Brad J. Moore, Stritmatter Kessler Whelan Withey Coluccio, Seattle, WA, Charles M. Tebbutt, Daniel C. Snyder, Law Offices of Charles M. Tebbutt PC, Eugene, OR, Elisabeth A. Holmes, Paige Michelle Tomaselli, San Francisco, CA, Jessica L. Culpepper, Public Justice, Washington, DC, for Plaintiffs.

Debora Kathleen Kristensen, Jeffrey C. Fereday, Preston N. Carter, Givens Pursley LLP, Boise, ID, Brendan Victor Monahan, Dustin E. Yeager, Sean A. Russel, Stokes Lawrence Velikanje Moore & Shore, Yakima, WA, Mathew Lane Harrington, Stokes Lawrence PS, Seattle, WA, for Defendant.

ORDER DENYING DEFENDANTS' JOINT MOTION TO DISMISS

THOMAS O. RICE, District Judge.

BEFORE THE COURT is Defendants' Joint Motion to Dismiss (ECF No. 38). Also before the Court is Defendants' Motion to Strike Declarations (ECF No. 63). These matters were heard with oral argument on June 7, 2013. Charles M. Tebbutt, Brad J. Moore, and Elisabeth A. Holmes appeared on behalf of the Plaintiffs. Debora K. Kristensen, Dustin E. Yeager, Preston N. Carter, and Mathew L. Harrington appeared on behalf of Defendants. The Court has reviewed the briefing and the record and files herein, had the benefit of oral argument, and is fully informed.

BACKGROUND

Defendants are diaries housing a large number of animals, and must handle significant amounts of manure generated by the herd. ECF No. 37 at ¶¶ 33, 37 (First Amended Complaint). The manure is managed in various ways, including: transforming it into compost and selling it, applying it to agricultural fields as fertilizer, and storing liquid manure in lagoons until it is applied to agricultural fields. Id. at ¶¶ 39–40, 42.Plaintiffs ("CARE") allege that manure is a solid waste under the Resource Conservation and Recovery Act ("RCRA") because when applied to agricultural fields at above-agronomic levels and leaked from lagoons storing liquid manure it is discarded; thereby causing high levels of nitrates in underground drinking water. CARE alleges that this action is a violation of the RCRA because (1) it causes an imminent and substantial danger to public health and the environment (42 U.S.C. § 6972(a)(1)(B)); and (2) constitutes illegal open dumping (42 U.S.C. § 6945(a)).

In March 2013, the Environmental Protection Agency ("EPA") exercised its power under section 1431 of the Safe Drinking Water Act ("SDWA"), and entered a Consent Order with Defendants addressing the high level of nitrates in underground drinking water. ECF No. 38–1; see W.R. Grace & Co. v. EPA, 261 F.3d 330, 338–39 (3d Cir.2001) (EPA Administrator may "take action necessary to protect the public's health from an imminent and substantial endangerment created by contaminants in a public water system or an underground source of drinking water."). The "goal" of the Consent Order is "to achieve drinking water quality that meets the EPA maximum contaminant level ('MCL') for nitrate of 10 mg/L in the drinking water aquifer beneath and downgradient of the Dairy Facilities."ECF No. 38–1, Appx. B at p. 1.

On February 14, 2013, CARE filed the instant lawsuit alleging violations under RCRA. ECF No. 1. CARE was granted leave to file an Amended Complaint in April 2013. See ECF No. 37. Presently before the Court is Defendants' joint motion to dismiss^[1] and motion to strike declarations.

DISCUSSION

I. Defendant's Motion to Strike Declarations

Defendants ask the Court to strike declarations submitted by CARE as part of their response to Defendants' joint motion to dismiss, including: the Shaw Declaration (ECF No. 48) and the "Standing Declarations" (ECF No. 49–53). However, the Court does not rely on any of this evidence for the substance of its ruling on Defendants' joint motion to dismiss. Rather, the Court relies entirely on the Amended Complaint and additional materials appropriately incorporated by reference or a matter of judicial notice. See United States v. Ritchie, 342 F.3d 903, 907–908 (9th Cir.2003) (generally a court may not consider material beyond the pleadings on a 12(b)(6) motion without converting the motion to dismiss to a motion for summary judgment, however, a court may consider materials including documents attached to the complaint, documents incorporated by reference in the complaint, and matters of judicial notice, without converting the motion). Thus, Defendants' motion to strike these exhibits is denied as moot.

