Summary of a Recent
Judicial Development in
Animal Feeding Operations

Court of Appeals Affirms Motion of Summary Judgment
on CWA and RCRA Claims

Paul Goeringer
National AgLaw Center Research Associate

Summary of Decision

In Coon ex rel. Coon v. Willet Dairy, Ltd. Partnership, 536 F.3d 171 (2d Cir. 2008), the Second Circuit held that failure of the Willet Dairy to operate with a permit prior to July 1999 was not subject to the citizen suit provision in the Clean Water Act. The court also found that any violations after July 1999 where shielded by the permit, and any claims of violations of the Resource Conservation Recovery Act where exempt under the Clean Water Act. Finally, the court found that the recapture provision, in the Clean Water Act, did not apply to the construction of a new farm or stock pond by an ongoing farming operation.

Background

The neighbors of a dairy brought a citizen suit, pursuant to 33 U.S.C. § 1365, for animal waste and other hazardous waste discharges in violation of the Clean Water Act (CWA). Id. at 172. The neighbors claimed that the dairy discharged pollutants in violation of its permit after July 1999, operated without a permit prior to July 1999, violated the Resource Conservation and Recovery Act (RCRA), and diverted Schaeffer Creek without a permit. Id. The United States District Court for the Northern District of New York granted summary judgment on all claims for the dairy. Id. The neighbors filed this appeal. Id.

Arguments

The neighbors argued that the dairy violated the CWA by operating a Concentrated Animal Feeding Operation (CAFO) without a discharge permit prior to July 1999. Id. The neighbors also argued that its discharges were in violation of its permit after 1999. Next, the neighbors argued that the discharges were hazardous waste in violation of RCRA. Id. at 174. Finally, the neighbors argued that diversion of a stream required a permit from the Army Corps of Engineers (the Corps), pursuant to the recapture provision in 33 U.S.C. § 1344(f)(2). Id.

The dairy argued that any violation prior to July 1999 was a past violation, and not under the citizen suit provision of the CWA. Id. at 172. It asserted that any violations after July 1999 where shielded from citizen suit by the dairy's permit. Id. at 173. It argued that the RCRA claims were inconsistent with the CWA and did not apply. Id. at 174. Finally, the dairy argued that the Corps did not have jurisdiction and that a permit was not required to divert the Schaeffer Brook. Id.

Analysis and Holdings

The Second Circuit Court of Appeals found that any claims for violations of operating without a permit prior to July 1999 had not been properly raised before the District Court and had been waived. Id. at 172. The court also found that any failure to operate without a permit was a "wholly past violation," and not under the citizen suit provision of the CWA. Id. For violations after July 1999, the court found that 33 U.S.C. § 1342(k) shields "a CWA permit holder from facing suits challenging the adequacy of its permit." Id. at 173. Since the dairy was in compliance with its permit, it could not be liable for a CWA citizen suit. Id. There was also no evidence that the dairy had failed to meet any of its deadlines that would prevent the permit from being in full compliance. Id. Summary judgment was also proper on the RCRA claims. Id. at 174. According to 42 U.S.C. § 6905(a), RCRA does not apply when it would be inconsistent with the requirements of the CWA. Id. Applying RCRA, in this case, would have been inconsistent with the "permit shield" of the CWA, and the court affirmed the trial court's decision. Id.

Finally, the recapture provision did not apply to the dairy's diversion of Schaeffer Brook. Id. at 175. The Corps determined that the diversion did not require a permit. Id. at 174. Under 33 U.S.C. § 1344(a), a permit is not required when constructing or maintaining a farm or stock ponds. Id. The court, after examining other courts' interpretations of the recapture provision, found that recapture only applied when a new farming operation was started, and not when an existing operation constructed a new pond. Id. The court affirmed the decision that a permit was not required. Id. at 175.

The case was decided on July 30, 2008.