Rose Acre Farms' Hyde County, N.C., layer complex was issued a Clean Water Act National Pollutant Discharge Elimination System (NPDES) permit by the North Carolina Department of Environment and Natural Resources (N.C. DENR) when the farm opened in 2004. This permit contained the unusual requirement that all of the manure produced on the farm be composted prior to removal from the farm. The deep-pit houses built on the farm allow for manure storage inside the building, so a manure storage facility would not have been required, but Rose Acre Farms had to put in a manure building to accommodate composting.

Rose Acre Farms' original NPDES permit was for a standard five-year period. When the company applied for a new permit in 2009, the N.C. DENR made more unusual demands on Rose Acre Farms. Paul Bredwell, environmental programs vice president, U.S. Poultry & Egg Association (USPOULTRY), said, "In 2010 Rose Acre was issued a new permit by the North Carolina DENR, which contained a lot of best management practices that we had never seen before in a permit." The N.C. DENR was taking the position, which is supported by the United States Environmental Protection Agency (EPA), that dust, feathers and ammonia emitted by poultry house fans to the outside can be deposited on the ground and eventually become a storm water discharge.

Best management practices for ammonia  

Bredwell, speaking at USPOULTRY's Hatchery and Breeder Management Conference, said that the U.S. Fish and Wildlife Service reports spending $300,000 trying to prove that the ammonia coming from Rose Acre Farms' poultry house fans was eventually being deposited in the wildlife preserve, which is near the farm. In describing the permit requirements, Bredwell said, "Rose Acre was required to use a certain type of feed for the birds and use that feed within one year in a phase feeding system. They were required to evaluate the ventilation system on the farm and evaluate all best management practices in the U.S. that could impact airborne deposition of ammonia. The company was also required to monitor migratory bird movement through the farm and install devices to scare the birds away.

"They were told to monitor some area streams, which were not on the Rose Acre property, so they would have had to go on other individuals' land to install the monitoring devices and those individuals would not give them permission to do so. There were a number of best management practices that were far out of the ordinary, and Rose Acre didn't think that North Carolina had the authority to make them do these, so they finally said no, we aren't going to do that."

Legal battle ensues

Bredwell said that Rose Acre Farms ultimately pulled its NPDES permit application because of a court ruling in the National Pork Producers Council's lawsuit versus the EPA, which occurred after Rose Acre Farms had originally applied for the permit. The National Pork Producers Council case confirmed that the EPA cannot make a Concentrated Animal Feeding Operation (CAFO) apply for an NPDES permit just because it is a CAFO. Dry litter CAFOs with no opportunity to discharge into water of the U.S. do not have to have an NPDES permit. The state countered that the size of the Rose Acre operation along with the elevated levels of nitrogen and phosphorous found in tests of bodies of water downstream from the farm gave them the authority to require a permit, Bredwell reported.

Rose Acre Farms said it had been inspected six times by the state of North Carolina during the duration of the old NPDES permit, and none of the inspections showed anything that would suggest discharges from the farm explained the nitrogen and phosphorous in the water samples collected by the state on neighboring lands. Earlier this year, a North Carolina Superior Court judge would not grant summary judgment for Rose Acre Farms and ruled that the dispute needs to go back for a full hearing.

Bredwell expressed some concern that the judge pulled precedent from the National Cotton Council versus the EPA case that involved pesticide spraying near bodies of water. The court found that the pesticide applicator could be regulated by the Clean Water Act if the pesticide spraying led to contamination of waters of the U.S. That ruling said that pesticide applicators needed to get NPDES permits. Bredwell said that this same logic could lead to poultry farmers having to get NPDES permits because of ammonia coming out of their houses, since the EPA considers ammonia to be a pollutant.

New North Carolina law

In response to concern over regulatory overreach, the North Carolina legislature passed Senate Bill 810. This piece of legislation is a regulatory reform effort, and it was passed by both the state Senate and House and was signed into law by the governor at the end of August 2012. Included in this legislation are specific definitions of the terms "emission" and "discharge," which side with the poultry industry's position. Emission is defined as a release into the outdoor atmosphere of air contaminants. The law states that a "discharge of waste" shall not be interpreted to include an emission. The Clean Water Act regulates discharges, not emissions. It is not clear what impact this new legislation will have on Rose Acre Farms' dispute with the state of North Carolina.