Can I get rid of my EPA CAFO Permit
I understand that the Federal Appeals Court has twice decreed (2005 and 2011) that EPA is overstepping their statutory basis by requiring CAFOs to have a Discharge Permit who have no discharge. My CAFO does not have a discharge, yet EPA continues requesting permit renewals and all the other red tape associated with their permit. Can I get rid of my EPA permit?
Over the past forty years, the environmental bureaucracy has built a huge critical mass and precedent for requiring National Pollutant Discharge Elimination System (NPDES) Permits of all CAFOs with over 1,000 animal units. The naïve assertion on the part of many in the environmental bureaucracy has been that “you exist,” so you must be assumed to discharge to the Waters of the U.S. at some time. It is interesting that EPA and others don’t make the same assumption with respect to every industrial, commercial, and public facility. If facilities other than CAFOs don’t have a discharge directly into a stream, river, or lake, they are not tasked to have an NPDES Discharge Permit.
Those of us in agriculture recognize that even many open feedlots are locally or geographically situated such that any contaminated stormwater runoff cannot reach waters of the U.S., and virtually all roofed CAFOs have no rainfall runoff at all coming in contact with manure to cause a “permittable discharge.” Knowing this, reasonable estimates are that as many as 70% to 75% of all CAFOs that have been coerced to apply for NPDES permits since the Clean Water Act (CWA) was passed actually have no discharge and should not be required to have an NPDES Discharge Permit.
Ironically, many of our industry organizations early-on bought into the concept that virtually all facilities will eventually discharge, and thus should have a discharge permit (see my recent article in the December 2015 issue of Feed•Lot). What many of them miss is that only stormwater discharges caused by extreme climatic events are authorized for discharge by a permit. Discharges by such things as wastewater pipeline breaks, lagoon embankment failures, pump control failures, or human error are not excused by an NPDES Permit. What EPA also does not admit, is that many of their “violations” and associated fines have nothing to do with any environmental impact of a discharge, but instead are only “paper violations” that they could not even pursue if a permit giving them authority over a CAFO were not “in-force.”
While the path is long and tortuous that has resulted in current existence of thousands of bogus CAFO permits, there are engaging reasons for getting rid of same, and the Courts have clearly determined that EPA can’t require a CAFO to apply for a permit if they do not discharge. I’ll address some ideas on getting rid of bogus EPA Permits in the next issue.