Michael Best & Friedrich LLP: In a wide ranging, 58-page petition criticizing the U.S. Environmental Protection Agency's (EPA) (and various state counterpart agencies') approach to the regulation of Concentrated Animal Feeding Operations (CAFOs) under the Clean Water Act, nearly three dozen NGOs filed a petition on March 8, 2017 urging EPA to undertake comprehensive rulemaking to substantially revise its federal regulations on the subject. Among other things, the petition requests a rebuttable evidentiary presumption that all large CAFOs discharge pollutants to jurisdictional waters, which would directly conflict with controlling legal precedent regarding the limits of EPA's jurisdiction under the federal law. The petition also seeks a severe limitation of a statutory exemption for agricultural runoff caused by storm events, and the extension of the rule to hold so-called "integrators" responsible for discharges from unrelated contract livestock producers. The petition attempts to reignite the debate concerning the adequacy of EPA rules applicable to large livestock operations, a debate that has been the subject of prior court decisions at the federal circuit court of appeals level. The petition is unlikely to stir any interest in the Trump administration or EPA Administrator Scott Pruitt who recently vowed to return the agency to the "rule of order" and follow established court precedents and Congressional directives.
Large CAFOs are livestock operations that confine more than 1,000 animal units (a calculation of species-specific weight) for more than 45-days in any 12-month period. The recent trend in livestock production has been fewer farms that manage more animal numbers. This production method boasts management efficiencies as a result of scale, and proponents argue environmental impacts from livestock can be better managed via confinement and containment than rather dispersion across the country. This production method has brought with it opposition from those who live nearby the operations as well as those opposed to the scale of production.
The petition argues that substantial rule revisions are required to address everything from faulty manure storage and nutrient management technical standards to discharges of heavy metals and pharmaceuticals it alleges are present in livestock excrement. The petition alleges the federal response is needed to "fill the gaps" that state level permitting programs leave due to inadequate resources and permitting programs.
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