In October 2022, a coalition of environmental groups filed a lawsuit asking the Environmental Protection Agency (“EPA”) to formally respond to a petition the groups submitted to the Agency in 2017. The petition asks EPA to draft stronger rules for regulation concentrated animal feeding operations (“CAFOs”) under the Clean Water Act (“CWA”).
CAFOs & the CWA
According to the text of the CWA, the object of the Act is to “restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.” 33 U.S.C. § 1251(a). To achieve that purpose, the CWA established a permitting system to help regulate the introduction of pollutants into the nation’s waterways. Known as the National Pollutant Discharge Elimination System (“NPDES”), the CWA’s permitting program functions by prohibiting the unpermitted discharge of pollutants from a point source into any water of the United States. 33 U.S.C. § 1342. The CWA elaborates that a “point source” means “any discernible, confined and discrete conveyance […] from which pollutants are or may be discharged [not including] agricultural stormwater discharges[.]” 33 U.S.C. § 1362(14). The full definition specifically includes CAFOs, while the definition for “pollutant” includes agricultural waste. 33 U.S.C. § 1362(6). In other words, the CWA specifically prohibits CAFOs from introducing agricultural waste into protected waters without a NPDES permit.
In 2008, EPA adopted a series of rules detailing how CAFOs would be regulated under the CWA. The 2008 CAFO Rule built on a rulemaking from 2003 which also addressed CAFOs and the CWA. Together, the two rulemakings laid out the regulatory framework currently in place.
Because the text of the CWA does not define the term “concentrated animal feeding operation,” EPA’s CAFO regulations begin by providing a definition. For purposes of the CWA, an “animal feeding operation” is defined as a “lot or facility” where the following two conditions are present: animal “have been, are, or will be stabled or confined and fed or maintained for a total of 45 days or more in any 12-month period,” and “crops, vegetation, forage growth, or post-harvest residues are not sustained in the normal growing season over any portion of the lot or facility.” 40 C.F.R. § 122.23(b)(1). A CAFO is then defined as a facility that meets the definition of an animal feeding operation, as well as either the Large CAFO or Medium CAFO definitions also provided in the rules. 40 C.F.R. § 122.23(b)(2). In turn, Large and Medium CAFOs are defined according to the number of animals housed at the facility. For example, a CAFO that houses 700 or more mature dairy cows would be considered a Large CAFO, while a facility with 200 to 699 mature dairy cows would be a Medium CAFO. 40 C.F.R. § 122.23(b)(4), (5). A facility that houses less than 200 mature dairy cows would not be considered a CAFO under the regulations. Different threshold numbers are provided for various livestock, including swine, horses, sheep, and chickens. Importantly, an animal feeding operation will not be officially recognized as a CAFO for CWA purposes until either EPA or an approved state agency designates it as a CAFO. 40 C.F.R. § 122.23(c). To be designated as a CAFO, an on-site inspection of the animal feeding operation must be made in order to determine how many animals are housed at the facility, and whether the facility is discharging pollutants into protected waters. 40 C.F.R. § 122.23(c).
If an animal feeding operation is designated as a CAFO, it must have a NPDES permit prior to making discharges of pollutants into protected waters, otherwise it will be in violation of the CWA. 40 C.F.R. § 122.23(d)(1). Additionally, land application discharges from a CAFO are also subject to NPDES requirements. 40 C.F.R. § 122.23(e). This means that a designated CAFO will need a NPDES permit if it is directly discharging into a protected waterbody, or if it applies waste onto land controlled by the facility that then reaches a protected water. In other words, a CAFO will need a NPDES permit if it discharges manure from a pipe directly into a nearby river, or if it spreads manure on a field adjacent two a protected stream if the manure runs off or leeches into the stream. However, there is one key exception to the requirement that CAFOs obtain NPDES permits prior to making land applications. If the land application results in what is known as an “agricultural storm water discharge,” then a NPDES permit is not required. 40 C.F.R. § 122.23(e). An agricultural storm water discharge occurs when manure, litter or wastewater have been applied to land according to specific nutrient management practices, but washes into a protected waterbody as the result of rainfall or other precipitation. 40 C.F.R. § 122.23(e). Such discharges do not require NPDES permits.
