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Court Issues Opinion on CAFO Rule

April 1, 2011

On March 15th, the United States Court of Appeals for the 5th Circuit in New Orleans issued a unanimous ruling that the Environmental Protection Agency (EPA) cannot require livestock farmers to apply for Clean Water Act (CWA) permits unless their farms actually discharge manure into United States waters. In the ruling, the Court concluded: “The CWA provides a comprehensive liability scheme and the EPA’s attempt to supplement this scheme is in excess of its statutory authority.”

According to the ruling, non-discharging confined animal feeding operations (CAFOs) do not need permit coverage. In addition, CAFOs cannot face separate liability for “failure to apply” for permit coverage, as EPA’s rule provided. Instead, where a CAFO does not seek permit coverage, the CWA imposes liability only for discharges that occur from the unpermitted CAFO. The National Milk Producers Federation was a participant in the lawsuit.