II. Defendant's Joint Motion to Dismiss

A. Standard of Review

To withstand a motion to dismiss pursuant to Rule 12(b)(6), a complaint must set forth factual allegations sufficient "to raise a right to relief above the speculative level." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). The tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice. Id. ("Although for the purposes of a motion to dismiss we must take all of the factual allegations in the complaint as true, we are not bound to accept as true a legal conclusion couched as a factual allegation" (internal quotation marks omitted)). A pleading that offers "labels and conclusions" or "a formulaic recitation of the elements of a cause of action will not do."Id.

Under Federal Rule of Civil Procedure 8(a)(2), a pleading must contain a "short and plain statement of the claim showing that the pleader is entitled to relief."The pleading standard set by Rule 8 of the Federal Rules of Civil Procedure"does not require 'detailed factual allegations,' but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009).Rule 8 marks a notable and generous departure from the hyper-technical, code-pleading regime of a prior era, but it does not unlock the doors of discovery for a plaintiff armed with nothing more than conclusions. Id. at 678–79.In assessing whether Rule 8(a)(2) is satisfied, the Court first identifies the elements of the asserted claim based on statute or case law. Id. at 678. The Ninth Circuit follows the methodological approach set forth in Iqbal for the assessment of a plaintiff's complaint:

"[A] court considering a motion to dismiss can choose to begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth. While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations. When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief."

Moss v. U.S. Secret Service, 572 F.3d 962, 970 (9th Cir.2009) (quoting Iqbal, 129 S.Ct. at 1950).

B. "Solid Waste" Under RCRA

"RCRA is a comprehensive statute that governs the treatment, storage, and disposal of solid and hazardous waste ... so as to minimize the present and future threat to human health and the environment." Meghrig v. KFC Western, Inc., 516 U.S. 479, 483, 116 S.Ct. 1251, 134 L.Ed.2d 121 (1996). Under the citizen suit provision of RCRA, CARE must establish that Defendants are contributing to the "handling, storage, treatment, transportation, or disposal of any solid or hazardous waste which may present an imminent and substantial endangerment to health or the environment." 42 U.S.C. § 6972(a) (1)(B). CARE does not allege that the manure is hazardous waste. Thus, the entire focus of the Court's analysis is whether the manure is a "solid waste" within the meaning of RCRA.

Pursuant to RCRA, "solid waste" is defined as "any garbage, refuse, sludge from a waste treatment plant, water supply treatment plant, or air pollution control facility and other discarded material, including solid, liquid, semisolid or contained gaseous material resulting from ... agricultural operations...." 42 U.S.C. § 6903(27) (emphasis added). RCRA does not define "discarded material." However, the Ninth Circuit has defined the term, according to its ordinary meaning, as "to cast aside; reject; abandon; give up." Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1041 (9th Cir.2004) (finding grass residue was not "solid waste" under RCRA). Further, the court in Safe Air found the reasoning of several extra-circuit cases persuasive in identifying whether a material qualifies as "solid waste," particularly: "(1) whether the material is 'destined for beneficial reuse or recycling in a continuous process by the generating industry itself;' (2) whether the materials are being actively reused, or whether they merely have the potential of being reused; (3) whether the materials are reused by its original owner, as opposed to use by a salvager or reclaimer."Id. at 1043 (internal citations omitted). Recently, the Ninth Circuit analyzed legislative history and further concluded that "[t]he key to whether a manufactured product is a 'solid waste,' then, is whether that product 'has served its intended purpose and is no longer wanted by the consumer.' " Ecological Rights Foundation v. Pacific Gas and Elec. Co., 713 F.3d 502, 515 (9th Cir.2013) (citing H.R.Rep. No. 94–1491(I) at 2 (1976), reprinted in 1976 U.S.C.C.A.N. 6238, 6240)); see also No Spray Coal., Inc. v. City of New York, 252 F.3d 148, 150 (2d Cir.2001) (finding pesticides are not "discarded" when sprayed in the air with the design of effecting their intended purpose). In Ecological Rights, the court found only that wood preservative that "escaped" from wooden utility poles through normal wear and tear at a certain age was not "discarded" and therefore not "solid waste;" but expressly did "not decide whether or under what circumstances PCP, wood preservative, or other material becomes a RCRA 'solid waste' when it accumulates in the environment as a natural, expected consequence of the material's intended use." Id . at 518.

