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CAFOs May Not Need NPDES Permits
– Court Rejects Parts of EPA CAFO Rule
By David
J. Ubaldi
[April 2005]
The Second Circuit Court of Appeals decision in Waterkeeper
Alliance v. EPA significantly impacts the regulation
of concentrated animal feeding operations (CAFOs). See
No. 03-4470(L) et al., 2005
WL 453139 (2nd Cir. Feb. 28, 2005). The decision, which is the
result of an appeal brought by industry1
(“Farm Petitioners”) and environmental groups2
(“Environmental Petitioners”), vacates some of the
permitting requirements under EPA’s 2003 CAFO Rule (the
“Rule”) and calls into question other aspects of
the regulation.
Not All CAFOs Need NPDES Permits
One of the most significant aspects of this case is the Court’s
opinion that large CAFOs do not need a NPDES permit unless they
are discharging as a point source to waters of the United States.
As a result, many CAFOs may not need to apply for National Pollutant
Discharge Elimination System (NPDES) permits. The Court found
that EPA’s Rule violated the federal Clean Water Act because
it impermissibly obligated all large CAFOs to apply for a permit
regardless of whether they have discharged
(or are discharging) any pollutants. The Waterkeeper
Court held that only the actual
discharge of pollutants can trigger the statutory obligation
to seek or obtain an NPDES permit. Effluent limitations under
a permit, the Court said, can only be applied to those CAFOs
that are discharging as a point source under the Clean Water
Act, not those that merely have the potential to discharge in
the future. The Court held that EPA had impermissibly overstepped
its authority by requiring a permit for such potential discharges.
Agricultural Stormwater Discharges Remain
Exempt
The Court agreed, however with EPA’s decision to exempt
agricultural stormwater discharges from NPDES permit requirements.
The Clean Water Act specifically carves out agricultural stormwater
discharges from the definition of a point source. Nonetheless,
the Environmental Petitioners tried to persuade the Court to
essentially ignore the exemption when it came to CAFOs, arguing
that all CAFO discharges – even those caused by precipitation
– should be regulated. The Court disagreed, holding that
it was reasonable for EPA to conclude that Congress had intended
to exempt discharges caused by weather and not by negligence
or malfeasance. The Court ruled that while a CAFO could be held
liable for other land application discharges, it could not be
held liable for the discharges of manure, litter, or process
wastewater that are “primarily the result of precipitation.”
CAFOs With Permits Will Not Be Required
to Monitor Groundwater
The Court also rejected the Environmental Petitioners’
attempt to include groundwater monitoring as part of the best
management practices for diary cows and cattle CAFOs. The Environmental
Petitioners had claimed that EPA improperly abandoned groundwater
monitoring as a management practice without support for such
a decision. They claimed that EPA ignored studies showing that
CAFOs’ waste storage and disposal practices led to adverse
health impacts from contaminated surface and groundwater. The
Court stated that there was ample support in the record to show
that groundwater monitoring would be prohibitively expensive
and more effectively implemented on a case-by-case basis where
site-specific factors could be considered.
NMP Part of NPDES Permit
Lastly, the Court admonished EPA for not requiring terms of
a CAFO’s Nutrient Management Plan (NMP) to be included
in its NPDES permit. A CAFO’s NMP contains, among other
things, operational guidelines for the storage and use of a
CAFO’s manure, litter, and process wastewater. The Court
said that the public had a right to review a CAFO’s NMP
because it contained the terms by which compliance could be
evaluated and enforced. The Court said that this part of the
Rule violated the Clean Water Act’s public participation
requirements by depriving the public of the right to assist
in the “development, revision, and enforcement”
of a permit’s terms.
State Permit Status Unclear — Washington
Permit on Hold
It is not entirely clear how the Waterkeeper
decision will affect state permitting authorities. States are
free to regulate CAFOs more stringently than what is permitted
under the federal Clean Water Act. State law, however, may be
susceptible to the same challenges brought against EPA in Waterkeeper,
especially if the state law relies on the same or similar language
that was at issue in the decision. The Waterkeeper
decision has at least delayed some permitting authorities
from issuing CAFO permits. For example, the Washington State
Department of Ecology had intended to issue its CAFO NPDES and
State Waste Discharge General Permit in March 2005. Ecology
has put the Permit on hold because of the Waterkeeper
decision. In the meantime, litigants may find fertile ground
in the decision to raise new issues in Clean Water Act cases.
A copy of the decision is available on the web at: http://www.ca2.uscourts.gov:81/isysnative/RDpcT3BpbnNcT1BOXDAzLTQ0NzBfb3BuLnBkZg==/03-4470_opn.pdf
FOOTNOTES
1
Industry petitioners included the American Farm Bureau Federation,
National Chicken Council, and the National Pork Producers Council.
2
Environmental petitioners included the Waterkeeper Alliance,
Inc., Sierra Club, Natural Resources Defense Council, Inc.,
and the American Littoral Society.
For more information on the Waterkeeper decision and/or
its impacts, please contact any of the following:
This Environmental Law Advisory is a
publication of the Environmental Law Department of Davis Wright
Tremaine LLP. Our purpose in publishing this Advisory is to
inform our clients and friends of recent developments in environmental
law. It is not intended, nor should it be used, as a substitute
for specific legal advice as legal counsel may only be given
in response to inquiries regarding particular situations.
Copyright © 2005, Davis Wright
Tremaine LLP.
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