Food & Water Watch v. U.S. Envtl. Prot. Agency

20 F.4th 506

FOOD & WATER WATCH; Snake River Waterkeeper, Inc., Petitioners,

v.U.S. ENVIRONMENTAL PROTECTION AGENCY, Respondent.

No. 20-71554

United States Court of Appeals, Ninth Circuit.

Argued and Submitted May 6, 2021 Portland, Oregon

Filed December 16, 2021

Tyler Lobdell (argued), Staff Attorney, Food & Water Watch, Boise, Idaho; Allison M. LaPlante and Danielle Replogle, Earthrise Law Center, Lewis & Clark Law School, Portland, Oregon; for Petitioners.

Benjamin J. Grillot (argued), Attorney; Eric Grant, Deputy Assistant Attorney General; Todd Kim, Assistant Attorney General; Jonathan D. Brightbill, Principal Deputy Assistant Attorney General; Environment and Natural Resources Division, United States Department of Justice, Washington, D.C.; Simma Kupchan and CourtneyWeber, Office of General Counsel and Office of Regional Counsel, United States Environmental Protection Agency, Washington, D.C.; for Respondent.

Before: William A. Fletcher and Michelle T. Friedland, Circuit Judges, and Frederic Block,^* District Judge.

Order;

Opinion by Judge W. Fletcher

ORDER

Respondent's petition for panel rehearing, Docket Entry No. 43, is GRANTED without further oral argument.

The Opinion filed September 16, 2021, and reported at 13 F.4th 896, is hereby WITHDRAWN and replaced with a superseding Opinion filed concurrently with this Order.

The final paragraphs of the Opinion previously read:

The Idaho Permit forbids underground discharges from production areas and dry weather discharges from land-application areas. However, the Permit contains no monitoring requirements for either kind of discharge. Because the Permit does not require monitoring that would ensure compliance with its effluent limitations, the EPA's issuance of the Permit was arbitrary, capricious, and a violation of law. We grant the petition and vacate the Permit.

Petition GRANTED and Permit VACATED.

Food & Water Watch v. U.S. Env't Prot. Agency, 13 F.4th 896, 907 (9th Cir. 2021). The final paragraphs in the superseding Opinion now read:

The Idaho Permit forbids underground discharges from production areas and dry weather discharges from land-application areas. However, the Permit contains no monitoring requirements for either kind of discharge. Because the Permit does not require monitoring that would ensure compliance with its effluent limitations, the EPA's issuance of the Permit was arbitrary, capricious, and a violation of law. We grant the petition and remand the Permit to the EPA for further proceedings consistent with this opinion.

Petition GRANTED and Permit REMANDED.

The parties may file new petitions for rehearing pursuant to Fed. R. App. P. 40.

W. FLETCHER, Circuit Judge:

The Clean Water Act ("CWA") prohibits the "discharge of any pollutant" by "any person" from any "point source" into the navigable waters of the United States except when the discharge is authorized by a permit issued under the National Pollutant Discharge Elimination System ("NPDES"). 33 U.S.C. §§ 1311(a), 1342. In May 2020, the EPA issued a General NPDES Permit for Concentrated Animal Feeding Operations ("CAFOs") in Idaho (the "Idaho Permit" or "Permit"). Final Reissuance of NPDES General Permit for CAFOs in Idaho, 85 Fed. Reg. 28,624 (May 13, 2020). Two environmental organizations, Food & Water Watch and Snake River Waterkeeper ("Petitioners"), challenge the Permit, contending that its issuance was arbitrary, capricious, and in violation of law because it lacks sufficient monitoring provisions to ensure compliance with its discharge limitations. We agree and grant the petition.

I. Background

Concentrated animal feeding operations house, feed, and raise thousands of animals in confined locations. NPDES Permit Regulation and Effluent Limitation Guidelines and Standards for CAFOs, 68 Fed. Reg. 7,176, 7,179 (Feb. 12, 2003) (codified at 40 C.F.R. Parts 9, 122, 123, and 412) [hereinafter "the 2003 Rule"]. Nationwide, CAFOs generate more than 500 million tons of animal manure annually, which "when improperly managed, can pose substantial risks to the environment and public health." Id. In 2008, the EPA estimated that approximately 75 percent of CAFOs discharge pollution into waterways. See Revised NPDES Permit Regulation and Effluent Limitations Guidelines for CAFOs in Response to the Waterkeeper Decision, 73 Fed. Reg. 70,418, 70,469 (Nov. 20, 2008) (codified at 40 C.F.R. Parts 9, 122, and 412) [hereinafter "the 2008 Rule"]; see also 2003 Rule at 7,181.

