Summary of a Recent
Judicial Development in
Clean Water Act

Dairy Operation Violated Clean Water Act

Harrison M. Pittman
Staff Attorney

In an action brought by an environmental group against a Washington dairy operation in which the environmental group alleged that the dairy operation had committed several violations of the Clean Water Act ("CWA"), 33 U.S.C. §§ 1251-1387, the United States Court of Appeals for the Ninth Circuit has held that the dairy operation received sufficient notice from the environmental group of the alleged violations as required by the CWA's "citizen suit" provision, that ongoing violations of the CWA had occurred, and that there was a reasonable likelihood that these violations would recur. Community Ass'n for Restoration of the Environment v. Henry Bosma Dairy, 305 F.3d 943, 952-53 (9th Cir. 2002). The court also ruled that a drainage ditch that ran from the dairy operation and eventually flowed into a nearby river was a "navigable water" under the CWA. See id. at 954-55. Finally, the court determined that the dairy operation was a Concentrated Animal Feeding Operation ("CAFO") and was therefore a point source subject to the National Pollutant Discharge Elimination System ("NPDES") permit requirements set forth in the CWA. See id. at 955-56.

The CWA forbids the discharge of any pollutant into the waters of the United States unless those discharges are otherwise allowed by the CWA. See id. at 947 (citing 33 U.S.C. § 1311(a)). For a person or entity to be allowed to discharge a pollutant into waters of the United States, that person must obtain an NPDES permit. See id. (citing §§ 1311(a) and 1342(a)). The holder of an NPDES permit is allowed "to discharge pollutants at levels below thresholds incorporated in the permit." Id. (citing 33 U.S.C. § 1342(a)).

The CWA requires states to establish and implement their own permit programs. See id. (citing 33 U.S.C. § 1342(b)). The state program must comply with the CWA and must be approved by the Environmental Protection Agency. See id. (citing § 1342(b)). Pursuant to this requirement, Washington developed a permit program that consisted of a General Dairy Permit and a Dairy Waste Management Plan ("DWMP"). Id. (citations omitted). The General Dairy Permit and the DWMP are used to regulate dairy operations. See id.

A private citizen may bring an action against any person who is allegedly violating "the conditions of an effluent standard or limitation under the [CWA] or of an order issued with respect to such a standard or limitation by the Administrator of the Environmental Protection Agency (EPA) or any state." Id. at 949-50. To bring a "citizen suit," the citizen is required to give 60 days' notice of his intent to sue to the alleged violator, the EPA Administrator, and the state in which the alleged violation occurs. See id. at 950.

The Community Association for Restoration of the Environment ("CARE"), plaintiff, brought an action against Henry Bosma Dairy, Liberty Dairy, Henry Bosma, and Bosma Enterprises, defendants (collectively "Bosma"), alleging that Bosma had violated several provisions of the CWA. See id. at 946. Henry Bosma owned and operated Bosma Dairy and Liberty Dairy. See id. Bosma Dairy had approximately 2,500 dairy cattle. See id. at 947. Liberty Dairy had approximately 3,000 dairy cattle. See id.

Because Bosma Dairy and Liberty Dairy combined had more than 5,000 cattle, they were considered to be a concentrated animal feeding operation ("CAFO"). See id. A CAFO is an animal feeding operation "where animals are stabled or confined for a total of 45 days or more in any 12 month period in an area where neither crops, vegetation or crop residue is sustained." Id. (citing 40 C.F.R. § 122.23(c)(3)). Operations that are CAFOs, such as Bosma's dairy operations, are subject to certain "effluent guidelines" and must therefore "obtain an individual permit for storm water discharges." Id. (citing 33 U.S.C. § 1342(p)(2)(B); Wash. Admin. Code §§ 173.220.020 and 173.220.040; 40 C.F.R. § 412.12(a)).

Henry Bosma was issued a General Dairy Permit from the state of Washington for the Bosma Dairy on January 31, 1997. See id. On January 15, 1998, this permit was modified to include Liberty Dairy. See id. The permit issued to the Bosma dairies stated that with respect to surface water effluent limitations

[t]here shall be no discharge of process waters to surface waters of the state, except for overflow from facilities designed, constructed and maintained to contain process waste unless such a discharge is due to or a direct result of a twenty-five-year, twenty-four-hour rain fall event for that location. This permit does not authorize any discharge of process waste that would result in the violation of State Surface Water Quality Standards.