Defendants argue that manure, used by the dairies as fertilizer, is not "discarded" and is therefore not "solid waste" within the meaning of RCRA. Instead, Defendants contend that the manure is a useful byproduct that is transformed into compost, and applied to surrounding agricultural fields as fertilizer after being stored as liquid manure in lagoons. Defendants point to RCRA's legislative history, as well as federal and state regulations,^[2] to support a finding that manure used as fertilizer is not "solid waste." ECF No. 38 at 8. In enacting RCRA, Congress found that "[a]gricultural wastes which are returned to the soil as fertilizers or soil conditioners are not considered discarded materials in the sense of this legislation."See Safe Air, 373 F.3d at 1045–46 (citing H.R.Rep. No. 94–1491(I) at 2 (1976), reprinted in 1976 U.S.C.C.A.N. 6238, 6240). Further, Defendants maintain that the manure is "useful" as a fertilizer, and is not transformed into "solid waste" if it is over-applied or leaked as an unintended consequence of its intended use. ECF No. 38 at 9; see Oklahoma v. Tyson Foods, Inc., 2010 WL 653032 at *10 (finding poultry litter applied as fertilizer does not become a "solid waste within the meaning of the RCRA when it is applied to the normal beneficial usage for which the product was intended merely because some aspect of the product is not fully utilized," for example if a particular material is more than "agronomic need"); Safe Air, 373 F.3d at 1046 n. 13 ("[t]he determination of whether grass residue has been discarded is made independently of how the materials are handled."). Finally, Defendants argue that imposing RCRA liability for the over-application or leakage of manure as "solid waste" would lead to the "untenable result" of requiring every dairy in the nation to operate as a sanitary landfill. See 42 U.S.C. § 6903(14) (defining an illegal "open dump" as "any facility or site where solid waste is disposed of which is not a sanitary landfill....").

CARE acknowledges that solid manure is used onsite as compost and sold off-site; and liquid manure is stored and then applied to fields. ECF No. 37 at ¶¶ 37–42. However, according to CARE, manure that has leaked into groundwater from the liquid manure lagoons and over-applied to fields is "discarded" because it has been abandoned and no longer serves a useful purpose. See Zands v. Nelson,779 F.Supp. 1254, 1261–62 (S.D.Cal.1991) (finding gasoline leaked from tanks at gasoline stations is a disposal of solid waste because it is no longer a useful product after it leaks into the soil, and has thus been "abandoned" via the leakage). Additionally, CARE takes issue with Defendants' contention that a useful product like manure is not transformed into solid waste when it is unintentionally leaked or allegedly over-applied. When manure is applied in quantities greater than a crop can take in, the nutrients can leach into the soil and groundwater. See e.g., CARE v. Nelson Faria Dairy LLC, 2011 WL 6934707 at *6–8 (E.D.Wash.2011). In their Amended Complaint, CARE alleges that Defendants apply too much manure to their fields, as reflected by high nitrate and phosphorus testing, which is not "agronomic" as manure nutrients become ineffective when over-applied. See ECF No. 37 at ¶¶ 62–78. At least one court was unpersuaded by the argument Defendants advance in their motion to dismiss that animal waste was not "solid waste" under the RCRA because it was used as fertilizer. See Water Keeper Alliance, Inc. v. Smithfield Foods, Inc., 2001 WL 1715730 at *4–5 (E.D.N.C.2001). The court found that "[t]he question of whether defendants return animal waste to the soil for fertilization purposes or instead apply waste in such large quantities that its usefulness as organic fertilizer is eliminated is a question of fact." Id.^[3]

