EPA Must Modify CAFO Rule

Waterkeeper Alliance, Inc. v. EPA, 399 F.3d 486 (2nd Cir. 2005).

Jason Savarese, J.D.

The Second Circuit Court of Appeals ruled in February that some aspects of the Environmental Protection Agency’s (EPA) regulations governing water pollution from concentrated animal feeding operations (CAFOs) were arbitrary and capricious under the Administrative Procedure Act (APA) and in violation of the Clean Water Act (CWA).

Background
CAFOs are large farms that house and feed a large, concentrated population of animals. A mid-sized CAFO can have more than 50,000 turkeys or almost 125,000 chickens. These operations produce large amounts of wastes, which contain high levels of nitrogen, phosphorus, disease-carrying bacteria and viruses, and carbon dioxide. These pollutants can enter the environment following a spill, purposeful discharge, or an overflow from a storage pond. Most CAFOs, however, contaminate surface waters through a practice known as “land application,” the spreading of manure, litter, and other process wastewaters onto fields as a fertilizer. While land application is a legitimate agricultural practice, environmental problems can result if the wastes are excessively applied or misapplied. To limit the amount of CAFO discharges, EPA promulgated a series of regulations, known as the “CAFO Rule.”

The CWA bars the discharge of pollutants from any point source – a “discernible, confined, and discrete conveyance”1 – into the navigable waters of the U.S. unless authorized by a National Pollutant Discharge Elimination System (NPDES) permit. Every NPDES permit is required to include “effluent limitations,” which restrict the amount, rate, and concentration of pollutants discharged. The CAFO Rule, finalized in 2003, establishes NPDES permit requirements and effluent limitation guidelines for CAFOs. The regulations require all CAFO owners or operators to apply for an NPDES permit or seek a determination from the EPA or the relevant state agency that they have “no potential to discharge” manure, litter, or process wastewater. In addition, each CAFO must develop and implement a nutrient management plan. This plan must ensure adequate manure and wastewater storage and proper disposal of dead animals; prevent farm animals from coming in contact with U.S. waters; restrict the disposal of chemicals; limit pollution runoff; and ensure land applications are conducted in accordance with specific nutrient management practices.2

Nutrient Management Plans
Waterkeeper Alliance, Sierra Club, the National Resources Defense Council and the American Littoral Society (Environmental Plaintiffs) claimed that the CAFO Rule was an “impermissible self-regulatory permitting regime.” They argued it was unlawful because the regulations did not require the nutrient management plans be incorporated into the NPDES permit or provide for permitting authority review of the plans.

The court held that the CAFO Rule’s permitting scheme violated the CWA and was arbitrary and capricious under the APA. The CWA requires the EPA to “prescribe conditions for [NPDES] permits to assure compliance with [all applicable requirements, including effluent limitations].”3 The court found that the CAFO rule, by failing to require review of the plans before the issuance of a permit, “does nothing to ensure that each Large CAFO has, in fact, developed a nutrient management plan that satisfies” the CWA requirements.4

EPA defended the CAFO rule arguing that a nutrient management plan does not “constitute an effluent limitation guideline, but is instead ‘simply a planning tool’ to help CAFOs comply with the effluent limitations.”5 The court disagreed, holding that the nutrient management plans were themselves effluent limitations, since the CWA defines effluent limitation as “any restriction established by a State or the [EPA] Administrator on quantities, rates, and concentrations of chemical, physical, biological . . . constituents which are discharged from point sources.”6 Under the CWA, NPDES permits must contain all applicable effluent limitations and the EPA must assure that the permittee complies with those limitations. Therefore, the terms of the nutrient management plans must be included in the NPDES permits as effluent limitations and the EPA must provide for permitting authority review to assure compliance.

Public Participation
The Environmental Plaintiffs also argued that the CAFO Rule is arbitrary and capricious because it violates the CWA’s public participation requirements. The Court agreed, ruling that the EPA’s development of the CAFO Rule and the underlying NPDES permitting scheme prevent the public from carrying out its usual role in regulatory development and “effectively shields the nutrient management plans from public scrutiny and comment.”7 The CWA mandates that the public be allowed to comment on NPDES permits and assist in the development and enforcement of effluent limitations.8 The Court found that the permitting scheme deprives the public of these opportunities, because the CAFO Rule does not require the plans be part of the NPDES permit, thereby denying the public the chance to comment on those plans. Furthermore, the public cannot enforce through a citizen suit the terms of a plan it does not have access to.

NPDES Registration
Under existing regulations, CAFOs are required to either apply for an NPDES permit or prove that the farm has no potential to discharge pollutants. The American Farm Bureau Federation, National Chicken Council, and National Pork Producers Council claimed the EPA had exceeded its statutory authority by imposing such a requirement. The court stated that the CWA gives the EPA authority to regulate the discharge of pollutants through the development of effluent limitations and the issuance of NPDES permits. The definition of “discharge of any pollutant,” however, does not include potential discharges. The Court held that the EPA cannot require CAFOs to apply for an NPDES permit unless they are actually discharging pollutants.

Conclusion
The court vacated several portions of the CAFO Rule it found to be arbitrary and capricious under the APA and in violation of the CWA. NPDES permits must include the terms of the nutrient management plans developed by the individual CAFOs and the EPA must provide for review of those plans by the responsible permitting authority. Furthermore, CAFOs cannot be required to prove that they do not have the potential to discharge pollutants.

Although the CAFO Rule applies only to certain livestock operations, this ruling could have an impact on the way EPA administers its regulations for concentrated aquatic animal production (CAAP) facilities issued in 2004. The time has passed to challenge the legality of the CAAP guidelines, but EPA may err on the side of caution and begin requiring CAAP facilities to include the terms of their best management practice (BMP) plans in future NPDES permits. This would harmonize the agency’s pollution programs and enable public participation.

Endnotes
1. 33 U.S.C. § 1362(14).
2. 40 C.F.R. § 122.42(e)(1)(i)-(ix).
3. Waterkeeper Alliance, Inc. v. EPA, 399 F.3d 486, 498 (citing 33 U.S.C. § 1342(a)(2) (2005)) (emphasis added).
4. Id. at 499.
5. Id. at 501.
6. 33 U.S.C. § 1362(11).
7. Waterkeeper, 399 F.3d at 503.
8. 33 U.S.C. § 1251(e); § 1342(a); §1342 (b)(3) (2005).