Food & Water Watch v. Environmental Protection Agency, No. 20-71554 (9th Cir. 2021)Annotate this Case
In an order, the panel granted a petition for panel rehearing, withdrew the opinion filed September 16, 2021, and replaced it with a superseding opinion that granted a petition for review brought by environmental organizations challenging a National Pollutant Discharge Elimination System (NPDES) Permit issued by the EPA for Concentrated Animal Feeding Operations (CAFOs) in Idaho.
In the superseding opinion, the panel wrote that, 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. The panel granted the petition and remanded the Permit to the EPA for further proceedings consistent with this opinion.
Court Description: Clean Water Act. The panel granted a petition for panel rehearing, withdrew the opinion filed September 16, 2021, and replaced it with a superseding opinion that granted a petition for review brought by environmental organizations challenging a National Pollutant Discharge Elimination System (“NPDES”) Permit issued by the Environmental Protection Agency (“EPA”) for Concentrated Animal Feeding Operations (“CAFOs”) in Idaho. The Clean Water Act 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 NPDES. CAFOs house, feed, and raise thousands of animals in confined locations, and they generate animal manure, which can pose substantial risks to the environment and public health. Manure is typically stored in lagoons, and animal waste that leaks from lagoons can reach groundwater that can, in turn, reach navigable waters. The EPA has regulated CAFOs since the mid-1970s. The EPA regulates both production areas and land-application areas of CAFOs. Production areas include animal confinement areas, manure storage areas including lagoons, raw materials storage areas, and waste containment areas. Land-application areas are fields where manure, litter, and process wastewater are applied as fertilizer. FOOD & WATER WATCH V. USEPA 3 The panel held that the petitioners’ challenge was timely. The parties agreed that petitioners challenged the Idaho Permit within 120 days of the issuance. The panel rejected the EPA’s contention that the Permit largely relied on a 2003 Rule and that the petition was therefore untimely. The panel agreed with petitioners’ contention that the Permit lacked sufficient monitoring provisions to ensure compliance with the Permit’s “zero discharge” requirements for both production and land-application areas, and therefore, it was arbitrary, capricious, and an abuse of discretion, and not in accordance with the law. The statutory and regulatory framework gives discretion to the EPA in crafting appropriate monitoring requirements for each NPDES permit, but the EPA’s discretion is not unlimited. Concerning production areas, the panel held the Permit had sufficient monitoring requirements for above-ground discharges from production areas. The CAFOs were required to perform daily inspections, and these mandated inspections were, in effect, monitoring requirements. The panel deferred to the EPA’s expertise, and held that these provisions were sufficient to ensure compliance with the Permit’s zero- discharge effluent limitations from production areas. The panel held that the Permit had no monitoring provisions for underground discharges from production areas. Without a requirement that CAFOs monitor waste containment structures for underground discharges, there was no way to ensure that production areas comply with the Permit’s zero-discharge requirement. Concerning land-application areas, the panel held that the Idaho Permit flatly prohibited discharges from land- 4 FOOD & WATER WATCH V. USEPA application areas during dry weather. The Permit, however, had no monitoring provisions for dry weather discharges from land-application areas, even though the record before the EPA showed that such discharges can occur during irrigation of fertilized CAFO fields. Without a requirement to monitor runoff from irrigated CAFO fields, there was no way to ensure that a CAFO is complying with the Permit’s dry weather no-discharge requirement for land-application areas. The panel therefore granted the petition and remanded the permit to the EPA for further proceedings consistent with this opinion.
This opinion or order relates to an opinion or order originally issued on September 16, 2021.