Food & Water Watch, Inc. v. United States Environmental Protection Agency, No. 20-71554 (9th Cir. 2021)Annotate this Case
Environmental organizations challenged a National Pollutant Discharge Elimination System (NPDES) Permit issued by the EPA for Idaho Concentrated Animal Feeding Operations (CAFOs) under the Clean Water Act. On CAFOs, manure is typically stored in lagoons; waste that leaks from lagoons can reach groundwater that can reach navigable waters. Since the 1970s, the EPA has regulated both CAFO production areas (animal confinement, storage, lagoons) and land-application areas (fields where manure and process wastewater are applied as fertilizer).
The Ninth Circuit held that the challenge was timely, rejecting the EPA’s contention that the Permit largely relied on a 2003 Rule. The Permit lacked sufficient monitoring provisions to ensure compliance with the Permit’s “zero discharge” requirements for both production and land-application areas. EPA's discretion in crafting appropriate monitoring requirements for each NPDES permit is not unlimited. The Permit had sufficient monitoring requirements for above-ground discharges from production areas; CAFOs were required to perform daily inspections. The Permit had no monitoring provisions for underground discharges from production areas. While the Permit flatly prohibited discharges from land-application areas during dry weather it had no monitoring provisions, although the record showed that such discharges can occur during irrigation of fertilized CAFO fields.