Summary of a Recent
Judicial Development in
Animal Feeding Operations

CAFOs to Be Included in Wasteload Allocation

Kaycee Wolf
National AgLaw Center Research Associate

Summary of Decision

In Minnesota Center for Environmental Advocacy v. Environmental Protection Agency, No. CIV03-5450(DWF/SRN), 2005 WL 1490331 (D. Minn. June 23, 2005), the Minnesota District Court granted the Minnesota Center for Environmental Advocacy's (MCEA) motion for summary judgment in part and denied the motion in part as moot.

Background

The MCEA alleged that the Environmental Protection Agency's (EPA) approval of Minnesota's Regional Maximum Daily Load Evaluation of Fecal Coliform Bacteria Impairments for twenty polluted waterways in southeastern Minnesota (SE TMDL) violated the Clean Water Act (CWA), 33 U.S.C. § 1313. Id. at *1. Twenty water segments were impaired because they were in violation of the water quality standards for fecal coliform bacteria. Id. at *2. The Minnesota Pollution Control Agency (MPCA) analyzed 2,300 water samples in developing the SE TMDL. Id. The MPCA determined that a sixty-five percent reduction of fecal coliform bacteria was necessary to meet water quality standards. Id. The SE TMDL proposed a phased implementation approach. Id. The MCEA contested the SE TMDL when it was brought for final approval. Id. at *3. The MPCA denied the MCEA's request for a contested case hearing, and the EPA approved the final SE TMDL. Id.

Arguments

The MCEA argued that the EPA's approval of the SE TMDL was erroneous because the TMDL did not conform to the requirements of the CWA, EPA regulations, and guidance documents. Id. The MCEA further argued that the SE TMDL was arbitrary and capricious because it was not based on actual evidence of impairment of stream reaches, but was calculated by basin wide totals. Id.

The MCEA argued that the SE TMDL improperly excluded municipal storm sewer systems, straight pipe septic systems, and concentrated animal feeding operations (CAFOs) from wasteload allocation. Id. at *6.

Analysis and Holdings

The court found that the EPA was clearly in error because the EPA "approved a TMDL that was not set to achieve water quality standards for each impaired reach . . . ." Id. at *5. The court agreed with the EPA that neither the CWA nor the EPA's regulations prohibit a watershed or basinwide TMDL. Id. To be in compliance with the CWA's mandate, the TMDL "must be established at a level necessary to ensure that the applicable water quality standards are met in each of the impaired waters for which the TMDL is prepared . . . ." Id.

The court also agreed with the MCEA "that a phased calculation that is not designed to return impaired segments of water quality standards is not in accordance with law." Id. The water calculations included in the SE TMDL were insufficient to enable the impaired waterways to meet water quality standard, and the EPA and MPCA cannot classify their actions as a phased approach or as "interim" in order to get around this requirement. Id.

The court further found that the MCEA's motion for summary judgment was moot in regard to the margin of safety set forth in the SE TMDL. Id. The court explained that the challenges were specific to the SE TMDL and may not be at issue when the MPCA issues its revised TMDL. Id.

The EPA acknowledged that CAFOs and municipal storm sewage systems should be included in wasteload allocation. Id. at *6. The court found that the EPA erroneously approved the TMDL with straight pipe septic systems as nonpoint sources. Id. The court stated that "[a] pipe is a pipe, and the straight pipe septic system should be considered a point source and thus incorporated into the wasteload allocation." Id.

The case was decided on June 23, 2005; this summary was posted April 23, 2008.