Courts and the EPA interpret NPDES general permit requirements for CAFOS.

• Author: Centner, Terence J.
• Position: National Pollutant Discharge Elimination System, concentrated animal feeding operations

1. INTRODUCTION II. OBJECTIONS TO REGULATIONS AUTHORIZING DISCHARGES BY CAFOS A. Land Application of Manure B. General Permits III. MICHIGAN'S REGULATORY CHALLENGE A. Discharge Rates of a Nutrient Management Plan B. Public Participation IV. FEDERAL EFFLUENT LIMITATIONS AND MICHIGAN'S REQUIREMENTS A. Imposing Effluent Limitations B. Michigan's Water Quality Standards V. THE FUTURE OF "GENERAL PERMITS" VI. CONCLUSION I. INTRODUCTION

   The continued impairment of U.S. navigable waters despite more than thirty-five years of federal efforts under the Clean Water Act (1) presents inexorable challenges. By enacting the Federal Water Pollution Control Act in 1972--better known as the Clean Water Act--Congress hoped "to restore and maintain the chemical, physical, and biological integrity of the Nation's waters." (2) The Act adopts the basic rule that unpermitted discharges of pollutants from point sources into navigable waters are not allowed, (3) and a permitting system authorizes discharges of limited amounts of pollutants. (4) Although the Act has been successful in addressing many egregious pollution situations, the application of the National Pollutant Discharge Elimination System (NPDES) program to all point sources remains an elusive goal. (5) It is estimated that forty-five percent of our rivers and streams and forty-seven percent of our lakes remain impaired. (6)

   To carry out the purposes of the Act, the Administrator of the United States Environmental Protection Agency (EPA) was authorized to prescribe additional regulations for effluent limitations and supplemental best management practices to control pollutant runoff. (7) Pursuant to this statutory authority, EPA sought to reduce pollution from concentrated animal feeding operations (CAFOs), which are large animal producing entities with great quantities of manure that have the potential to adversely affect the quality of nearby waters. (8) Congress expressly included CAFOs in the Clean Water Act's definition of "point source" of pollution. (9) Therefore, a CAFO must obtain a permit before discharging into navigable waters. (10) EPA defines CAFO as an animal feeding operation that meets additional characteristics concerning numbers of animals at a single facility and discharges pollutants, (11) and a federal CAFO Rule articulates provisions that apply to qualifying discharges. (12) Regulated discharges from the land application of CAFO manure are limited to those applied to ensure appropriate agricultural utilization of the nutrients. (13)

   Over the past several years, environmental groups and others have initiated lawsuits against polluters and governmental agencies in an attempt to reduce the impairment of waters by CAFOs. (14) Recently, the twin issues of information required to be submitted prior to authorization for permitted discharges and opportunities for public input during the NPDES permitting process have forced courts and regulators to reassess the use of general permits. Judicial pronouncements by two courts and revisions in 2008 to the federal CAFO Rule illuminate difficulties in structuring general permitting regulations to contain requisite effluent limitations and provide opportunities for public input. (15) Since many state agencies depend on general permits to reduce their administrative burdens, these pronouncements offer insights on how permitting authorities may need to restructure general permitting provisions to meet statutory requirements.

2. OBJECTIONS TO REGULATIONS AUTHORIZING DISCHARGES BY CAFOs

   Water pollution from animal feeding operations has been a topic of litigation since the 1990s. (16) Due to governmental reports showing agriculture as a major contributor to impaired water quality, (17) environmental groups pressed for more stringent regulations. (18) In 1992, EPA entered a consent decree whereby a new CAFO Rule would be adopted to more effectively limit pollutants entering federal waters. (19) After lengthy deliberations and significant public input, EPA adopted a revised CAFO Rule that became effective on April 14, 2003. (20) Both environmental and farm groups were disappointed in various provisions of the 2003 Rule, leading to the challenge in Waterkeeper Alliance, Inc. v. United States Environmental Protection Agency (Waterkeeper). (21) The environmental petitioners alleged flaws in provisions regarding governmental oversight and were successful with some of their arguments. (22) The Second Circuit Court of Appeals vacated selected provisions of the Rule and remanded other provisions to EPA for further analysis and clarification. (23)

