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The 2d U.S. Circuit Court of Appeals has struck down portions of an Environmental Protection Agency (EPA) rule that critics say allowed large animal feeding operations to escape meaningful regulation on discharging pollutants. Waterkeeper Alliance Inc v. U.S. Environmental Protection Agency, No. 03-4470. The 2d Circuit found that the rule, approved by the Bush administration in February 2003, wrongly empowers local authorities to issue permits to large hog and other livestock producers without meaningful review of the producers’ plans. The court, in an opinion by Judge Robert Katzmann, ruled on several challenges brought by an alliance of environmental groups to oversight of concentrated animal feeding operations (CAFOs). The threshold for a “large CAFO,” which varies from animal to animal, includes an operation with 700 mature dairy cows or 55,000 turkeys. Megaoperations, which raise millions of livestock annually, are responsible for the greatest portion of the 500 million tons of animal waste, including manure, produced each year. The waste includes a number of potential pollutants that can reach water supplies in a variety of ways, including the overflow of storage lagoons and by a large operator’s overapplication of manure onto fields. The Clean Water Act prohibits the discharge of any pollutant into navigable waters unless authorized by a permit under the National Pollutant Discharge Elimination System. The permits are issued either by the EPA or by the states through a federally approved system. The 2003 EPA rule requires animal feeding operators to apply for individual pollutant discharge permits or submit a notice of intent for coverage under a general permit. But there is an exception for large concentrated animal feeding operators that do not have to seek coverage under a national pollution discharge elimination permit if they obtain a determination from the “director of the relevant permitting authority” that their operation has “no potential to discharge” manure or process wastewater. The rule requires large feeding operators to develop and implement a nutrient-management plan in order to obtain permits for applying waste to the land. But if the waste is the proper amount for growing crops, any “precipitation-related discharge” is exempt from regulation as “agricultural storm water discharge.” Finally, instead of “quantitative or numerical” effluent limitation guidelines for land application by large operators, the rule calls for “non-numerical” limitations in the form of “best management practices” to be used by CAFOs. In ruling for the environmental petitioners, the 2d Circuit said: “The Clean Water Act demands regulation in fact, not only in principle. Under the Act, permits authorizing the discharge of pollutants may issue only where such permits ensure that every discharge of pollutants will comply with all applicable effluent limitations and standards.” Other sections of the act, Katzmann said, demand that the EPA set conditions to “assure compliance with” all applicable standards, including effluent limitations. And the act allows states to issue pollution discharge permits only where their programs “apply, and insure compliance with” effluent limitations and standards. “By failing to provide for permitting authority review of nutrient management plans, the CAFO Rule plainly violates these statutory commandments and is otherwise arbitrary and capricious under the Administrative Procedure Act,” he said. Moreover, the CAFO rule does nothing to ensure “that each Large CAFO will comply with all applicable effluent limitations and standards,” Katzmann wrote. This is because the “CAFO Rule fails to require that permitting authorities review the nutrient management plans developed by Large CAFOs before issuing a permit that authorizes land application discharges.” -Mark Hamblett

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