Summary of a Recent
Judicial
Development in
Clean Water Act
State's NPDES/CAFO Program Must
Comply with Clean Water Act
Jay KiihaNational AgLaw Center Graduate Assistant
In an action brought by an environmental group and two of its members against the Environmental Protection Agency ("EPA") alleging that the EPA had actual knowledge that the State of Indiana failed to adopt and enforce adequate laws and regulations with respect to the discharge of pollutants produced by confined animal feeding operations ("CAFOs") and that the State of Indiana failed to require those operations to obtain National Pollutant Discharge Elimination System ("NPDES") permits, the United States District Court for the Southern District of Indiana has ruled that the State of Indiana was required to bring its NPDES program into compliance with the Clean Water Act ("CWA"), 33 U.S.C. §§ 1251 - 1376. Save the Valley, Inc. v. United States E.P.A., 223 F.Supp.2d 997, 1012-15 (S.D. Ind. 2002). The court further ruled that if the State of Indiana failed to comply with the CWA, the EPA would be ordered "to undertake and process withdrawal proceedings for Indiana's [NPDES] program." Id. at 1013.
The CWA regulates all discharges of pollutants into waters of the United States "through the federally mandated and supervised NPDES permit program." Id. at 1006. NPDES permits "'impose limitations on the discharge of pollutants, and establish related monitoring requirements.'" Id. (citation omitted). The CWA also prohibits the discharge of point source pollution into waters of the United States unless the discharge is "in conformance with a valid NPDES permit obtained prior to the discharge." Id. at 1007. (citation omitted). A "point source" is "'any discernable, confined and discrete conveyance . . . from which pollutants are or may be discharged.'" Id. (citation omitted). "Agriculture stormwater discharges" and "return flows from irrigated agriculture" are not included in the definition of "point source." See id. CAFOs are considered to be point sources and are therefore subject to NPDES permitting requirements if they discharge or propose to discharge pollutants into waters of the United States. See id. (citations omitted).
The EPA is authorized by the CWA to issue NPDES permits, "but States may apply for and receive EPA approval to administer their own permit programs, provided they comply with detailed statutory and regulatory requirements." Id. (citation omitted). However, when a state administers its own permit program, the EPA "retains a high level of involvement and authority." Id. For example, the EPA will continue to review state water quality standards, "retains authority to object to the issuance of particular permits, . . . monitors state programs for continuing compliance with federal directives, . . . and enforces the terms of individual NPDES permits when a State has failed to institute enforcement proceedings." Id. (citations omitted).
Indiana applied for and received approval to implement its own NPDES program. Id. Under Indiana's CAFO regulation program, the Indiana Department of Environmental Management ("IDEM") was to issue permits to CAFOs that conformed to the terms of Indiana's Confined Feeding Control Act, Ind. Code §§ 13-18-10 - 13-18-10-6. Id. at 1009. Indiana's Confined Feeding Control Act "defines a confined feeding operation as any operation with confined feeding of more than 300 cattle, 600 swine or sheep, or 30,000 fowl, or any operation with a history of pollution problems." Id. (citation omitted). Before 2001, however, "Indiana did not require any confined feeding operations, including federally-defined CAFOs, to apply for or to obtain NPDES permits." See id. Prior to 1999, IDEM did not inspect or pursue an enforcement action against any CAFO in Indiana. Id.
In January, 1975, Indiana's NPDES program was approved by the EPA. See id. at 1008. In order to obtain approval, Indiana had to demonstrate that "it had established sufficient legal authority to enable it to administer the program in accordance with federal law." Id.
In March, 1999, the EPA expressed its concern that Indiana's rules did "'not establish a clear link to the Indiana NPDES requirements for CAFOs . . . .'" Id. at 1010 (citation omitted). To that end, the EPA and IDEM entered into an Environmental Partnership Performance Agreement ("EPPA") in November, 1999. See id. In the EPPA, "IDEM agreed that the forthcoming adoption of Article 16 of the Indiana Administrative Code would ensure that all CAFOs would have a permit equivalent to a NPDES permit." Id. A permit was considered to be equivalent to a NPDES permit if the rule creating the permit either created "an NPDES general permit, as authorized by the Indiana Administrative Code title 327, article 15, and the revision to the Indiana NPDES program that EPA approved in 1991," or if the rule itself was "submitted to and approved by the [EPA] as a revision to the Indiana NPDES program under 40 C.F.R. § 123.62." Id. (citation omitted).
