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CAFO rule to comply with ruling of court
Ohio Correspondent

WASHINGTON, D.C. — The Environmental Protection Agency (EPA) is in the process of introducing its proposed Concentrated Animal Feeding Operations (CAFO) rule in response to a 2005 court ruling. The proposed rule is expected to be published in the Federal Register by July 3.

In 2003, the EPA adopted rules regarding the federal Clean Water Act and the National Pollution Discharge Elimination System (NPDES). Those rules were challenged by farm groups who thought the rules were too stringent, as well as by environmental groups who thought the rules were not strict enough. Four separate lawsuits were brought in federal courts around the country, and the court system consolidated all cased to one case in the second circuit.

In February 2005, the court made three major rulings: 1) The court agreed with farm groups that large farms could not automatically be required to apply for a NPDES permit as the EPA proposed; the farm must have a discharge of pollutants from the farm to the water before it could be considered a CAFO; 2) The court agreed with environmental groups that a farm’s Nutrient Management Plan (NMP) could not simply be developed by the farmer and implemented on the farm; the plans must be individually reviewed and approved by the permitting agency; 3) Though the court upheld most of EPA’s technical rules, it remanded back to the EPA for further development and reconsideration of some of EPA’s technical standards, such as allowing farms to comply with the “no-discharge standard” by designing manure pits to withstand a 100-year, 24-hour record rainstorm.

According to American Farm Bureau Federation (AFBF), the new proposed CAFO rule appears to comply with the courts ruling and commended the EPA, saying the proposed rule would make it easier for farmers and ranchers to operate without onerous federal regulation.

“AFBF will continue to analyze the fine points of the proposed rule, and will submit extensive comments to EPA,” said AFBF President Bob Stallman. “But, at first glance, it looks like the agency did what it needed to do in order to bring federal CAFO regulations into line with the court’s interpretation of the Clean Water Act. We applaud EPA for following the Second Circuit’s ruling.”

AFBF was among the farm groups who challenged the 2003 CAFO rule in court.

“Some groups are now raising the same arguments in response to this proposal that were repeatedly raised and rejected in court,” Stallman said. “Neither side won every argument, but livestock producers intend to comply with the ruling and others should, as well. It’s time to move on and implement the ruling.”

EPA’s proposal also complies with the agency’s original interpretation that limits the agricultural stormwater exemption. CAFOs must maintain Nutrient Management Plans, apply nutrients at agronomic rates and maintain adequate records. In addition, the proposed rule requires CAFOs that obtain discharge permits to submit their NMP with their permit application, requires state review and approval and provides the public a chance to review and comment on NMPs.

“This proposal includes the requirement for large livestock producers to have NMPs, which will help ensure that they are applying nutrients and managing their operations in a way that minimizes the environmental impact,” Stallman said. “AFBF supports that and will work with farmers to ensure they know that they need to have these plans and follow them.”

Following the proposed rule being published in the Federal Register, the EPA will provide a 45-day comment period and hold public listening sessions around the country.

This farm news was published in the July 5, 2006 issue of Farm World, serving Indiana, Ohio, Illinois, Kentucky, Michigan and Tennessee.