CAFOs win with NC decision to drop NPDES permits

Stormwater exemption applies to animal feeding operations instead of requiring extensive NPDES permitting.

For more than a decade, the North Carolina Department of Environmental Quality (NCDEQ) has been focused on requiring extra permits for concentrated animal feeding operations (CAFOs) rather than allow them to qualify for the agricultural stormwater exemption. That looks to be changing as the DEQ has dropped its challenges to the permitting.

In a statement May 5, the DEQ stated it was reversing the previous administration’s decision to bring poultry operations under federal regulation. “The state environmental department will protect the agriculture industry from federal overreach by requiring poultry operations to be permitted by the state rather than by federal requirements,” the notice said.

Since 2005, Rose Acre Farms has had, under protest, a Clean Water Act non-discharge National Pollutant Discharge Elimination System (NPDES) permit instead of a North Carolina permit, which all other egg farms in North Carolina are allowed to use. After reading a detailed account of Rose Acre's defense, the NCDEQ dropped its requirements and demands of the past 15 years and said it will allow the agricultural runoff exemption to be applied to Rose Acre and other similar entities.

“I think we’ve finally convinced the powers to be we are correct after all these years,” said Gary Baise, special counsel for the North Carolina Poultry Federation.

Lawyers for the North Carolina Poultry Federation said the decision will have important implications for CAFOs in the area, including dairy, swine and poultry facilities. Baise helped draft an argument that depended greatly on a recent district court case in West Virginia, Alt vs. EPA, which confirmed that ordinary stormwater from Lois Alt’s farmyard is exempt from NPDES permit requirements.

Beginning in 2002, Rose Acre decided to construct and operate an egg farm in Hyde County, N.C. Since 2003, however, the NCDEQ has required that Rose Acre have an NPDES permit, even though every other egg farm in North Carolina was covered by the exemption. The NCDEQ required Rose Acre to renew its permit in 2009 because the Environmental Protection Agency had amended its rules in 2008 and again required a non-discharging CAFO to have an NPDES permit. This 2010 permit required numerous onerous best management practices dealing with ammonia air emissions from Rose Acre’s barns.

Rose Acres has been inspected annually for more than 12 years, and the NCDEQ has not found any violations or discharges with any of those inspections. In 2014, EPA also inspected the egg farm and found no violations or discharges.

Baise said in EPA’s own language, it disagrees that the definition of production area explicitly includes the entire farmyard. EPA has included a clear definition as to the specific aspects of an operation that are considered within the production area, including the animal confinement area, manure storage area, raw material storage area and waste containment area.

The notice from NCDEQ said state regulators are implementing the federal judge decision, which found that the federal EPA overstepped its authority by requiring a federal permit for rain water runoff from certain poultry and agricultural lands. North Carolina already requires state permits for water quality protection and manure management.

“The court ruled that the federal EPA and special-interest groups misinterpreted federal clean water regulations by calling for poultry operations to hold a federal permit. The EPA did not file an appeal, indicating that it agrees with the federal judge’s ruling,” NCDEQ said.

Although the decision isn’t legally binding, it does add another layer of support and precedence to an ongoing attempt by environmental groups to challenge whether agricultural stormwater is, indeed, exempt from Clean Water Act regulations.

Baise noted that Alt's case and this decision by a state body make two decisions in the same court of appeals region with similar findings. “This is positive for agriculture,” Baise said, as it allows CAFOs with multiple buildings to not have a CAFO permit for normal runoff. In North Carolina alone, it could have required 5,000 additional permits to be issued.

Donald R. van der Vaart, secretary of the state environmental agency, said, “Similar to the (EPA) waters of the United States rule that infringes on property rights and the power plan that would increase energy prices, we believe that decisions about how to protect North Carolina’s environment should be made in North Carolina, not in Washington, D.C.”

Environmental groups could bring an action against the NCDEQ by saying it made a wrong decision in using the Alt case as a justification for dropping the permitting requirements.

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