Id.

On October 31, 1997, CARE sent a 60-day notice of its intent to sue Bosma as required by the CWA's citizen suit provision. See id. This notice stated that it intended to sue Bosma for twelve discharges that allegedly violated the CWA. See id. On January 15, 1998, CARE filed a complaint in the United States District Court for the Eastern District of Washington, "seeking civil penalties for the twelve violations as well as for 32 alleged violations set forth in an appendix to the complaint . . . ." Id. CARE alleged that Bosma violated the CWA because it operated and discharged pollutants without an NPDES permit, that Bosma discharged pollutants in violation of the conditions contained in its Washington General Dairy Permit, and that Bosma discharged pollutants "causing violations of water quality standards." Id.

The district court determined that CARE proved that Bosma committed sixteen violations. See id. It also determined that as of January 15, 1998, the date that CARE filed its complaint, there was a continuing violation and a reasonable likelihood of recurrent violations of

discharges of wastewater from a truck wash to J.D.26.6 . . ., misapplication or overapplication of animal wastewaters to a 14.3 acre field which would flow down the slope east into J.D. 26.6 . . ., and . . . a long history of repeated violations resulting from discharges to J.D. 26.6 and the Canal due to operation and maintenance of the Dairies.

Id.

J.D. 26.6 was a drain that ran from Henry Bosma's property and connected with an irrigation canal and another drain. See id. at 947. Both the canal and the drain ran directly into the Yakima River. See id. (citation omitted). J.D. 26.6 ran into the irrigation canal during the irrigation season and into the drain during the non-irrigation season. See id.

The district court also determined that "CARE failed to prove continuing violations or [a] reasonable likelihood of recurrent violations relating to Bosma's operating without an NPDES permit and to seepage and capacity of [his] storage ponds." Id. The district court ordered Bosma to pay $171,500.00 in civil penalties and awarded CARE $428,000.00 in attorneys' fees. See id. Bosma and CARE appealed the district court's decision to the Ninth Circuit. See id.

The Ninth Circuit first examined Bosma's argument that the content of CARE's sixty-day notice was inadequate. See id. More specifically, Bosma argued that the notice did not adequately list all of the violations that CARE alleged Bosma had committed. See id. The EPA has established the following standards for the content of the sixty-day notice:

[n]otice regarding an alleged violation of an effluent standard or limitation or of an order with respect thereto, shall include sufficient information to permit the recipient to identify the specific standard, limitation, or order alleged to constitute a violation, the person or persons responsible for the alleged violation, the date or dates of such violation, and the full name, address, and telephone number of the person giving notice.

Id. (quoting 40 C.F.R. § 135.3(a)).

The United States Supreme Court has stated that this notice requirement is intended "'to give [the alleged violator] an opportunity to bring itself into compliance with the Act and thus likewise render unnecessary a citizen suit.'" Id. (quoting Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Foundation, Inc. , 484 U.S. 49, 60 (1987)). In Hallstrom v. Tillamook County, 493 U.S. 20 (1989), the Supreme Court determined that the notice requirement should be strictly construed. See id. In Hallstrom, the Court ruled that the district court could not exercise subject matter jurisdiction because the plaintiffs in that case failed to provide notice to either the EPA or the appropriate state agency. See id. (citing Hallstrom, 484 U.S. at 33). In Washington Trout v. McCain Foods, Inc., 45 F.3d 1351 (1995), the Ninth Circuit interpreted Hallstrom as requiring strict compliance with all aspects of the notice requirement "and held that the plaintiffs' failure to include their identities, addresses, and phone numbers in the notice letter required dismissal of the suit." Id. (citing Washington Trout, 45 F.3d at 1354) (additional citations omitted).

