In a recent  op-ed piece published in the Raleigh News & Observer, Michelle Nowlin, senior lecturing fellow, Duke University law school, makes the argument that the North Carolina Legislature shouldn’t have enacted  the Regulatory Reform Act of 2012. Among other things, this legislation stipulated that the North Carolina Department of Environment and Natural Resources (N.C. DENR) can’t define air emissions from poultry houses to be “discharges” as they pertain to the provisions of the Clean Water Act. This provision was clearly targeted to help resolve the so-called “dust and feathers” emissions issue from poultry houses, which is of significance in North Carolina because of the position N.C. DENR has taken regarding Rose Acre Farms’ Hyde County layer complex. Just in case it wasn’t clear to state regulators what the legislature’s intention was, the Regulatory Reform Act of 2014 was enacted, and it states that the 2012 provision applies to “contested cases … pending on or after that date.”

Who needs an NPDES permit?

When Rose Acre Farms' Hyde County, North Carolina, layer complex was opened in 2004, it was believed that confined animal feeding operations (CAFOs) that were dry litter operations had a duty to apply for a Clean Water Act National Pollutant Discharge Elimination System (NPDES) permit. The Hyde County facility applied for and received an NPDES permit.  This permit contained the unusual requirement that all of the manure produced on the farm be composted prior to removal from the farm.

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. The N.C. DENR was taking the position, which is also held by the United States Environmental Protection Agency (EPA), that dust, feathers and ammonia exhausted by poultry house fans can be deposited on the ground and eventually become a storm water discharge and that this creates a duty to apply for an NPDES permit.

Rose Acre didn’t agree with the  unprecedented requirements that N.C. DENR had inserted into the new permit and decided to pull its application for the permit based on the court ruling in the National Pork Producers Council's lawsuit versus the EPA. The judgment in the National Pork Producers Council case confirmed that the EPA cannot make a 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. There was no direct link established between the poultry farm and the nutrient enrichment of the bodies of water. There is a correlation but no proven causation.

Stopping regulatory overreach

Nowlin thinks it isn’t right for the legislature to take action for those “with money and power” and not act in what she calls “the best interests of the entire public.” She thinks that the courts are the proper place for regulations to be judged, not the legislature.  I disagree. Why do we have environmental regulations in the first place? Because of legislation enacted calling for certain activities to be regulated. It makes perfect sense to me that legislators have the responsibility to correct the actions of regulators if, in the opinion of the majority of the elected representatives of the people, the regulations go outside the original intent of the legislation. Why should the government waste the time and money arguing regulations and the “intent” of legislation in court if legislators have clarified the intent with new legislation?

I just wish Congress would add clarification to both the Clean Water and Clean Air acts. I think that the lawyers and the activist groups are the only ones who like the current process.