The crux of CARE's argument is that it is plausible for manure to be "solid waste" after it has ceased to be "beneficial" or "useful" when it is over-applied to the fields and when it has leaked away from the lagoons. See Water Keeper Alliance, Inc. v. Smithfield Foods, Inc.,2001 WL 1715730 at *4–5 (E.D.N.C.2001). The Court agrees. In making this ruling, the Court does not ignore the practical ramifications of determining when manure may become "discarded" under RCRA after it has ceased to be "useful" or "beneficial," or when it has served its "intended purpose." Safe Air, 373 F.3d at 1042; Ecological Rights, 713 F.3d at 515.Nor does the Court disregard the express finding by Congress that "[a] gri cultural wastes which are returned to the soil as fertilizers or soil conditioners are not considered discarded materials in the sense of this legislation." See Safe Air, 373 F.3d at 1045–46.However, it is equally untenable that the over-application or leaking of manure that was initially intended to be used as fertilizer can never become "discarded" merely because it is "unintentionally" leaked or over-applied. CARE correctly argues that the distinguishing feature of the cases relied on by Defendants analyzed whether a certain material was "discarded" in the course of its ordinary use in amounts necessary to serve its intended purpose. See e.g., Ecological Rights, 713 F.3d at 515–16 ("wood preservative that has been applied to utility poles to preserve them is being used for its intended purpose...."). In stark contrast, CARE alleges that Defendants have applied manure in amounts beyond what is necessary to serve as fertilizer. See ECF No. 37 at ¶¶ 84–85. Thus, the cases cited by Defendants are factually distinguishable from the instant case on this important point.

As aptly stated by the court in Water Keeper,"no blanket animal waste exception excludes animal waste from the 'solid waste' definition. Instead, the determination of whether defendants 'return' animal waste to the soil as [fertilizer] is a functional inquiry focusing on defendants' use of the animal waste products rather than the agricultural waste definition." Water Keeper, 2001 WL 1715730 at *4. It would be premature at this stage of the proceedings to dismiss this case without any argument or evidence as to whether the manure was put to its intended use and/or used for beneficial purposes by Defendants under the circumstances unique to this case. See id. at *4–5 ("[t]he question of whether defendants return animal waste to the soil for fertilization purposes or instead apply waste in such large quantities that its usefulness as organic fertilizer is eliminated is a question of fact ."). The Court finds that the allegations in CARE's Amended Complaint state well-pleaded factual allegations that the Defendants over-applied and improperly applied manure to their fields, and allowed liquid manure to leak from lagoons, thereby "discarding" the manure and qualifying it as "solid waste" under RCRA. On this motion to dismiss, these allegations are entitled to the assumption of truth, and state a plausible claim for relief under the tenants of RCRA.

C. Anti–Duplication Provision in RCRA

The Defendant dairies are subject to a Consent Order issued by the EPA under the SWDA.^[4]ECF No. 38–1. Under terms of the Consent Order, the goal is to "achieve drinking water quality that meets EPA maximum contaminate levels ... for nitrate of 10 mg/L in the drinking water beneath and downgradient of the Diary Facilities."Id. at Appx. B, p. 1. Pursuant to the RCRA, "[n]othing in this chapter shall be construed to apply to ... any activity or substance which is subject to ... the [Safe Water Drinking Act] ... except to the extent that such application (or regulation) is not inconsistent with the requirements of such Acts." 42 U.S.C. § 6905(a).

Defendants contend that this provision bars citizen suits based on activities regulated under another statute, here the SWDA,^[5] in an inherently inconsistent manner. Specifically, Defendants argue that the instant lawsuit is an attempt by CARE to regulate the same activities (land-application and storage of manure) and the same substance (manure/nitrates) in a manner "inconsistent" with EPA regulation under the SDWA (the Consent Order), and is therefore barred by the RCRA "non-duplication" provision. See Coon v. Willett Dairy, LP, 536 F.3d 171, 174 (2d Cir.2008) (RCRA citizen suit claims based on "same activities and substances" as covered by the CWA permit); Jones v. E.R. Snell Contractor, Inc., 333 F.Supp.2d 1344, 1350–51 (N.D.Ga.2004) (pollutant at issue, stormwater runoff, was exempt from the coverage of RCRA because it was regulated by the CWA). Thus, according to Defendants, "the only plausible reason for filing a lawsuit is to seek inconsistent relief."ECF No. 38 at 15.

