Second Circuit Denies Environmental Petitioners' Request for Rehearing of Clean Water Act Case

Crowell & Moring Declares Win for American Farmers

Washington, D.C. – May 4, 2005: The U.S. Court of Appeals for the Second Circuit yesterday upheld a landmark ruling affecting concentrated animal feeding operations (CAFOs) nationwide when it denied a request for rehearing submitted by environmental petitioners, including the Waterkeeper Alliance and Sierra Club. The groups had requested a rehearing in the litigation challenge to EPA's Clean Water Act regulations for CAFOs. The ruling is good news for American farmers, and for members of the National Pork Producers Council, the American Farm Bureau Federation, and the National Chicken Council.

“Farmers have been fighting to prevent these unwarranted regulations for more than two years, and the court's ruling provides a welcome resolution for thousands of farms throughout America. We are pleased to see that the court is standing by its initial ruling and the correct interpretation of the Clean Water Act,” said Richard Schwartz, Crowell & Moring attorney for the National Pork Producers Council.

In February, the court had ruled that the Clean Water Act on its face only regulates discharges, so EPA could not force an operation to obtain a permit under the Clean Water Act unless that operation discharges pollutants into navigable waters. Had the court not kept EPA within the bounds of the Clean Water Act in this ruling, even farming operations that have never discharged, have no drainage into surrounding waters, and are located nowhere near surface waters would be subjected to needless EPA regulations. The ruling allows states to exercise their primary authority to manage farm permit issues.

The environmental petitioners argued that the court should reverse or "clarify" its February ruling on the "duty to apply" for an NPDES permit. By denying the rehearing petition, the court upholds its prior ruling that EPA cannot require CAFOs to apply for NPDES permits in the absence of an actual discharge of pollutants to navigable waters. The court also refused to "clarify" its holding to require CAFOs to have their nutrient management plants incorporated into NPDES permits to qualify for the NPDES exemption for "agricultural stormwater."

Schwartz added, “Farmers that do not discharge into our nation's waters should not be required to obtain a discharge permit, and farmers do not need a discharge permit to qualify for an exemption from discharge permitting. This ruling lets the state governments and farmers continue to work together to protect America's rural environment.”

Crowell & Moring attorneys Richard Schwartz, along with Ellen Steen and Kirsten Nathanson, represented the National Pork Producers Council in the Second Circuit litigation and successfully argued that EPA's “duty to apply” was unlawful. Schwartz presented oral argument on behalf of all “Farm Petitioners” in the case (including the American Farm Bureau Federation and the National Chicken Council).