Summary of a Recent
Judicial
Development in
Animal Feeding Operations
Second Circuit Vacates Portions of CAFO
Regulations Under Clean Water Act
Elizabeth Smith McKinneyNational AgLaw Center Graduate Assistant
In Waterkeeper Alliance, Inc. v. United States Environmental Protection Agency, No. 03-4470 (L), et al., 2005 WL 453139 (2d Cir. Feb. 28, 2005), the United States Court of Appeals for the Second Circuit held several regulations promulgated by the EPA for the abatement and control of water pollutant emissions from concentrated animal feeding operations (CAFOs) under the Clean Water Act (CWA), 33 U.S.C. §§ 1251-1387, were a violation of the express terms of the CWA or were arbitrary and capricious under the Administrative Procedure Act, 7 U.S.C. §§ 500-504, 551-584, 701-706, & 801-808. See id. at *2-3.
The consolidated petition represented two groups of petitioners, the Environmental Petitioners (Waterkeeper Alliance, Inc., Sierra Club, Natural Resources Defense Council, Inc., and the American Littoral Society) and the Farm Petitioners (American Farm Bureau Federation, National Chicken Council, and the National Pork Producers Council), as well as amici representing environmental and public health interests joining some of the Environmental Petitioners' challenges. See id. at *15. Most of the challenges were brought by the Environmental Petitioners, and the court divided the challenges to the CAFO Rule into three categories: the permitting scheme under the rule, the types of discharges subject to the rule, and the effluent guidelines established by the rule. See id. An additional challenge by the Farm Petitioners addressed the EPA's assumption of jurisdiction over all "surface waters" where the CWA only authorizes EPA regulatory power over all "navigable waters," which was denied as moot because the EPA had clarified its use of the terms "surface waters" to distinguish surface water from groundwater, rather than as an overreaching of their regulatory authority. See id., n16.
The Second Circuit vacated three parts of the CAFO rule: the provisions that did not require a permitting authority to review the nutrient management plan before issuing a permit, the provision that did not require the inclusion of the terms of the nutrient management plan and "adequate public participation" before issuing a permit, and the provision that all CAFOs apply for a NPDES permit or establish no potential for discharge, regardless of the whether there had been a discharge. See id. at 64-65. The court remanded other provisions of the CAFO Rule for further clarification, comprising of the best conventional pollutant control technology standard for pathogen reduction and the basis for the allowance of certain CAFOs to incorporate new source performance standard. See id. at 65. The EPA was also directed to clarify the basis for the absence of water quality based effluent limitations for discharges that do not qualify as agricultural stormwater discharges under 40 C.F.R. § 122.23(e), and whether water quality based effluent standards may be developed by the states. See id.
[Editor's Note: A more detailed discussion and analysis of this case and its implications is forthcoming.]
The case was decided on Februrary 28, 2005; this summary was posted Apr. 8, 2005.