CARE responds that "by its terms" 42 U.S.C. § 6905(a) does not include language referring to enforcement, and thus cannot preclude a citizen suit. ECF No. 47 at 13–14. Rather, CARE argues that citizen suits of this kind are only subject to limitations under 42 U.S.C. § 6972(b)(2)(A)-(C), namely: written notice and preclusion where a state or federal agency is diligently pursuing a certain judicial or administrative action. However, Defendants do not challenge whether the instant suit is precluded under this provision. Further, as indicated above, courts have routinely relied on 42 U.S .C. § 6905(a), also known as the "anti-duplication" provision, to analyze the viability of a citizen suit. See e.g., Coon, 536 F.3d at 174; Jones, 333 F.Supp.2d at 1350–51. CARE offers no legal authority indicating otherwise, and thus the Court finds this argument inapposite. In fact, at least one court has allowed simultaneous RCRA and SDWA claims under the anti-duplication provision after finding there was nothing inconsistent between the requirements of the two statutes. Vernon Village, Inc. v. Gottier, 755 F.Supp. 1142, 1154 (D.Conn.1990).

Relying on Vernon Village, CARE argues that the broader scope of RCRA's endangerment provision, as opposed to the SDWA's narrower focus on water supplies, does not necessitate the finding that the RCRA is inconsistent with the SDWA. The Court agrees. "While the SDWA applies to the safety of the drinking water, RCRA is concerned with the safe treatment and disposal of hazardous substances-hazardous substances that could be contained within drinking water." Vernon Village, 755 F.Supp. at 1154."[W]hen two statutes are capable of coexistence, it is the duty of the courts, absent a clearly expressed congressional intention to the contrary, to regard each as effective." Morton v. Mancari, 417 U.S. 535, 551, 94 S.Ct. 2474, 41 L.Ed.2d 290 (1974) ("When there are two acts upon the same subject, the rule is to give effect to both if possible...."). At this stage of the proceedings the Court finds it premature to dismiss on the basis of the anti-duplication provision without allowing discovery as to whether the substances and activities addressed in the Consent Order and the Amended Complaint are in fact inconsistent in this case. See Raritan Baykeeper, Inc. v. NL Indus., Inc., No. 09–cv–4117(JAP), 2013 WL 103880 at *27 (D.N.J. Jan. 8, 2013). It remains to be seen what remedies could be supplemental to the Consent Order without conflict or duplication. Thus, CARE's Amended Complaint cannot be dismissed for failure to state a claim on the basis of the RCRA anti-duplication provision.

D. Whether Relief has Already Been Granted

Regardless of the anti-duplication provision, courts have held that citizen suits are barred if government action encompasses all relief sought in the lawsuit, and there is no injunctive relief left for the court to order. See e.g. 87th St. Owners Corp. v. Carnegie Hill–87th St. Corp., 251 F.Supp.2d 1215, 1219–21 (S.D.N.Y.2002) (plaintiff was unable to identify any action defendant could take to improve the situation beyond the plan already implemented by the state agency, however, deference to agency may not be required if defendant could be ordered to take action not already in place as result of agency efforts that would "improve the situation in some way"); Clean Harbors, Inc. v. CBS Corp., 875 F.Supp.2d 1311, 1330–32 (D.Kan.2012) (RCRA citizen suit barred when injunctive relief was already in place). Courts may base this ruling both on standing grounds and failure to state a claim when agency efforts are already underway. See Clean Harbors, 875 F.Supp.2d at 1330; 87th St. Owners, 251 F.Supp.2d at 1222.However, relief may be available when a government plan does not address the same substance or activity, or where there is "ample room for injunctive relief beyond [the agency's] efforts." See In re MTBE Products Liability Litig., 476 F.Supp.2d 275, 281–82 (S.D.N.Y.2007); City of Colton v. American Promotional Events, Inc., 824 F.Supp.2d 1015, 1021–22 (C.D.Cal.2011).

