On March 15, 2011, the United States Court of Appeals for the Fifth Circuit, following transfer from the Judicial Panel on Multi-District Litigation (compiling appeals filed in the Fifth, Seventh, Eighth, Ninth, Tenth and D.C. Circuits), issued its decision in the challenge to EPA’s 2008 Concentrated Animal Feeding Operation (CAFO) rule revisions by many agricultural associations (“Farm Petitioners” including the Oklahoma Pork Council, American Farm Bureau, Dairy Business Association and National Chicken Council), with environmental association intervenors (“Environmental Intervenors” including the National Resources Defense Council, Sierra Club and Waterkeeper Alliance). The 2008 CAFO rule revisions were adopted by EPA in resolving the mandates of the Second Circuit following Waterkeeper Alliance, Inc. v. EPA, 399 F.3d 486 (2n Cir. 2005) (resolving challenges to EPA’s 2003 CAFO rule revisions).

With this decision, the Fifth Circuit held that EPA exceeded its authority under the Clean Water Act by requiring all CAFOs to apply for a CWA discharge permit when there is no discharge to navigable waters, and with respect to CAFOs that have not discharged to navigable waters, vacated both the requirement to apply for a CWA permit where there are no discharges, and vacated provisions imposing liability for failing to apply for an NPDES permit. Specifically, the Fifth Circuit stated, “For more than 40 years, the EPA’s regulation of CAFOs was limited to CAFOs that discharge.” The 2003 rule marked the first time that the EPA sought to regulate CAFOs that do not discharge. This attempt was wholly rejected by the Second Circuit in Waterkeeper.

Article authored by McAfee & Taft Attorney: Mary Ellen Ternes.