Whether for water, land, or air, tougher environmental regulations are headed the way of livestock producers, and some very soon. “Rules are going to get tougher in the years ahead,” says Don Parrish, senior director of regulatory relations for the American Farm Bureau Federation. “Livestock producers are singled out. They are treated differently than row crops.”

The first—and arguably biggest—rule heading towards producers—will be new Confined Animal Feeding Operations (CAFO) rules by the Environmental Protection Agency (EPA) that have  been five years in the making. The new rule is undergoing interagency review—“the ink is not dry, and right now, we’re looking at late summer” for the rule’s publication, says Jon Scholl, agricultural counsel to the administrator of the EPA. Scholl will not speculate about how the final rule will differ from current rules, but regardless of their ultimate form, “we strongly urge everyone to have a nutrient management plan.” Part of the agency’s proposed new rule was published in early March for public comment.

What’s known more about the upcoming rule is what it won’t have than what it will have. And what it’s virtually certain not to include is this: EPA’s controversial inclusion in its 2003 rule that required all CAFOs to obtain a National Pollutant Discharge Elimination Permit (NPDES), whether or livestock producers ever had discharged or proposed to. The reason why this summer’s final rule will not have that provision, livestock legal experts say, is that EPA’s 2003 rule was struck down in the U.S. Second Circuit Court of Appeals in 2005 after it was challenged by both producer groups and environmentalists.

The court ruled that the EPA violated the Clean Water Act by assuming that all large CAFOs discharged or had the potential to discharge and therefore needed to obtain a permit. The court found that EPA was empowered to permit only “actual” discharges. In essence, the court case forced EPA to go back to the drawing board to make revisions on a narrow part of its 2003 rule.

“The law says you cannot discharge, but there is nothing in the law that says you have to have a permit,” says Tamara Thies, chief environmental counsel for the National Cattlemen’s Beef Association. Experts say, however, that for CAFOs to have protection against, for example, a 25-year, 24 hour storm, producers need a permit. Without a permit, the fines are $32,500 per day for discharging, says Tom Hebert, senior vice president, Ogilvy Government Relations.

“This issue (of who is required to have permits) is going to be front and center in this year’s final rule,” Parrish says. If the ruling comes down the way he and others think, a large number of producers, especially poultry, “will not need to get a permit,” he says. Parrish adds, however, that if poultry producers in particular choose not to obtain a permit, they nonetheless will need a nutrient management plan, and will have to store manure in such a way as to ensure that livestock waste never reaches a navigable waterway as defined by the 1977 Clean Water Act.

A CAFO is defined by EPA as 1,000 beef cattle, 1,000 veal, 2,500 swine over 55 pounds, 10,000 swine less than 55 pounds, 55,000 turkeys, 82,000 layers, 125,000 broilers, 10,000 sheep, and 500 horses.

While livestock organizations won a key victory prohibiting EPA from forcing all CAFOs to obtain a permit, environmentalists won in their attempt to require all nutrient management plans to be made available for public review, something not required under current law, says Hebert.  What’s known as the 2005 Waterkeeper ruling “could be very important. It could become more difficult for a producer to get an expansion plan approved,” Hebert says. He adds that while EPA is not yet requiring that a CAFO’s nutrient management plan be public, some states already are, such as Minnesota and North Carolina.

EPA’s 2003 rule, part of which the court overturned, “represented a sea change in regulation of livestock and poultry,” says Hebert, who represents several livestock organizations on environmental issues. Prior to that rule, egg producers, for example, were largely not governed by the Clean Water Act because they did not discharge. But without the Waterkeeper ruling, they would have been forced to obtain costly permits anyway. The rule also would have forced larger numbers of beef and swine operations to obtain an NPDES permit.

Parrish says that there may be some CAFOs for whom obtaining an NPDES permit makes sense—such as those in sensitive areas, and it may give an added level of legitimacy—but there are also reasons for CAFOs not to want to obtain a permit. Those include the fact that the public has access to report filings required by the CAFO permit, and even a late filing can be a violation.

Some Positives

On the positive side in the new rule that is expected this summer, “it’s going to provide producers lots of flexibility” in meeting EPA rules, predicts Mike Formica, environmental policy counsel for the National Pork Producers Federation. Regardless of whether producers have a permit, they will not be allowed to discharge into a water system, but they will be given choices in how to meet the standard, some experts believe. Formica calls the 2005 court decision “a huge victory for agriculture. Without the Waterkeeper ruling, the number of livestock operations requiring permits would have increased from only 2,500 to as many as 18,000, says Hebert.

Parrish adds that manure has more value to the soil than just adding nitrogen, phosphorous, and potassium, but the extent to which manure is used, and how, is going to get down to federal and state rulemaking, and the future is unclear.

Superfund Exemption

 On another issue, there is a proposal that EPA was scheduled to be taking comments on until March 27 that would exempt animal feeding operations from having to make air emission filings with emergency response units under the Superfund law.

But that would not eliminate all vulnerability of livestock producers under Superfund charges. Superfund is the common name of the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), passed by Congress in 1980 hold companies responsible in cases involving hazardous waste.

A court case is underway in Oklahoma that “could change the face of agriculture in this country” if the decision falls against large poultry producers, says Parrish, whose organization has filed an amicus brief on behalf of the poultry producers.

 In the lawsuit, the Oklahoma attorney general is seeking to block all applications of poultry litter in the Illinois River watershed. The original lawsuit focused on CERCLA, and had that lawsuit been successful, poultry producers could have been forced to pay for the clean up of the watershed. In the view of Parrish and others, manure is regulated under the Clean Water Act, not the Superfund bill. U.S. Sen. Blanche Lincoln, D-Ark., and others have introduced bills that would remove the possible inclusion of livestock manure under the Superfund law, but Hebert sees little chance for such bills to be passed by Congress.

Air Quality

Overall, though, air emissions are next on the radar screen for livestock producers. “We’re just starting to look at air,” Parrish says. On air quality issues, any federal rules governing livestock producers are probably at least several years away, pending results of the national air environmental monitoring study being conducted by Purdue University. But in certain states, such as California, broiler, egg, and dairy producers already are having to adjust to tougher air quality standards, Hebert says. “We don’t know what the Federal Air Act will mean for the rest of the country,” he adds. Formica says that with the global warming issue, depending on how the farm monitoring study comes out, “there may come a day when hog operations are required to have capped lagoons. I don’t think that will happen, but it may.”

On the other hand, livestock producers could benefit from the cap and trade livestock legislation that could boost the value of credits to producers with covered lagoons or methane digesters, he says. “But I don’t know that greenhouse gas legislation will pass this year, as it’s an election year. But it’s very likely it will happen next year.” Asked why many of these issues are coming to a head now, Formica says, “it’s just the political cycle. Others, such as Hebert, however, say that some rules, such as the new CAFO rule, have been in the works for years and are just coming to fruition now.

Another important issue, Thies says, is whether a bill introduced by James Oberstar, D-Minn., gains support. The bill would redefine navigable water in the U.S. as defined by the Clean Water Act to virtually all water, even an isolated pond, Thies says. “This would have a huge impact on agriculture and other industries,” she says.