The relief sought by CARE in the instant lawsuit differs with the requirements of the Consent Order in multiple areas, including, but not limited to:

1. CARE asks that Defendants supply drinking water to residents within a three mile radius, as opposed to a one mile radius in the Consent Order (ECF No. 37 at ¶ I (relief requested); ECF No. 38–1, Appx. B at p. 5);

2. CARE asks the Court to order Defendants to implement scientific studies examining the fate and transport of solid waste from the facility to the waters and soils of the surrounding area with the goal of remediating the contamination allegedly caused by Defendants, while the Consent Order only requires monitoring (ECF No. 37 at ¶¶ G, H, J, K; ECF No. 38–1, Appx. B at ¶ E);

3. CARE wants Defendants to design a program to evaluate the actual amount of manure necessary to provide a specific crop with its anticipated nutrient needs, while the Consent Order merely requires Defendants to act in accord with NRCS Practice Standard 590 to determine if manure was over-applied (ECF No. 37 at ¶ F; ECF No. 38–1, Appx. B at ¶ F.1);

4. CARE asks the Court to order that Defendants immediately line the manure lagoons; as opposed to the Consent Order's requirement that Defendants submit a report to determine if the lagoons comply with legal standards (ECF No. 37 at ¶ C; ECF No. 38–1, Appx. B at ¶ F.1.6).

5. CARE asks that soil sampling be required down to at least a four foot level, as opposed to depths of one to three feet in the Consent Order (ECF No. 37 at ¶ G; ECF No. 38–1 at ¶¶ F. 1.c, F. 1.e).

Defendants argue that CARE's claims are based on the exact same problems already remedied by the EPA in the Consent Order, and that any imminent and substantial danger has been abated either by providing an alternate source of drinking water, or requiring Defendants to line the manure lagoons if they do in fact leak. Thus, Defendants maintain that the Complaints fail to state a claim, as the relief sought has already been granted. See Trinity Indus. v. Chicago Bridge & Iron Co., 867 F.Supp.2d 754, 763–64 (W.D.Pa.2012) (finding relief that would be available to plaintiff under RCRA had already been provided by the Consent Order, even though active cleanup of the site had not begun); Kara Holding Corp. v. Getty Petroleum Mktg., Inc., NO. 99 Civ. 1275(RWS), 2004 WL 1811427 at *11–12 (S.D.N.Y. Aug.12, 2004) (even though proposed remediation plan went beyond consent order, plaintiff "had not shown that the remediation plan ... is necessary to insure that the petroleum contamination is no longer an imminent and substantial endangerment in light of the considerable remediation that has already taken place.").

CARE cites to the same discrepancies between the Consent Order and the relief sought in their Complaint, to argue that the instant suit does not abate the endangerment caused by the Defendants, nor does it fully encompass the relief sought by CARE. ECF No. 47 at 17–20 (citing In re MTBE Products Liability Litig., 476 F.Supp.2d at 281–82; City of Colton, 824 F.Supp.2d at 1021–22 (C.D.Cal.2011). Additionally, CARE argues that, despite Defendants' contentions otherwise, this lawsuit is not based solely on contamination of underground drinking water by one type of contaminant (nitrate). The Complaint alleges contamination of surface water and soil (ECF No. 37 at ¶¶ 55, 81–82), and identifies contaminants including nitrates, phosphorus, pharmaceuticals, and heavy metals (Id. at ¶¶ 84, 101).^[6] Thus, CARE argues the case should not be dismissed because its scope is broader than the Consent Order, which is confined to the contamination of underground water by nitrates. See Francisco Sanchez v. Esso Standard Oil Co., 572 F.3d 1, 12 (1st Cir.2009) (collecting cases finding that a consent order did not preclude citizen suit when consent order did not address the same contaminants and/or contemplate the same type of contamination).