   One of the vacated provisions of the Rule concerned the submission of effluent limitations contained in nutrient management plans prior to approval of NPDES permits. (24) In the 2003 CAFO Rule, EPA had decided that the terms of nutrient management plans were not required to be included in NPDES permit applications. (25) The Waterkeeper court disagreed with EPA's decision. (26) Because the definition of effluent limitation means any restriction on quantities, rates, and concentrations of nutrients, (27) nutrient management plans are effluent limitations. (28) Therefore, the failure to require the terms of the nutrient management plans be included in NPDES permits violated the Clean Water Act (29) and the Administrative Procedure Act. (30)

   Another objection to CAFO permitting provisions was recently raised in Sierra Club Mackinac Chapter v. Department of Environmental Quality (Sierra Club). (31) The petitioner challenged Michigan's CAFO permitting provisions, claiming that authorization for discharges under the state's general permit did not satisfy the requirements of the Clean Water Act concerning discharge rates and public participation. (32) The Michigan appellate court agreed, reversed the circuit court, and remanded the issues for further proceedings. (33) Sierra Club extends the Waterkeeper submission and review of effluent limitations requirements and mandates public participation in developing nutrient management plans.

   1. Land Application of Manure

      The federal CAFO Rule requires effluent limitations to be set forth in NPDES permits for discharges occurring from land application of manure from CAFOs. (34) Regulated land application areas include all lands under the control of a CAFO owner or operator to which manure from the production area is or may be applied. (35) Applying manure to land is viewed favorably as a sustainable agronomic practice that has considerable value in providing nutrients for crop production and contributing to soil fertility. (36) Because manure application at agronomic rates has a minimal potential to adversely affect water quality, (37) it is allowed if the CAFO owner or operator meets the Clean Water Act's requirements for an NPDES permit. (38)

      Thereby, the CAFO Rule differentiates between the application of manure as a fertilizer, which is permitted, and inappropriate applications of manure. (39) The Rule provides that manure needs to be "applied in accordance with site specific nutrient management practices that ensure appropriate agricultural utilization of the nutrients." (70) CAFO owners and operators meet this requirement by implementing a nutrient management plan whereby manure is used to provide suitable nutrients for plant growth and crop production. (41) By limiting applications of nutrients necessary for agronomic production, a nutrient management plan prevents unacceptable disposal practices that might impair water quality. (42) Simultaneously, the Clean Water Act recognizes that agricultural stormwater discharges are permitted. (43)

      While the Clean Water Act provides for federal NPDES permits to authorize discharges, most states have assumed a delegation of authority from the federal government to issue state permits. (44) In forty-five states, federal NPDES permits are suspended so that a state agency issues permits. (45) States implementing permitting programs are required to delineate discharge standards and limitations at least as stringent as those required by federal law. (46) For example, the Michigan Department of Environmental Quality has authority to administer the state's NPDES program under the Natural Resources and Environmental Protection Act. (47)

   2. General Permits

      Administrative burdens in issuing permits to large numbers of similarly situated dischargers led EPA to develop regulations for general permits. (48) Regulations allow coverage of multiple facilities in a geographical area under a blanket permit wherein industries are categorized according to similarities in size and the nature of their runoff potential. (49) Under a general permit, the permitting authority issues "notices of intent" rather than individualized permits, which drastically reduces the amount of time required for administrative review. (50)

      A notice of intent is a formal acceptance of permitting terms elaborated in the approved general permit so that a discharger can receive authority to discharge. (51) Issuance Of notices of intent under a general permit has resulted in fewer details of dischargers' nutrient management requirements and public participation opportunities than generally accompany individual NPDES program permits. (52) Notices of intent under general permits have been authorized for CAFOs, municipal storm waters, and water treatment facilities. (53)

      Controversy exists as to whether authority to discharge after issuance of a notice of intent is pursuant to a permit or something else. If a notice of intent is not equivalent to a permit, the permitting requirements of the Clean Water Act do not apply. (54) In Environmental Defense Center, Inc. v. EPA, (55) the Ninth Circuit Court of Appeals found that notices of intent were permit applications that were functional equivalents of NPDES permits. (56) This meant that the public availability of permit application materials and an opportunity for public participation in the...