This is not a substitute for legal advice.
Recently, the 9th Circuit Court of Appeals vacated Idaho’s Concentrated Animal Feeding Operation (CAFO) National Pollutant Discharge Elimination System (NPDES) permit for lack of monitoring underground discharges and potential discharges from dry weather applications. Food and Water Watch (FWW) and the Snake River Waterkeepers (SRW) brought the lawsuit. The decision vacates the permit back to EPA to determine its next steps. The decision is in Food & Water Watch v. EPA.
In 2019, EPA issued for public comment a draft version and fact sheet for the Idaho CAFO NPDES permit. The permit was to go into effect in mid-2020. FWW and SRW brought a challenge to the permit. The groups claimed that the permit failed to provide proper monitoring as required by the Clean Water Act.
The CWA requires that NPDES permits include monitoring provisions to ensure compliance. The court agreed with EPA that the permit for the production areas contained sufficient monitoring requirements for above ground discharges from the production areas. The permit required daily and weekly inspections of water lines, stormwater diversion devices, runoff diversion structures, and waste storage containers, which were considered sufficient monitoring.
The permit did not contain sufficient monitoring for underground discharges from production areas which, according to the court, went against EPA’s own guidance that local CAFO permits were the best means to handle underground discharges. The court agreed with FWW and SRW that the Idaho permit did not contain sufficient monitoring for underground discharges from production areas.
While the court also agreed that the permit did not contain monitoring for dry weather land application, EPA had heard from some in the public comments that dry weather applications could take place with irrigation. EPA assumed any applications would take place according to a nutrient management plan and there would be no runoff of pollutants. The court found the record lacking to support EPA’s assumption. Based on all this, the court vacated the Idaho CAFO permit and remanded it back to EPA to cure the monitoring issues.
What Happens Next?
The permit has been remanded back to EPA to fix the issues which the 9th Circuit raised in vacating the permit. EPA will need to add provisions for underground discharges into the permit monitoring. At the same time, EPA must better justify the lack of monitoring related to dry weather applications and show that pollutants are not likely to leave the field when done according to the nutrient management plan. EPA may also have to look at monitoring provisions as well for these dry weather applications. Ultimately, EPA may consider appealing to the U.S. Supreme Court.
Food & Water Watch v. EPA, No. 20-71554, 2021 WL 4203496 (9th Cir. Sept. 16, 2021).