Crowell & Moring Convinces Second Circuit to Hold EPA Regulatory Scheme Unlawful

The Second Circuit yesterday issued its decision in Waterkeeper Alliance, Inc. v. EPA , 399 F.3d 486 (2nd Cir. 2005), the case consolidating both industry and citizen challenges to EPA's Clean Water Act regulations for CAFOs. The court made several significant rulings that dramatically affect EPA's 2003 CAFO regulations:

• The court held that the "duty to apply" for NPDES permits is invalid under the plain language of the Clean Water Act. The court ruled that: "The Clean Water Act, on its face, prevents the EPA from imposing, upon CAFOs, the obligation to seek an NPDES permit or otherwise demonstrate that they have no potential to discharge." Thus, under the court's ruling, CAFOs that do not "discharge" to waters of the U.S. have no obligation to seek or obtain an NPDES permit.
• The court upheld EPA's interpretation of the agricultural stormwater exemption. The court held that EPA's exemption for storm water runoff from land application fields — where application has been in compliance with a nutrient management plan that ensures appropriate agricultural utilization — is a reasonable interpretation of the Clean Water Act. The court rejected the citizen groups' arguments that all CAFO storm water discharges are subject to regulation, along with their argument that CAFO activities are "industrial" rather than "agricultural." However, the court also rejected the farm industry's argument that only "collected" runoff from land application is a point source discharge. According to the court: "Any land application discharge that is not agricultural stormwater is a discharge from a CAFO that can be regulated as a point source discharge." Thus, runoff to waters of the U.S. from CAFO land application areas is deemed to be a "point source" discharge if the CAFO's land application practices do not conform with appropriate management practices (as defined by EPA).
• NPDES permits for CAFOs cannot be issued without review of the terms of nutrient management plans, including public review and comment, and NMP terms must be included in NPDES permits. The court followed the Ninth Circuit's analysis in Environmental Defense Center, Inc. v. EPA , 344 F.3d 832 (9th Cir. 2003), and held that the NPDES permitting authority must review the NMPs of permitted CAFOs to assure compliance with effluent limitations. The court further ruled that NMPs are themselves "effluent limitations" that must be specifically included in the permit and subject to public participation requirements.
• The court upheld EPA's exclusion of groundwater-related requirements from various effluent limitation guidelines. The citizen groups challenged EPA's rejection of several regulatory options that would have imposed groundwater-related requirements on certain CAFOs. The court upheld EPA's decision based on evidence demonstrating that groundwater requirements are best implemented as needed on a case-by-case basis, rather than categorically through national effluent limitation guidelines.

The court also remanded several technical issues to EPA as a result of the citizens' groups challenges:

• EPA must select a BCT standard for pathogen reduction;
• EPA must clarify, through public notice and comment, the statutory and evidentiary basis for the new source performance standards for swine, poultry, and veal calves (i.e. the 100-year, 24-hour storm event design standard);
• EPA must clarify the statutory and evidentiary basis for failing to promulgate water quality based effluent limitations for discharges (other than agricultural stormwater discharges); and
• EPA must clarify whether states may develop water quality based effluent limitations on their own.