In Public Interest Research Group v. Hercules, Inc., 50 F.3d 1239 (3d Cir. 1995), the Third Circuit adopted a more liberal construction of the notice requirement. See id. The Third Circuit is the only circuit court that has considered the adequacy of a citizen suit notice that failed to include violations that were later included in the complaint. See id. In Hercules, the Third Circuit held that the "citizen plaintiff's initial notice of discharge violations was broad enough to encompass additional discharge, monitoring, reporting, and record keeping violations occurring during and after the date of the notice letter." Id. (citing Hercules, 50 F.3d at 1248). The Third Circuit emphasized, however, that these additional violations were required to be of the same "type." Id. (citing Hercules, 50 F.3d at 1250) (additional citations omitted). Moreover, "'the citizen is not required to list every specific aspect or detail of every alleged violation.'" Id. at 951 (quoting Hercules, 50 F.3d at 1248) (see also Atlantic States Legal Found. Inc. v. Stroh Die Casting Co., 116 F.3d 814, 819 (7th Cir. 1997) (stating that "the notice must be sufficiently detailed to allow the alleged violator to know what it is doing wrong so that it will know what corrective actions will prevent a lawsuit")).

In the present case, the Ninth Circuit ruled that although CARE's complaint alleged violations that were not specifically included in the sixty-day notice, the notice was sufficient because it satisfied the goals of the CWA's citizen suit provision. See id. The court stated that even under the "strict compliance" standards "we are unable to discern any failure on CARE's part to satisfy the statutory requirements. CARE's notice included all of the information required by the EPA regulations. Neither the CWA nor the EPA's regulations require plaintiffs to provide an exhaustive list of all violations." Id. (citations omitted).

The court explained that the violations contained in CARE's complaint "were sufficiently similar to those contained in the notice" and determined that "allowing plaintiffs to sue on these violations does not undermine the purpose of the citizen suit provision or the requirements established by the EPA." Id. at 952. The court noted that the violations contained in the complaint were alleged to have occurred within the same time frame as the allegations set forth in CARE's notice. See id. (citations omitted). The court also noted that the allegations contained in the notice and the complaint "are that two dairies, which milk cows in a confined space, produce manure which runs into a single drain ditch-J.D. 26.6. The violations originated from the same source, the CAFO dairies, which deposited the same waste material, manure, into clearly identifiable navigable waters of the [United States] . . . ." Id. Thus, the court stated that "in essence, all of the alleged violations are a single violation that repeated over a span of time." Id. (citation omitted). The Ninth Circuit concluded that CARE's notice was adequate because "the violations originated from the same source, were of the same nature, and were easily identifiable." Id. at 953.

The court next examined whether the district court correctly determined that ongoing violations of the CWA had occurred. See id. For a person who has brought a citizen suit to succeed at trial, that person must prove an ongoing violation. See id. (citing Gwaltney, 484 U.S. at 64). A citizen-plaintiff may establish an ongoing violation by either "'proving violations that continue on or after the date the complaint is filed or . . . by adducing evidence from which a reasonable trier of fact could find a continuing likelihood of a recurrence in intermittent or sporadic violations.'" Id. (quoting Sierra Club v. Union Oil Co. , 853 F.2d 667, 671 (9th Cir. 1988)). In Sierra Club, the Ninth Circuit determined that "'[i]ntermittent or sporadic violations do not cease to be ongoing until the date when there is no real likelihood of repetition.'" Id. (quoting Sierra Club, 853 F.3d at 671).

In the present case, the Ninth Circuit affirmed the district court's determination that as of the date of the filing of CARE's complaint, there was a continuing violation as well as a reasonable likelihood of recurrent violations with respect to

discharges of wastewater from the truck wash to J.D. 26.6 . . . misapplication or overapplication of animal wastewaters to the 14.3 acre field which would flow down the slope east into J.D. 26.6 . . . and a long history of repeated violations resulting from discharges to J.D. 26.6 and the Canal due to operation and maintenance of the Dairies.

Id.

