EPA's CAFO regulation changes challenged

The National Chicken Council and U.S. Poultry & Egg Association have filed suit in the Fifth U.S. Circuit Court of Appeals in New Orleans challenging certain aspects of the Environmental Protection Agency’s new regulation on water pollution discharges from confined animal feeding operations.
The new regulation was issued in response to the industry’s victory in the Second U.S. Circuit Court of Appeals in New York in 2005, in which the court said EPA could not require growers to apply for permits merely because they have a “potential to discharge” pollutants to the waters of the U.S., the release explained.
EPA replaced that portion of the rule with a new provision that would require permits where there is a "proposal to discharge." The lawsuit will challenge the new requirement as not conforming to the Second Circuit’s ruling.
The lawsuit also challenges recent guidance documents, issued by EPA in the form of letters, that interpret the CAFO regulation. According to the release, the letters say a grower has a "proposal to discharge," and therefore must apply for a permit, if poultry housing has a ventilation fan that may potentially exhaust dust or other substances on the ground where rain water might wash them into a ditch leading to surface waters.
NCC and USPOULTRY will argue Congress did not intend to regulate these normal agricultural practices when it enacted the Clean Water Act.