Tuesday, July 27, 2010

CAFO Implementation Guidance under the CWA

— Nick Welding, UNL Law '11

The recent release of the EPA’s “Implementation Guidance on CAFO Regulations”is likely to add to the conflict between the EPA, environmental groups, and CAFO owners/operators regarding proper implementation of the Clean Water Act (CWA). The guidance, released on May 28th, is the product of a settlement agreement between the EPA and Natural Resources Defense Council, Sierra Club, and Waterkeeper Alliance. According to the settlement, the guidance is to assist permitting authorities with implementation of the NPDES permit regulations and Effluent Limitations Guidelines and Standards for CAFOs. The released guidance identifies certain factors and circumstances that the EPA believes will lead to a “discharge into waters of the United States,” which, in turn, will trigger the NPDES permit requirement. However, none of the standards or levels provided by the guidance are dispositive. Overall, the guidance seems to further obscure the already muddy waters surrounding exactly when a CAFO must obtain a NPDES permit and whether the EPA has authority to regulate CAFO’s under the Clean Water Act absent an actual “discharge”.

The EPA’s first attempt to require CAFOs to obtain NPDES permits absent an actual “discharge” was in 2003. Under the 2003 regulations, any CAFO that was found to have the “potential to discharge” was required to obtain a permit, whether or not an actual discharge occurred. Opponents of the 2003 rule successfully thwarted this attempt in Waterkeeper Alliance v. EPA, where the 2nd Circuit invalidated several parts of the rule, including the “potential to discharge” permit requirement. The 2nd Circuit held that the EPA lacked statutory authority to require a NPDES permit when a “discharge” has not occurred. In direct response to Waterkeeper, the EPA promulgated a revised rule in 2008. In the 2008 rule, the EPA again attempted to require CAFO’s to obtain a NPDES permit absent an actual discharge. Under the 2008 rule, a CAFO must obtain a NPDES permit if it is found to “propose to discharge.” The rule calls for an objective assessment by a CAFO owner/operator to determine if the operation is designed, constructed, operated, and maintained such that a discharge will occur.

Following the release of the 2008 regulation, environmental groups sued the EPA and obtained the EPA’s agreement to publish the Implementation Guidance at issue. According to the settlement, the guidance is to assist permitting authorities by “specifying the kinds of operations and factual circumstances that EPA anticipates may trigger the duty to apply for permits as discharging or proposing to discharge.” CAFO owners/operators/permitting authorities are to consider these factors and circumstances when determining if a particular operation “proposes to discharge” and is subject to NPDES permit requirements. The EPA acknowledges in the new guidance that no one factor is determinative as to whether a permit is required. Rather, the factors are to be considered collectively.

The new guidance seeks to supplement the 2008 regulations by calling for an assessment of climatic, hydrologic, and topographic factors in “relevant areas of consideration” for all CAFO’s, regardless of the type of on-site livestock. These areas include the animal confinement, waste storage and handling, mortality management, and land application areas. These areas are considered potential sources of pollution that are related to the design, construction, operation and maintenance of a CAFO. The guidance then identifies livestock-specific factors that should be considered for dairy, beef cattle, swine, and poultry CAFO’s.

Since the guidance is based off of factors and circumstances other than an actual discharge into waters of the U.S., it seems as though the EPA is attempting to create a regulatory presumption that a CAFO which does not satisfy the identified appropriate factors and circumstances will eventually (and unlawfully, unless permitted to do so) discharge into waters of the U.S. Even before its release, some environmentalists believed that the EPA would ground its authority to establish such a presumption on a footnote found in Waterkeeper. In the footnote, the 2nd Circuit appears to hint that the EPA can create a presumption by stating, “we need not consider whether the record here supports the EPA's determination that Large CAFOs may reasonably be presumed to be such potential dischargers... In our view, the EPA has marshaled evidence suggesting that such a prophylactic measure may be necessary to effectively regulate water pollution from Large CAFOs, given that Large CAFOs are important contributors to water pollution and that they have, historically at least, improperly tried to circumvent the permitting process.”

Even if the EPA does have the authority establish a regulatory presumption and to require CAFO’s to obtain NPDES permits absent an actual discharge, the question remains how much weight it should be given. The guidance states that it is not legally enforceable and does not confer any legal rights or impose any legal obligations on any CAFO operation. The EPA suggests that an objective assessment will provide permitting authorities with a common basis for determining if the CAFO is required to obtain a permit. Nevertheless, the EPA asserts in pending litigation in the 5th Circuit (National Pork Producers Council, et al. v. EPA, et al) that it has the authority under Chemical Manufacturers Association v. DOT (D.C. Circuit) to establish appropriate regulatory presumptions and that courts have and will give deference to these presumptions.

When the guidance hits the ground and is put into use by permitting authorities, it will be interesting to see how a combination of factors will lead to a final determination of whether a permit is required. A substantial amount of disagreement is likely when state agencies, which are responsible for issuing NPDES permits in accordance with the CWA, base permit requirements off of an “objective assessment” performed by the CAFO owner/operator — an objective assessment that consists of an almost endless number of factors, some of which are not within the control of the CAFO owner/operator. It is reasonable to surmise that avoiding such an unpredictable and potentially varied basis for determining permit requirements was in the mind of the 5th Circuit when it limited EPA authority to actual discharges in Waterkeeper.

At the end of the day, one has to question the EPA‘s attempt to sidestep Waterkeeper and wonder how the costly new requirements will impact CAFO’s and production agriculture as a whole. Of course protecting water quality is crucial and CAFO’s have traditionally been able to avoid CWA coverage, but at what point does the CAFO regulation not fit within the intent of the CWA and instead call for an effort that addresses both agricultural and environmental interests?


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