Summary of a Recent
Judicial Development in
Animal Feeding Operations

Michigan's General NPDES CAFO Permit Program
Fails to Satisfy CWA Requirements

Eric H. Foy
National AgLaw Center Research Associate

Summary of Decision

In Sierra Club Mackinac Chapter v. Department of Environmental Quality, 747 N.W.2d 321 (Mich. Ct. App. 2008), the Court of Appeals for the State of Michigan reversed and remanded the circuit court's affirmation of the declaratory ruling issued by the Department of Environmental Quality (DEQ). The Court of Appeals held that state courts had jurisdiction over the matter, nutrient management plan application rates constituted "effluent limitations" under the Clean Water Act (CWA) such that DEQ was required to incorporate minimum effluent limitations in the Michigan National Pollution Discharge Elimination System (NPDES) general permit, and the Michigan general NPDES permit did not allow for public participation as required under the CWA.

Background

On June 11, 2004, the DEQ issued a general confined animal feeding operation (CAFO) permit for Michigan CAFO owners based on the federal CAFO rule and state administrative rules governing the NPDES program. Id. at 326. The DEQ published notice of the proposed general permit, held two public hearings, and accepted written and verbal comments on the proposed general permit, including the Sierra Club's comments. Id. at 327. A business or individual seeking coverage under the general permit must develop a comprehensive nutrient management plan (NMP) describing the production practices that the owner of an agricultural operation now uses or will implement to sustain livestock or crop production in a manner that is both environmentally and economically sound. Id. The NMP is not part of the permit application or part of the permit itself, although the DEQ may review it at the CAFO site.

"In January 2005, the Sierra Club requested a declaratory ruling from the DEQ on three issues: (1) [w]hether the general permit which allows a CAFO to develop its own [NMP] specifying how the operator intends to meet the effluent limitations of the [CWA], without review or approval from the DEQ and without incorporation of its terms in a permit violates the [CWA] sections 301, 402"; "(2) [w]hether the general permit's failure to provide for adequate public participation in the permitting process and enforcement of the [CWA] standards against CAFOs contravenes [the CWA]"; and "(3) [w]hether the general permit violates section 402 of the [CWA], and its implementing regulations, by authorizing the discharge of pollutants without ensuring that the discharge will meet the water quality requirements of the CWA." Id. The DEQ rejected the Sierra Club's claims in Declaratory Ruling 2005-01. Id. The Sierra Club appealed the Declaratory Ruling to the circuit court. Id. at 328.

Arguments

The Sierra Club argued that Michigan's general CAFO permit did not include the required minimum federal effluent limitations and was inconsistent with the CWA. Id. It claimed that its argument was adopted by the federal court of appeals in the Waterkeeper decision. Id.

The DEQ argued that its decision rejecting Sierra Club's claims was neither arbitrary, capricious, or an abuse of unwarranted discretion and should be upheld. Id.

Analysis and Holdings

Because the Sierra Club did not contest any action taken by the EPA administrator, the court held it had jurisdiction. Id. at 330-31. Rather than contesting EPA's actions, the Sierra Club asked the DEQ for a declaratory ruling that Michigan's NPDES plan was contrary to federal law. Id.

The court agreed with the Sierra Club's assessment that the comprehensive NMPs were essentially effluent limitations. Id. at 332. As such, the DEQ must incorporate them into the general permit. Id. To hold otherwise would frustrate the CWA's goal of controlling effluent or pollutant discharges "by making them unlawful except as authorized in order to restore and maintain the biological integrity of the nation's waters." Id. at 333-34.

The Clean Water Act further requires "'an opportunity for public hearing' before any NPDES permit issues, that a 'copy of each permit application and each permit issued under [§ 1342] shall be available to the public,' and that 'any citizen' may bring a civil suit for violations of the Act." Id. at 334. Ultimately, the court held that the CWA "requires public participation in development, revision, and enforcement of effluent limitations" and "is applicable to development, revision, and enforcement of NMPs." Id.

In sum, the court held that Michigan's general CAFO permit program did not satisfy the requirements of the CWA because it did not require inclusion of the required minimum effluent limitations in the general permit and it did not provide for the requisite public participation. Id. at 335.

The case was decided on January 15, 2008.