public review. It could happen.
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