In September, 2000, the EPA announced a meeting to receive public comment on the Indiana's proposed CAFO rule. See id. In November, 2000, IDEM requested that the EPA offer comment on its proposed rule. See id. The EPA stated that although it viewed the proposed Article 16 rule as a general draft permit, the proposed rule "did 'not yet meet the requirements for a general NPDES permit.'" Id. (citation omitted). More specifically, the EPA stated that the rule "did not meet the requirements in 40 C.F.R. § 122.28 pertaining to general permits, § 122.41 pertaining to all NPDES permits, and in § 122.44 containing requirements for the establishment of limitations, standards, and other conditions in all permits." Id. The EPA also voiced concerns relating to whether the rule complied with § 122.46, "which provides that NPDES permits are to be issued for a term not to exceed five years, and whether the proposed rule represented a threat by failing to address elevated phosphorous levels in soils." Id. (citations omitted).
IDEM announced in February, 2001, "that it would publish a First Notice of Rulemaking for the proposed Article 16 on March 1, 2001." Id. (citation omitted). In the announcement, IDEM noted that it "'did not believe the EPA's comments could be resolved before that date, but stated that it hoped to address them 'in as timely [a] manner as possible.'" Id. (citation omitted).
The EPA responded to this announcement in a letter on July 20, 2001, stating that "'it is important for you to understand the need for IDEM to aggressively implement the NPDES program for CAFOs that are subject to the existing, 25-year old federal regulations.'" Id. (citation omitted). The EPA also "reiterated IDEM's choices for satisfying its obligation to issue NPDES permits to CAFOs, which included issuing all federally-required individual permits, issuing one or more general permits, or submitting the amended rule to EPA as an approvable revision to the Indiana NPDES program." Id. (citation omitted).
The EPA's letter also specified various deadlines for the courses of action that were available to IDEM. See id. If IDEM determined that it "would issue individual permits, it was to submit to the EPA a proposed plan, with a schedule and milestones by November 2001." Id. (citation omitted). If IDEM determined that it would issue general permits, "it was to issue a proposed general permit or permits to the EPA by December 2001." Id. (citation omitted). The EPA informed IDEM that is was required to respond to its letter by August 20, 2001, "and confirm that it had met or would very soon meet the EPA's expectations for compliance evaluation and enforcement." Id. at 1011-12. (citation omitted).
IDEM responded to the EPA's letter on September 11, 2001. See id. at 1012. In that letter, IDEM noted that it had enacted "'the first-ever rules governing confined animal feeding operations in Indiana, implementing [the] state statute which has been in place since 1972.'" Id. (citation omitted). It also noted that it "had published a first notice of rulemaking to develop a specific rule governing CAFOs for the purpose of NPDES, in the event such a rule was needed." Id. (citation omitted). In addition, IDEM pointed out in its letter "that the 1999 U.S. EPA/USDA Unified National Strategy contemplated functionally equivalent state programs" and that it believed that its "revised program would 'yield a comparable level of environmental protection to the strategy outlined by U.S. EPA and U.S. Department of Agriculture.'" Id. (citation omitted). Finally, IDEM stated in its letter the following: "[C]an you please describe the circumstances in which a state may operate a confined feeding approval program without specifically requiring an NPDES individual permit, NPDES general permit, or NPDES permit-by-rule for CAFOs?'" Id. (citation omitted).
