Tuesday, October 3, 2023 | Back issues
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Non-Polluting Feedlots Don’t Need EPA Permits

(CN) - Clean Water Act permits are only necessary for livestock farmers who must discharge manure - not for those whose runoff is limited to storm water or other operations, the 5th Circuit ruled.

Nine groups representing pork and other farmers had filed suit in several jurisdictions against the Environmental Protection Agency's insistence that all livestock operations were potential points of discharge of contaminated water. If farmers failed to apply for a permit for those potential discharges, subsequent discharges could result in hefty fines and even incarceration.

The New Orleans-based federal appeals court, which was randomly chosen to hear the consolidated case, vacated the challenged provision on March 15. "Without a discharge, the EPA has no authority and there can be no duty to apply for a permit," Judge Carl Stewart wrote for the court's three-judge panel.

Since the Clean Water Act was passed with the intention to regulate actual pollutant discharges, the EPA cannot presume that every farm that could have a discharge was in fact "proposing" such a discharge.

The difference between actual discharges of pollutants was key, the court concluded. "The EPA cannot impose a duty to apply for a permit on a Concentrated Animal Feeding Operation that 'proposes to discharge' or any CAFO before there is an actual discharge," Stewart wrote. "However, it is within the EPA's province, as contemplated by the CWA, to impose a duty to apply on CAFOs that are discharging."

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