CAFOs manage manure by collecting, storing, and treating it, and applying it to fields as fertilizer. Thomas R. Head, Local Regulation of Animal Feeding Operations: Concerns, Limits, and Options for Southeastern States , 6 Env't Law. 503, 515–16 (2000). Manure is typically stored in large open-air tanks or anaerobic lagoons. Id. at 515. Lagoons pose two serious hazards. First, "even the most well-managed lagoons usually fill to capacity within just two or three years." Id. Unless excess liquid is removed, a lagoon will overflow. Id. Second, the potential "always exists that lagoons will fail or rupture and pollute surface waters or allow waste to seep into groundwater." Id. "[E]ven assuming the lagoons were constructed pursuant to [Natural Resource Conservation Service] standards, these standards specifically allow for permeability and, thus, the lagoons are designed to leak." Cmty. Ass'n for Restoration of the Env't, Inc. v. Cow Palace, LLC , 80 F. Supp. 3d 1180, 1223 (E.D. Wash. 2015). Depending on the character of the soil surrounding the lagoon, animal waste leaked from lagoons can reach groundwater that can, in turn, reach navigable waters. CAFOs typically use animal waste as fertilizer for their fields. While application of animal waste can be safe, improper application, rainfall, or irrigation can result in discharges that reach navigable waters.

Because of the significant environmental threats CAFOs pose, the EPA has regulated them since the mid-1970s. See 41 Fed. Reg. 11,458 (Mar. 18, 1976) ; 39 Fed. Reg. 5,704 (Feb. 14, 1974).

A. Statutory Background

The objective of the CWA is to "restore and maintain the chemical, physical, and biological integrity of the Nation's waters." 33 U.S.C. § 1251(a). To achieve this objective, the CWA prohibits a point source from discharging pollutants into the "navigable waters of the United States" without an NPDES permit. Id. § 1311(a). The CWA defines "discharge of a pollutant" to mean "any addition of any pollutant to navigable waters from any point source." Id. § 1362(12). A "point source" is "any discernible, confined and discrete conveyance ... from which pollutants are or may be discharged." Id. § 1362(14).

An NPDES permit limits the amounts and kinds of pollutants that may be discharged from a point source. See id. § 1311(a) (making it unlawful for a point source to discharge a pollutant without first obtaining a permit and complying with its terms). Every NPDES permit must set forth "effluent limitations," that is, certain "restriction[s] ... on [the] quantities, rates, and concentrations of chemical, physical, biological, and other constituents which are discharged from point sources into navigable waters." Id. §§ 1311, 1342, 1362(11); see also S. Fla. Water Mgmt. Dist. v. Miccosukee Tribe of Indians , 541 U.S. 95, 102, 124 S.Ct. 1537, 158 L.Ed.2d 264 (2004) ("Generally speaking, the NPDES requires dischargers to obtain permits that place limits on the type and quantity of pollutants that can be released into the Nation's waters."). Specific effluent limitations in individual NPDES permits are based on general "effluent limitation guidelines" ("ELGs") promulgated by the EPA. See EPA v. Cal. ex. rel. State Water Res. Control Bd. , 426 U.S. 200, 205 (1976) ("An NPDES permit serves to transform generally applicable effluent limitations and other standards including those based on water quality into the obligations ... of the individual discharger.").

Section 1362(14) of the CWA lists a CAFO as a point source. Id. ("The term ‘point source’ means any discernible, confined and discrete conveyance, including but not limited to any ... concentrated animal feeding operation ... from which pollutants are or may be discharged.") (emphasis added). Section 1362(14) provides that the term point source "does not include agricultural stormwater discharges and return flows from irrigated agriculture." Id.

Because CAFOs are themselves point sources, the EPA has interpreted the stormwater and irrigation discharge exceptions as not applying when such discharges are from a CAFO. For example, the Idaho Permit prohibits dry weather discharges from a CAFO's land application area. Discharges from irrigation return flows are included in the prohibition on dry-weather discharges. See Idaho Permit at 10 ("No Dry Weather Discharge. There shall be no dry weather discharge of manure, litter, or process wastewater to a water of the United States from a CAFO as a result of the application of manure, litter or process wastewater .... This prohibition includes discharges ... through tile drains, ditches or other conveyances, and irrigation return. " (emphasis added)). Further, while the EPA has partially incorporated the stormwater discharge exception into a CAFO regulation, it has done so as a matter of regulatory discretion rather than statutory compulsion. See 40 C.F.R. § 122.23(e) (waiving the requirement for an NPDES permit for stormwater discharges from CAFO fields if the CAFO has land applied manure, litter, or process wastewater in accordance with site-specific nutrient management practices). But see Waterkeeper Alliance, Inc. v. U.S. E.P.A , 399 F.3d 486, 507 (2d Cir. 2005) ; Concerned Area Residents for the Env't v. Southview Farm , 34 F.3d 114, 121 (2d Cir. 1994).

B. CAFO Regulations

The EPA regulates both production areas and land-application areas of CAFOs. Production areas include animal confinement areas (where animals are confined for feeding or other purposes), manure storage areas including lagoons (where manure and...