By Mary Ellen Ternes
On March 15, 2011, the United States Court of Appeals for the Fifth Circuit, following transfer from the Judicial Panel on Multi-District Litigation (compiling appeals filed in the Fifth, Seventh, Eighth, Ninth, Tenth and D.C. Circuits), issued its decision in the challenge to EPA’s 2008 Concentrated Animal Feeding Operation (CAFO) rule revisions by many agricultural associations (“Farm Petitioners” including the Oklahoma Pork Council, American Farm Bureau, Dairy Business Association and National Chicken Council), with environmental association intervenors (“Environmental Intervenors” including the National Resources Defense Council, Sierra Club and Waterkeeper Alliance). The 2008 CAFO rule revisions were adopted by EPA in resolving the mandates of the Second Circuit following Waterkeeper Alliance, Inc. v. EPA, 399 F.3d 486 (2n Cir. 2005) (resolving challenges to EPA’s 2003 CAFO rule revisions).
With this decision, the Fifth Circuit held that EPA exceeded its authority under the Clean Water Act by requiring all CAFOs to apply for a CWA discharge permit when there is no discharge to navigable waters, and with respect to CAFOs that have not discharged to navigable waters, vacated both the requirement to apply for a CWA 
permit where there are no discharges, and vacated provisions imposing liability for failing to apply for an NPDES permit. Specifically, the Fifth Circuit stated, “For more than 40 years, the EPA’s regulation of CAFOs was limited to CAFOs that discharge.” The 2003 rule marked the first time that the EPA sought to regulate CAFOs that do not discharge. This attempt was wholly rejected by the Second Circuit in Waterkeeper.
Again, with the 2008 rule, the EPA not only attempts to regulate CAFOs that do not discharge, but also to impose liability that is in excess of its statutory authority. Here, the “duty to apply,” as it applies to CAFOs that have not discharged, and the imposition of failure to apply liability is an attempt by the EPA to create from whole cloth new liability provisions. The CWA simply does not authorize this type of supplementation to its comprehensive liability scheme. Nor has Congress been compelled, since the creation of the NPDES permit program, to make any changes to the CWA, requiring a non-discharging CAFO to apply for an NPDES permit or imposing failure to apply liability.
The Fifth Circuit upheld the provisions of the 2008 rule that allow permitting authorities to regulate a permitted CAFO’s land application and include these requirements in a CAFO’s NPDES permit because challenges were time-barred, and dismissed the poultry petitioners’ challenge of the guidance letters for lack of jurisdiction because the letters merely restated the law and had no effect on the
party’s rights or obligations and thus not reviewable final actions.