Bosma contended that the district court erred in ruling that there was a continuing violation due to discharges of wastewater from the truck wash into J.D. 26.6 because the evidence did not establish that the water was discharged into navigable waters of the United States. See id. In making its determination, the district court noted "that in 1998 the DWMP stated that wastewater from the vehicle wash area was piped to the [irrigation drain] . . . ." Bosma argued before the district court that the irrigation canal had been capped in March, 1998. Id. at 955. However, the district court determined that Bosma did not provide sufficient evidence to establish that an ongoing violation was not occurring with respect to J.D. 26.6 because, among other things, "if the drain had been capped Bosma would have notified the person he hired to review the DWMP and the dairy facilities that the condition had been corrected." Id. The Ninth Circuit affirmed this part of the district's court ruling because it was supported by the evidence and was therefore not clearly erroneous. See id.

The Ninth Circuit also rejected Bosma's argument that the district court incorrectly determined that an ongoing violation was occurring with respect to the 14.3-acre field. See id. The court noted that the district court relied in part on testimony provided by Bosma's neighbors who stated that they had witnessed wastewater applied to the 14.3-acre tract that subsequently spilled into the irrigation canal. See id. In addition, the topography of the area in question suggested that the wastewater would flow down the slope and into J.D. 26.6, which then flowed into the irrigation canal. See id.

The Ninth Circuit affirmed the district court's determination "that CARE proved the existence of ongoing violations by showing that such violations had a likelihood of recurring." Id. The district court's decision was based on its findings relating to "the poor operation and maintenance of the dairies." Id. The district court noted, for example, that Bosma had been cited on several occasions by the Washington Department of Ecology for discharges, that testimony, photographs, and videos established that Bosma deposited manure near the water after CARE filed its suit against him, and that several witnesses testified that they observed manure spilling into the irrigation canal. See id. The Ninth Circuit determined that based on this evidence the district court's determination was correct. See id.

The Ninth Circuit next examined whether the district court erred when it held that J.D. 26.6 was a "navigable water" under the CWA. See id. "The CWA defines 'navigable waters' as 'waters of the United States.'" Id. (quoting 33 U.S.C. § 1362(7)). In Headwaters, Inc. v. Talent Irrigation District, 243 F.3d 526 (9th Cir. 2001), the Ninth Circuit ruled that "irrigation canals are waters of the United States because they are tributaries to other waters of the United States." Id. (citing Headwaters, 243 F.3d at 533). A "tributary" is a stream which flows into a larger stream or other water body. See id. (citing Headwaters, 243 F.3d at 533).

The court explained that water from J.D. 26.6 is returned directly into the Yakima River either through the irrigation canal or the drainage canal. See id. The court also explained that the Yakima River is a "water of the United States." See id. The Ninth Circuit concluded that "the evidence suggests that J.D. 26.6 drains, either directly or by connecting waterways, into the Yakima River. Therefore, the district court did not clearly err in holding that J.D. 26.6 qualifies as a navigable water under the CWA." Id. at 955.

Finally, the court examined whether the Bosma dairies were point sources subject to the NPDES permit requirement. See id. The CWA defines "'discharge of pollutant'" as "'any discernable, confined and discrete conveyance from any point source.'" Id. (quoting 33 U.S.C. § 1362(12)). The definition of "point source" includes a CAFO. See id. A CAFO is "an animal feeding operation . . . where animals are stabled or confined for a total of 45 days or more in any 12 month period in an area where neither crops, vegetation or crop residue is sustained." Id. (citing 40 C.F.R. § 122.23(a)(3)). An animal feeding operation that has more than 700 mature dairy cattle can also be a CAFO. See id.

The court explained that Bosma's dairies have at least 5,500 mature dairy cattle "confined and maintained in an area where neither crops or vegetation is grown." Id. Thus, it determined that Bosma's dairy operation was a CAFO. See id. The court ruled that the dairies were therefore "point sources subject to the NPDES permit requirement and cannot discharge animal wastes without a permit or in violation of a permit." Id. The court also ruled that the portion of Bosma's fields where manure was stored and the ditches around those fields were point sources because they were part of the CAFO. See id. (See also CARE v. Southview Farm, 34 F.3d 114, 123 (2d Cir. 1994) (ruling that "the liquid manure spreading operations are a point source within the meaning of CWA § 1362(14) because the farm itself falls within the definition of a CAFO and is not subject to the agricultural exemption")).

The case was decided on June 3, 2002; this summary was posted February, 2003