Public Participation The Environmental Plaintiffs also argued that the CAFO Rule is arbitrary and capricious because it violates the CWA’s public participation requirements. The Court agreed, ruling that the EPA’s development of the CAFO Rule and the underlying NPDES permitting scheme prevent the public from carrying out its usual role in regulatory development and “effectively shields the nutrient management plans from public scrutiny and comment.” 7 The CWA mandates that the public be allowed to comment on NPDES permits and assist in the development and enforcement of effluent limitations.8 The Court found that the permitting scheme deprives the public of these opportunities, because the CAFO Rule does not require the plans be part of the NPDES permit, thereby denying the public the chance to comment on those plans. Furthermore, the public cannot enforce through a citizen suit the terms of a plan it does not have access to.
mits must include the terms of the nutrient management plans developed by the individual CAFOs and the EPA must provide for review of those plans by the responsible permitting authority. Furthermore, CAFOs cannot be required to prove that they do not have the potential to discharge pollutants. Although the CAFO Rule applies only to certain livestock operations, this ruling could have an impact on the way EPA administers its regulations for concentrated aquatic animal production (CAAP) facilities issued in 2004. The time has passed to challenge the legality of the CAAP guidelines, but EPA may err on the side of caution and begin requiring CAAP facilities to include the terms of their best management practice (BMP) plans in future NPDES permits. This would harmonize the agency’s pollution programs and enable public participation. Endnotes 1. 33 U.S.C. § 1362(14). 2. 40 C.F.R. § 122.42(e)(1)(i)-(ix). 3. Waterkeeper Alliance, Inc. v. EPA , 399 F.3d 486, 498 (citing 33 U.S.C. § 1342(a)(2) (2005)) (emphasis added). 4. Id. at 499. 5. Id. at 501. 6. 33 U.S.C. § 1362(11). 7. Waterkeeper, 399 F.3d at 503. 8. 33 U.S.C. § 1251(e); § 1342(a); §1342 (b)(3) (2005).
NPDES Registration Under existing regulations, CAFOs are required to either apply for an NPDES permit or prove that the farm has no potential to discharge pollutants. The American Farm Bureau Federation, National Chicken Council, and National Pork Producers Council claimed the EPA had exceeded its statutory authority by imposing such a requirement. The court stated that the CWA gives the EPA authority to regulate the discharge of pollutants through the development of effluent limitaPhotograph of hog farm courtesy of Natural Resources Conservation Service. tions and the issuance of NPDES permits. The definition of “discharge of any pollutant,” however, does not include potential discharges. The Court held that the EPA cannot require CAFOs to apply for an NPDES permit unless they are actually discharging pollutants. Conclusion The court vacated several portions of the CAFO Rule it found to be arbitrary and capricious under the APA and in violation of the CWA. NPDES perVolume 4, No. 2 The SandBar
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