Based on these facts, Save the Valley, Inc. ("Save the Valley"), plaintiff, and two of its members, Thomas and L. Jae Breitweiser, also plaintiffs, were concerned that, due the inadequacy of Indiana's regulation of CAFOs, that Indiana was becoming a popular state in which to open hog farms. See id. at 1000. Save the Valley was a not-for-profit corporation "dedicated to saving the environment." Id. at 999. The Breitweisers were members of Save the Valley who lived on property adjacent to a CAFO. See id. On January 20, 1999, the plaintiffs filed a complaint for injunctive relief and for writ of mandamus against the EPA. See id. The complaint was brought under Clean Water Act, 33 U.S.C. § 1251 - 1376, and the Federal Mandamus Statute, 28 U.S.C. § 1361. See id.
The plaintiffs contended "that the EPA possess[ed] actual knowledge that the State of Indiana . . . failed to adopt and enforce adequate laws and regulations concerning the discharge of pollutants from . . . [CAFOs] . . . particularly industrial hog farms, and . . . failed to require those operations to acquire . . . [NPDES] . . . permits." Id. at 999. The plaintiffs sought (1) initiation of withdrawal proceedings under 33 U.S.C. § 1342(c)(3) with relation to Indiana's NPDES program; and (2) "enforcement of Indiana's EPA authorized NPDES permitting program pursuant to 33 U.S.C. § 1319(a)(2)." Id. The IDEM intervened as a defendant in the action. See id. On February 2, 2002, the EPA, IDEM, and the plaintiffs filed motions for summary judgment. See id.
Before addressing the merits of the plaintiffs' claim, the court considered the defendants' argument that the court did not have subject matter jurisdiction over the plaintiffs' claim. See id. at 1000. The defendants argued that because the plaintiffs' claim required "judicial review of an action by the Administrator regarding a state permit program," jurisdiction rested in the Seventh Circuit Court of Appeal pursuant to § 1369(b)(1). Id. The court rejected the defendants' position, noting that "[w]hile 1369(b)(1) allows the Courts of Appeal to review actions actually taken by the Administrator, section 1365(a)(2) allows district courts to require the Administrator to act where she had failed to perform a mandatory duty." Id. at 1001. The court further noted that the plaintiffs properly met the administrative notice and exhaustion of remedies provisions listed under 33 U.S.C. § 1365(b)(2) and 40 C.F.R. § 123.64(b), respectively. See id.
The court entered separate findings under § 1342(c)(3) and § 1319(a)(2). See id. In considering § 1342(c)(3), the court found that "[even though] Indiana's Water Pollution Control Board adopted the new confined feeding rules in November 2001 . . . they still did not completely comply with the Clean Water Act and federal regulations concerning CAFOs." Id. at 1012. The court declined, however, "to compel the EPA to act immediately to withdraw approval of Indiana's NPDES program." Id. at 1013. Rather, the court ordered IDEM "to bring its program into compliance with the Clean Water Act and within federal regulations by adopting one of the options outlined in the EPA's July 20, 2001 letter to IDEM" within 120 days from the entry of judgment, See id. The court further stated that
[S]hould IDEM fail to act . . . the EPA shall be ordered . . . to undertake and process withdrawal proceedings for Indiana's program by scheduling and conducting a public hearing within 150 days of the date of [entry of judgment], and, within 30 days after the date of such hearing, to make and announce its determination regarding whether Indiana is administering its program in accordance with Section 402 of the Clean Water Act.
See id. at 1013-1014.
The court noted that, after such determination is made, continued failure on the part of Indiana to issue NPDES or NPDES equivalent permits would render the matter appropriate for EPA withdrawal of approval. See id. at 1014.
With respect to § 1319(a)(2), the court stated that "an EPA takeover of enforcement of Indiana's NPDES program" was not warranted. Id. The court noted that, in order to take over enforcement of a state's program, "violations of permit conditions or limitations [must be] so widespread that such violations appear to result from a failure of the Sate to enforce such permit conditions or limitations effectively." Id. (citing § 1319(a)(2)). The court stated that § 1319(a)(2) was inapplicable to the matter at bar because IDEM never actually issued any permits, making it impossible for the Administrator to assume enforcement. See id. The court also noted that any lingering compliance and enforcement problems were resolved commensurate with IDEM's inspection of every CAFO in the state from 1999 to 2002. See id.
The case was decided on September 17, 2002; this summary was posted April, 2003