Summary of a Recent
Judicial Development in
Animal Feeding Operations

EPA Determination That CAFOs Do
Not Need Antidegradation Review Not Arbitrary

Kaycee Wolf
National AgLaw Center Research Associate

Summary of Decision

In Kentucky Waterways Alliance v. Johnson, 426 F.Supp. 2d 612 (W.D. Ky. 2006), the United States District Court for the Western District of Kentucky denied the plaintiff's motion for summary judgment against the Environmental Protection Agency (EPA) because it found that the EPA did not act arbitrarily and capriciously in eleven decisions raised by the parties.

Background

Plaintiffs, Kentucky Waterways Alliance, sought summary judgment against the EPA asserting that the EPA "acted arbitrarily and capriciously when it approved the Commonwealth of Kentucky's Tier II Antidegradation Rules as required by the Clean Water Act (CWA)." Id. at 616 (citing 40 C.F.R. § 131.12(a)(2)). By an implementation of an antidegradation policy, states ensure that the existing water quality is protected. Id. at 617. States must implement their water quality standards so that they are consistent with 40 C.F.R. § 131.12, which divides antidegradation into two tiers. Id. This case involved Tier II, which applies to "high quality" waters. Id. The condition of these waters must be "better than required to support fish, shellfish and wildlife both in and on the water." Id. Kentucky requires Tier II review for nearly ninety percent of its waters, labeled "high quality" and "exceptional." Id.

In 1997, the EPA disapproved part of Kentucky's antidegradation policy for Tier II, and Kentucky failed to address the concerns noted by the EPA. Id. at 618. The plaintiffs filed notice of their intent to file suit pursuant to the CWA "for the alleged failure of the EPA administrator assigned to oversee Kentucky to perform a mandatory, nondiscretionary duty to establish a water quality standard implementing antidegradation requirements for Kentucky." Id.

Arguments

The parties submitted eleven matters for the court to address concerning the Kentucky's Tier II antidegradation procedures. Id. at 620. The court noted that it reviews the decisions by the EPA through a limited scope of whether the decisions were arbitrary and capricious. Id. The court reviewed whether the EPA acted arbitrarily and capriciously:
1) when it determined that discharges with increased pollutant loadings of less than twenty percent will not significantly degrade water quality;
2) when it determined that the default limits for domestic sewage discharges will not significantly degrade water quality;
3) when it determined that discharges at a default level of one-half or otherwise allowable quality-based limits are not likely to cause significant degradation of water quality;
4) when it determined that a public owned treatment works (POTW) subject to a regional plan does not need Tier II antidegradation analysis;
5) when it determined that that antidegradation concerns are adequately addressed in the issuance of storm water general permits;
6) when it determined that under Kentucky regulations, discharges associated with coal mining receive a Tier II antidegradation review consistent with the requirements of 40 C.F.R. § 131.12(a)(2);
7) when it determined that Kentucky's process for permitting domestic sewage from single-family residences is consistent with 40 C.F.R. § 131.12(a)(2);
8) when it determined that concentrated animal feeding operations (CAFOs) do not need antidegradation review;
9) when it approved Kentucky's decision not to include impaired waters in its Tier II category of waters that would require antidegradation protection;
10) when it determined that the Kentucky's regulations contain adequate implementation procedures; and
11) when it approved Kentucky's implementation procedures for KPDES permits even thought the procedures did not address CWA section 401 water quality certifications. Id. at 620-33.

Analysis and Holdings

1) The court found that the EPA's approval of discharges with increased loadings of less than twenty percent was not arbitrary and capricious. Id. at 623.

2) The EPA's determination that the default limits for domestic sewage discharges would not significantly degrade water quality was not arbitrary and capricious. Id. at 624.

3) The EPA's determination that the "discharges at a default level of one-half of otherwise allowable quality-based limits [were] not likely to cause significant degradation of water quality" was not arbitrary and capricious. Id. at 625.

4) "[T]he EPA did not act arbitrarily and capriciously when it determined that a POTW subject to a regional plan does not need Tier II antidegradation analysis." Id. at 626.

5) The EPA did not act arbitrarily and capriciously in its determination that "antidegradation concerns are adequately addressed in the issuance of storm water general permits in regards to social and economic accommodations." Id. at 628.

6) The EPA's determination that discharges associated with coal mining under Kentucky regulations received a "Tier II antidegradation review consistent with the requirements of 40 C.F.R. § 131.12(a)(2)" was not arbitrary and capricious. Id. at 629.

7) The EPA's determination that "the process established by Kentucky for permitting domestic sewage from single-family residences is consistent with 40 C.F.R. § 131.12(a)(2)" was not arbitrary and capricious. Id. at 630.

8) The court held that the EPA did not act arbitrarily and capriciously in finding that CAFOs do not need antidegradation review. Id. at 631. The Kentucky regulations address pollution solely with regard to point source discharges. Id. at 630. In determining whether the Kentucky regulations address the pollution from non-point discharges from manure and other large scale live-stock operations, the court found that "non-point discharges are not subject to federal regulation, and therefore are not subject to antidegradation review." Id. (citing Ohio Valley Envtl. Coal. v. Horinko, 279 F.Supp. 2d 732, 763 (S.W. W. Va. 2003)). Therefore, whether a state decides to address non-point sources of pollution in its regulations is a matter of state law. Id. (citing American Wildlands v. Browner, 260 F.3d 1192, 1197 (10th Cir. 2001)). The argument that non-point sources are not addressed in the regulations does not "demonstrate that the EPA was unreasonable in making its decision to approve the regulation." Id. at 630 -31.

9) The EPA's approval of Kentucky's decision not to include impaired waters in its Tier II category, requiring antidegradation protection, because there was widespread Tier II protection in place was not arbitrary and capricious. Id. at 632.

10) The EPA did not act arbitrarily and capriciously in its determination that the Kentucky regulations contained implementation procedures that were adequate. Id. at 633.

11) The EPA's decision to approve Kentucky's implementation procedures for KPDES permits was not arbitrary and capricious.

The case was decided on March 31, 2006; this summary was posted January 10, 2008.