CLIVE, Iowa — The National Pork Producers Council (NPPC) is questioning the U.S. Environmental Protection Agency’s (EPA) newly proposed Clean Water Act (CWA) reporting rule for Concentrated Animal Feeding Operation (CAFOs).

It charges the agency keeps shutting out the livestock industry from any discussions over permit requirements for discharge into U.S. waterways. The EPA’s proposed reporting rule seeks to require CAFOs submit to the agency’s operational information so it “can more effectively carry out its CAFO permitting programs on a national level and ensure that CAFOs are implementing practices to protect water quality and human health.”

The EPA’s latest proposal stems from a May 2010 settlement agreement the agency entered into with the NPPC, Waterkeeper Alliance and the Sierra Club as part of a lawsuit the NPPC brought and ultimately won against the EPA’s 2008 CAFO rule.

Under this settlement agreement, large livestock operations that propose to or that might discharge into waterways were required to obtain CWA permits. A federal court later ruled the CWA required permits only for “operations were actually discharging.”

In its lawsuit, the NPPC contended the rule was developed without the livestock industry’s participation and wasn’t required or ordered by any court. Now, producers still aren’t allowed to participate in any further discussions concerning the EPA’s newly proposed reporting rule, the NPPC added.

But in a unanimous decision issued on March 15, a federal court ruled the EPA cannot require livestock operations to obtain CWA permits unless and until they have a discharge of manure into a U.S. waterway. The U.S. Court of Appeals for the Fifth Circuit in New Orleans ruled the EPA “exceeded its statutory authority in requiring concentrated animal feeding operations (CAFOs) that propose or that might discharge to apply for CWA permits.”

The NPPC, American Farm Bureau Federation, United Egg Producers and several other agricultural groups sued the EPA over its CAFO rule, which was issued in 2008 after the EPA’s core provision in the initial 2003 regulation was struck down by the U.S. Court of Appeals for the Second Circuit in New York.

The 2008 rule covered production areas and cropland on which manure is applied and imposed fines of up to $37,500 a day not only for illegal discharges, but for “the failure of a CAFO that had a discharge to apply for a CWA permit.” In arguments before the Fifth Circuit, the NPPC said the 2008 rule’s duty to apply constituted “a thinly veiled effort to impose the same duty to apply that was invalidated” by the Second Circuit.

The Fifth Circuit Court agreed with the NPPC’s arguments, ruling on the “duty to apply” provision that previous court cases “leave no doubt that there must be an actual discharge to trigger the CWA’s requirements and EPA’s authority.” It also struck down the CAFO rule’s “failure to apply” provision, stating its imposition is “outside the bounds of the CWA’s mandate.”

The NPPC said the EPA and “left-leaning” environmental groups are seeking to undermine the federal court decision by reclassifying the CWA permit process as simply informational. “Our government is not supposed to operate through a process of secret settlements,” said NPPC President Doug Wolf, a Lancaster, Wis., pork producer.

“Pork producers decry that settlement agreement as the product of a bad and closed process that improperly attempted to make major policy decision out of the public eye, and this rule is a product of that flawed process.”

The EPA information includes basic facility facts, such as contact information, location of a CAFO’s production area, permit status, the number and type of animals confined and the number of acres available for land application of manure.

The agency is considering one of two reporting options: requiring every CAFO to report information to the EPA unless states with authorized CWA permitting programs choose to provide it on behalf of the CAFOs in their state; or requiring watersheds that have water quality concerns associated with CAFOs to report information to the EPA.

The NPPC and other livestock groups have long been raising concerns about the settlement, including its potential to undermine farm biosecurity that protects the safety of America’s food supply. Ron Birkenholz, communications director at the Iowa Pork Producers Assoc. (IPPA) in Clive, also questioned “why this proposed rule is even necessary.

“Pork producers work daily to protect our natural resources,” he said. “It’s one of the ethical principles of pork production. Confinement operations in Iowa are already prohibited by law from discharging. Any confinement that does discharge is required to have a National Pollutant Discharge Elimination System (NPDES) permit. For the EPA to further require these confinements to submit information related to their NPDES permits and whether they discharge or not is unwarranted.”

The IPPA is “reviewing the proposal and will strongly encourage its members to submit written comments on how the rule will impact their business,” Birkenholz added.

USDA Secretary Tom Vilsack and U.S. Department of Homeland Security Secretary Janet Napolitano have been working with EPA Administrator Lisa Jackson to come up with a rule that acknowledges the concerns and seeks public comment on them.

Despite these agencies’ intervention, the proposed reporting rule is “still problematic,” said the NPPC, assuming CAFOs, by nature, “discharge pollutants that can be proven through an information collection process.”

The EPA is requesting public comment on both options, as well as alternative approaches to gather information. The proposal will be open for public comment for 60 days after its publication in the Federal Register. The agency plans to take final action on the proposal by July 2012.

For more information on the proposal, visit http://cfpub.epa.gov/npdes/afo/ aforule.cfm