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Waterkeeper Alliance, Inc. v. EPA: A View From The Farm Groups' Perspective

August 2005

Co-Authors: Ellen Steen, Richard E. Schwartz and Kirsten Nathanson.

Note: The authors represented the National Pork Producers Council in the Waterkeeper litigation.

Which CAFOs Should Seek NPDES Permit Coverage?

The Waterkeeper ruling vacated the CAFO rule’s requirement that all CAFO owners or operators seek NPDES coverage unless they obtain a “no potential to discharge” determination. 399 F.3d at 504-06. Simply put, the “duty to apply” and associated deadlines set forth in the 2003 rule no longer exist. See 40 C.F.R. § 122.23(d), (f), (g). Unless or until EPA promulgates new CAFO-specific permit application requirements, CAFO operators – like other potential dischargers – must determine whether and when to apply for permit coverage based on the CWA and generally applicable NPDES regulations. This essentially means that CAFO operators must determine whether their operations are, or are expected to become, a source of regulated CWA discharges to navigable waters. If regulated discharges are anticipated and an NPDES permit would authorize those discharges (e.g., overflow discharges resulting from extreme rainfall), the operator should consider seeking permit coverage. (Note that some types of discharge are possible that would never be authorized under an NPDES permit, such as spill events caused by equipment failure or by land application in violation of appropriate nutrient management practices. Because such discharges would not be authorized by an NPDES permit, the prudent operator may simply implement measures to prevent these discharges rather than seeking permit coverage for them.)

EPA’s generally applicable NPDES regulations require the submission of a permit application by “[a]ny person who discharges or proposes to discharge pollutants . . ..” 40 C.F.R. § 122.21(a) (emphasis added). The regulations exclude from permitting requirements, however, stormwater discharges that have not been expressly designated for regulation through NPDES permitting. See id. § 122.26(a)(1), (a)(9)(i), (b)(14) (designating regulated stormwater discharges, such as those from “industrial activity,” municipal separate storm sewers, and construction activities disturbing one or more acres). CAFO operators, like operators of any other source or activity, must evaluate the likelihood of a regulated point source discharge of pollutants to navigable waters and determine whether they need permit coverage. Any regulated discharge that occurs in the absence of permit authorization, of course, would be a violation of the CWA subject to possible enforcement and penalties.

The most obvious regulated discharge that CAFO operators should consider in this assessment is a possible overflow discharge from lagoons or other production area waste containment structures to navigable waters in the event of an extreme rain event. Such discharges may be unavoidable for some operations, but they will be lawful only if the CAFO is operating in accordance with an NPDES permit (which would include the requirement that the CAFO production area be designed and operated in accordance with the regulations’ 25-year, 24-hour storm event standard). CAFOs without NPDES permit coverage that experience an overflow discharge to navigable waters, even one caused by an extreme storm event, will be in violation of the CWA and may be subjected to up to $32,500 per day of unlawful discharge.

In assessing their need for permit coverage (i.e., their risk of regulated discharges), CAFO operators should also evaluate the potential for regulated stormwater discharges from their operations. This should include an assessment of: (1) whether stormwater runoff from the production area or from land application areas will enter navigable waters (which can be very broadly defined to include small streams, wetland areas and even ditches that ultimately connect to rivers or streams); and (2) whether any such discharge would be regulated (subject to NPDES permitting) under the CWA.

A full discussion of the regulated and unregulated status of various types of stormwater discharges is beyond the issues addressed in the Waterkeeper decision and beyond the scope of this article. Waterkeeper did confirm, however, the exempt status of stormwater discharges from CAFO land application areas where nutrients have been “applied in accordance with site specific nutrient management practices that ensure appropriate agricultural utilization . . . .” 40 C.F.R. § 122.23(e). Thus, for example, where a CAFO captures production area stormwater and conducts land application in accordance with the practices identified in the 2003 regulation, the operator may reasonably anticipate that no regulated stormwater discharge will occur. If, on the other hand, stormwater discharges are anticipated from CAFO production areas or from land application areas where appropriate nutrient management practices are not in place, then the operator (with assistance from legal counsel) should evaluate whether those discharges would be regulated under the CWA, whether NPDES permit coverage is available for the discharges and, presumably, whether the discharges can simply be prevented.

At least until EPA and authorized states have more clearly defined the benefits and burdens of NPDES permit coverage post-Waterkeeper, rational CAFO operators can hardly be blamed for opting to avoid certain regulated discharges rather than seeking permit coverage for them. Where certain regulated discharges – such as land application area discharges associated with inadequate nutrient management practices – can be prevented by strictly conforming to practices that would be required under a permit in any case – there may be little need to seek permit coverage for those discharges. Operators should also consider whether their circumstances call for preventing some discharges (e.g. preventing non-exempt land application discharges by implementing appropriate nutrient management and recordkeeping practices), but seeking permit coverage for others (e.g. possible production area overflow discharges caused by extreme rainfall).

