Friday, March 18, 2011

How does the National Pork v. EPA case impact Hoosier farmers?

On March 15, 2011, the 5th Circuit Court of Appeals, sitting in New Orleans, Louisiana, issued a ruling in the case titled: National Pork Producers Council v. U.S. E.P.A.  Although there are a number of holdings in the decision, one in particular has generated a lot of interest in agricultural circles—the EPA cannot require a CAFO that “proposes” to discharge to obtain a NPDES (or CAFO) permit.  Only those CAFOs that actually discharge manure into navigable waters must apply for CAFO permits.  Likewise, a CAFO operator that does not discharge faces no liability for his or her “failure to apply” for a CAFO permit.

What does this mean for CAFOs in Indiana?  Not much.  At least not yet.  In Indiana, the EPA typically does not regulate CAFOs, Indiana’s largest livestock producers. (Although I have been present for EPA inspections of Indiana farms).  Instead, the EPA has delegated that authority to IndianaIndiana has statutes and regulations implementing the federal CAFO rule. Though the federal CAFO rule my be partially struck down, Indiana’s CAFO rule remains on the books unless and until an Indiana court similarly strikes down the equivalent provisions.  That has not happened.  Thus, for the time being, Indiana’s farms that meet the threshold livestock numbers for entry into the CAFO program must apply for a CAFO permit, even if they do not propose to discharge.  Stay tuned.  

Update March 25, 2011:  I understand that IDEM is currently reviewing this case and determining how it should impact the upcoming revised CAFO regulations.  

The complete ruling from the 5th Circuit can be found at:

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