Additionally, EPA has established effluent limitations for discharges and land applications made by CAFOs. 40 C.F.R. § 412. An effluent limitation refers to any restrictions established by EPA on “quantities, rates, and concentrations of chemical, physical, biological, and other constituents which are discharged from point sources[.]” In other words, an effluent limitation is how much of a particular pollutant a point source can discharge into a water body. Effluent limitations for CAFOs are broken down according to the type of animal housed at the CAFO facility. However, effluent limitation requirements for CAFOs housing cattle, swine or poultry are largely the same. For both types of productions, discharges from the areas where the animals are directly housed or fed are prohibited unless the discharge occurs as the result of rain or some other type of precipitation. 40 C.F.R. § 412.31(a), 412.43(a). Finally, EPA requires all CAFOs that make land applications of manure, litter, or wastewater to develop a Nutrient Management Plan in order to minimize the introduction of nitrogen and phosphorus to protected waters. 40 C.F.R. § 412.4(c).
In 2017, a collection of environmental groups filed a petition with EPA asking the Agency to revise its regulations concerning CAFOs and the CWA. The groups argued that the current rules underregulate CAFOs in a variety of ways, including failing to require monitoring to ensure compliance with effluent limitations, ignoring numerous “pollutants of concern,” and allowing an “unreasonably broad reading of the agricultural stormwater exemption.” Accordingly, the petition asks EPA to undertake a rulemaking that would address these concerns. To date, EPA has not answered the petition. This failure to respond prompted the environmental groups to file a lawsuit.
On October 11, 2022, the environmental groups that had petitioned EPA in 2017 filed suit in the Ninth Circuit Court of Appeals asking for the court to order EPA to respond to the petition. The plaintiffs bring their suit under the Administrative Procedure Act (“APA”), which allows citizens and organizations to petition federal agencies to adopt rules and regulations. 5 U.S.C. § 553(e). Additionally, the APA notes that agencies have a duty to conclude matters presented to it “within a reasonable time.” 5 U.S.C. § 555(b). Although the text of the APA does not provide a definition for what is considered a reasonable time, courts have routinely found that “a reasonable time for agency actions is typically counted in weeks and months, not years.” In re NRDC, 956 F.3d 1134, 1139 (9th Cir. 2020).
Here, the environmental plaintiffs argued that EPA had violated the APA by failing to respond to their petition within a reasonable time. Five years after the 2017 petition was first submitted, EPA had not given a response. Accordingly, the plaintiffs asked the court to order EPA to respond to the petition within 90 days.
Shortly after the case was filed, EPA agreed to enter into settlement talks with the plaintiffs. According to an order issued by the Ninth Circuit, the parties have until January 9, 2023 to resolve the matter on their own through settlement mediation. Until that time, the court proceedings will be paused. If the parties cannot reach an agreement on their own, the court will review the matter and issue a decision.
During the settlement process, it is likely that the parties will attempt to reach an agreement for EPA to respond to the 2017 petition by a specific date. If they are unable to reach an agreement, then the court may order EPA to respond. Either way, it is likely that EPA will be required to respond to the original 2017 petition.
When responding to a petition for rulemaking, a federal agency may either deny the petition in whole or in part, or it may grant the petition. If the agency denies the petition, that denial becomes subject to judicial review. If the agency grants the petition, it will then need to begin the process of notice-and-comment rulemaking in order to draft and issue a final rule. Therefore, if EPA ultimately decides to deny the 2017 petition, the environmental petitioners could choose to file a lawsuit challenging EPA’s denial. If that happens, a court could either uphold EPA’s denial or order the Agency to revisit its decision. If EPA were to grant the 2017 petition, it would then need to begin the process of drafting new regulations governing CAFOs under the CWA. Should EPA do so, it is uncertain what the new regulations would require, although it is possible that some of the requests included in the 2017 petition could be considered.
Whatever the outcome of this current lawsuit, it seems likely that future action on this issue is possible.
To read the 2017 petition, click here.
To read the complaint, click here.
To read the text of the CWA, click here.
For more National Agricultural Law Center resources on CAFOs and the CWA, click here.