The Importance of Proper Land Application Practices for All CAFOs

The Waterkeeper ruling upholding EPA’s agricultural stormwater interpretation creates an unusual quasiregulated status for CAFO operators who engage in land application but who do not have or seek NPDES permit coverage for possible land application area discharges. To maintain the exempt status of their land application area stormwater discharges pursuant to 40 C.F.R. § 122.23(e), even operators who do not obtain NPDES permit coverage must comply with the various site-specific nutrient management practices as specified at § 122.42(e)(1)(vi)-(ix).

For this reason, all CAFO operators who engage in land application should comply with the following:

  • Identify appropriate site specific conservation practices (e.g. buffers) to control runoff of pollutants to waters of the United States;
  • Identify protocols for appropriate testing of manure, litter, process wastewater and soil;
  • Establish protocols for land application in accordance with site specific nutrient management practices that ensure appropriate agricultural utilization of the nutrients; and
  • Identify specific records that will be maintained to document the implementation and management of the above requirements.

Failure to implement and document these practices will jeopardize the exempt status of land application stormwater runoff and could result in liability for discharges and a need to seek NPDES permit coverage. (Operators of “Large CAFOs” who do obtain permit coverage will be subject to the above general requirements and the best management practice (BMP) requirements for NMPs listed at 40 C.F.R. § 412.4.)

Although CAFOs will need to implement the identified practices to maintain the exempt status of their land application area stormwater discharges, they need not obtain permit coverage to establish the exemption. The Environmental Petitioners urged in their petition for panel rehearing that the court “clarify” that all CAFO operators who conduct land application must apply at rates “established in a nutrient management plan incorporated into a NPDES permit.” Envtl. Pet. Petition for Panel Rehearing or Clarification at 1. This amounts to an argument that CAFOs must obtain a permit in order to establish their exemption from having to obtain a permit. The groups’ logic is strained and cannot withstand scrutiny. (Environmental Petitioners’ petition for rehearing was denied on May 3, 2005.)

NMPs for NPDES-Permitted CAFOs: A Need for New Solutions

The court’s decision that NMPs must be incorporated into NPDES permits – and requiring agency review and public participation on NMPs prior to permit issuance – creates strong pressure for EPA to redouble its efforts to develop an administratively workable mechanism for permitting CAFOs. Just when the “duty to apply” ruling has eliminated the mandatory permitting obligation for all CAFOs, the NMP rulings threaten a degree of red tape and micromanagement that renders permitting even less palatable. Any attempts to lure, cajole or strong-arm CAFOs into seeking permit coverage – which was, after all, the primary objective of the 2003 rule – will only benefit from administrative solutions that minimize the delay, cost and potential for harassment associated with permit issuance.

Even assuming that large numbers of operators will seek permit coverage notwithstanding the need for site-by-site agency and public NMP oversight, new solutions are essential to manage the burden of CAFO permitting from an agency resource perspective. If thousands of CAFOs seek permit coverage as originally expected by the agency, EPA or delegated state review and public comment on each site-specific CAFO NMP will almost certainly overwhelm an already backlogged NPDES permitting queue. Similarly daunting will be the task of approving revisions to NMPs – which operators have customarily crafted as detailed, organic planning documents – if those revisions are viewed as “permit modifications” under EPA’s current NPDES regulations. See 40 C.F.R. § 122.62-63. In short, innovative thinking, clear guidance and perhaps regulatory revision are necessary if large numbers of CAFOs are to be comprehensively regulated through NPDES permits.

Farm Groups’ Conclusion

Although the Waterkeeper decision brings welcome relief from NPDES permitting for those CAFO operators who are confident that their facilities do not cause regulated discharges, it undeniably complicates the decision-making process and threatens to make permitting far more burdensome for many others. From EPA’s perspective, the decision must have been disappointing: after years crafting a rule to impose a broad permitting obligation but a streamlined permitting process, EPA is left with a rule that achieves neither goal. For CAFO operators, EPA, and NPDES authorized states, the decision creates great uncertainty – perhaps raising more questions than it answers. A few of the more pressing questions are:

  • Precisely what type of (actual) discharges create a need for CAFO operators to seek NPDES permit coverage?
  • Exactly what procedures and documentation must be followed to establish the agricultural stormwater exemption for CAFO land application area discharges?
  • How can agency review and public comment on NMPs for permitted CAFOs be reconciled with the need for site specific, flexible nutrient management practices?

Careful analysis and clear guidance from EPA on these questions and others is critical if CAFOs are to be regulated effectively and efficiently through the NPDES program.

Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or downloaded or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.

Kirsten L. Nathanson
Partner – Washington, D.C.
Phone: +1.202.624.2887