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A request by the state of Ohio to transfer certain regulatory responsibilities covering Concentrated Animal Feeding Operations from the Ohio Environmental Protection Agency to the Ohio Department of Agriculture was recently denied by the U.S. Environmental Protection Agency. Anti-animal agriculture groups claimed this as a win but, in reality as Ohio Farm Bureau Policy Counsel Leah Curtis lays out in this Legal with Leah, it didn’t change a thing about the livestock permitting process in Ohio.

 

Ohio Farm Bureau · Legal With Leah – NPDES Permit Transfer Update
Listen to Legal with Leah, a podcast featuring Ohio Farm Bureau’s Policy Counsel Leah Curtis discussing topics impacting farmers and landowners.
Transcript

Ty Higgins [00:00:00] A request by the state of Ohio to transfer certain regulatory responsibilities covering concentrated animal feeding operations from the Ohio EPA to the Ohio Department of Agriculture was recently denied by the U.S. EPA. Anti animal agriculture groups claimed this as a win, but in reality, it didn’t change a thing about the livestock permitting process in Ohio. Joining us to talk more about it is Leah Curtis, policy counsel with Ohio Farm Bureau for this Legal with Leah.

Ty Higgins [00:00:28] So this has really been something that’s over 20 years in the making. And I say this tongue in cheek. The anti animal livestock groups that I talked about earlier, really, this is a nothing burger, isn’t it?

Leah Curtis [00:00:42] So around 20 years ago, the General Assembly passed this law that sought to transfer authority from the Ohio EPA to the Ohio Department of Agriculture for NPDES permits. So those, if someone is not familiar. NPDES permits are required under the Clean Water Act to discharge pollutants into a water of the United States. So today we’d hear about those more from places like water treatment plants or factories that have some sort of discharge. So concentrated animal feeding operations or CAFOs, as we typically call them under the law, were required to get two permits from the Department of Ag here in Ohio. They get a permit to install, which is a design permit and then a permit to operate, which is sort of their management practices, all the things they have to do while they’re actually operating. And so the legislature was sort of seeking to, I believe, streamline that process. You know, if they have to get three permits, let’s put all those permits in one place. And so if they needed an NPDES permit, they would get it from the same place as they get their other permits.

Ty Higgins [00:01:40] So that put the ball in ODA’s court back in the early 2000s.

Leah Curtis [00:01:45] Yes. So then ODA submits an application to US EPA to have that authority transferred. That’s kind of the process they had to go through. But US EPA never takes any final action on that application, so they go back and forth over all of these years on requirements but never come to any resolution. Legitimately, years and years. At one point the state sends a letter to U.S. EPA. It takes two years to get a formal response to that letter. All the meanwhile, NPDES permits continue to be handled by Ohio EPA because, again, that authority has never been transferred. It’s never been granted by the U.S. EPA. So Ohio EPA continues to operate and handle those NPDES permits.

Ty Higgins [00:02:26] And all of this isn’t happening in a vacuum. A lot can change in two decades.

Leah Curtis [00:02:31] Yes, so other things are happening. The rest of the world did not stop while this was going on. And so when we kind of started this process, the Clean Water Act, the rules under it essentially required that CAFOs had to have an NPDES permit because there could be a possibility, no matter how small that possibility was, that they might discharge to a water of the United States. CAFOs however, generally are not allowed to discharge. This permit was basically saying like, well, if you might do it, you need to have a permit, if there’s any possibility you could and you might violate that that requirement. So eventually, court hearings happened, litigation happens. A federal court rules that a farm cannot be required to get an NPDES permit on this idea that they might have a discharge under the Clean Water Act rules. So that kind of changes the game a little bit. Generally, farms are not getting NPDES permits because they are not allowed to discharge and so therefore they can’t have this requirement of a plan to discharge permit.

Ty Higgins [00:03:30] So the authority was never transferred. CAFOs aren’t allowed to discharge anyway, and the nature of the federal rules have all changed in the meantime. So why are we hearing about this now?

Leah Curtis [00:03:40] Well, again, after 20 some years, the U.S. EPA finally issued a formal rejection of the Department of Agriculture’s request to transfer this authority. Now this comes after a 2019 inspector general report that basically said you have to take action on these applications, as well as a number of other citizen petitions that have been filed and just sitting around. And then in 2021, the inspector general follows up again and says, hey, you still have to follow up on this ODA request to transfer. You still have not responded to that. So here in the last couple of weeks, we’ve seen U.S. EPA finally provide that final resolution and say they are rejecting the transfer application.

Ty Higgins [00:04:22] In that final resolution, there is still a little bit of an opening there for this process to be transferred in the future.

Leah Curtis [00:04:29] Yes. Essentially they could always try again under the requirements in the suggestions of U.S. EPA that may require some changes to our state law or something. So, they can always do that again. They can always go through that process again. And after that inspector general report, we would assume that U.S. EPA would probably work on some better deadlines and maybe not take 20 years before we have that resolution.

 

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