As an initial matter, the Court must address Defendants' argument that CARE's notice of intent to sue ("NOI") alleges only contamination of underground drinking water, and therefore any claims as to contamination of surface water and/or contamination by pharmaceuticals, phosphorus and hard metals, is an improper attempt to expand the Complaint beyond the terms of the NOI. ECF No. 67 at 5–8. CARE perfunctorily argues that the NOI provided detailed information alleging violations of RCRA due to improper handling of manure, thereby contaminating groundwater, surface water, and soil. See ECF No. 37–1 at 2–5.

A notice of intent to sue ("NOI") under RCRA must contain sufficient information to permit the recipient to identify the specific requirement, standard, or regulation that has been violated, the activity alleged to be in violation, and the persons responsible for the alleged violation. 40 C.F.R. § 254.3; Brod v. Omya, 653 F.3d 156, 166 (2d Cir.2011) (NOI must identify specific basis for lawsuit). Notice is sufficient where defendant "was made aware of soil and groundwater contamination and the specific compounds causing the contamination." Northern Cal. River Watch v. Honeywell Aerospace, 830 F.Supp.2d 760, 766 (N.D.Cal.2011). However, plaintiffs are not required to "list every specific aspect or detail of every alleged violation." Cmty Ass'n for Restoration of the Env't v. Henry Bosma Dairy,305 F.3d 943, 951 (9th Cir.2002); San Francisco Baykeeper, Inc. v. Tosco Corp., 309 F.3d 1153, 1155 (9th Cir.2002) (holding NOI "does not need to describe every detail of every violation; it need only provide enough information that the defendant can identify and correct the problem.").

In this case, the primary focus of the NOI is (1) the imminent and substantial endangerment due to nitrates found in underground drinking water; and (2) improper handling of manure constitutes open dumping in violation of 42 CFR § 257.3–4(a) as shown by high levels of nitrates in the underground drinking water. ECF No. 37–1 at 2–5. The only reference to industry-standard bovine pharmaceuticals, phosphorus, barium, and zinc is that they were found in "elevated levels." Id. at 3. The only mention of surface water is potential for runoff as a result of the over-application and ponding of liquid manure.Id. at 2. The NOI does note that elevated levels of nitrate were found in soil samples receiving Defendants' manure. Id. After exhaustive review of the NOI, the Court finds that CARE did not provide sufficient information as to contamination of surface water and/or contamination by pharmaceuticals, phosphorus and hard metals, to comply with the statutory RCRA notice obligation. While the NOI did mention these substances and activities briefly, it was not enough information for Defendants to identify and correct the problem. Thus, the Court will limit its analysis on this issue to contamination of underground drinking water by nitrates.

The Court finds that CARE's Complaint states a plausible claim for relief as to allegations regarding the contamination of underground water sources by nitrates. In this case, CARE has identified action that could be taken by the Defendants, beyond what is required by the Consent Order, which could conceivably improve the situation. Cf. 87th St., 251 F.Supp.2d at 1219–21 (noting deference to agency may not be required if defendant could be ordered to take action not already in place as result of agency efforts that would "improve the situation in some way"). The allegations in CARE's Complaint may address the same substance and activity as the Consent Order (nitrates in underground drinking water), however, for the purposes of this motion, the Complaint sufficiently identifies "ample room for injunctive relief beyond [the agency's] efforts." In re MTBE Products Liability Litig., 476 F.Supp.2d at 281–82.For example, CARE asks the Court to order Defendants to conduct scientific studies to remediate the contamination, instead of monitoring only; design programs to evaluate the actual amount of manure necessary to provide a specific crop with the required nutrients; and line the manure lagoons immediately instead of monitoring to determine if they comply with legal standards. ECF No. 37 at ¶¶ C, F, G, H, J, K; ECF No. 38–1, Appx. B at ¶ E, F.1). Thus, the Court finds that CARE's citizen suit is not barred because the Consent Order does not encompass all relief CARE seeks in this lawsuit, nor does it foreclose further injunctive relief as identified in the Complaint. Defendants' motion to dismiss for failure to state a claim must be denied.

ACCORDINGLY, IT IS HEREBY ORDERED:

1. Defendants' Joint Motion to Dismiss (ECF No. 38) is DENIED.

2. Defendants' Motion to Strike Declarations (ECF No. 63) is DENIED as moot.

The District Court Executive is hereby directed to enter this Order and provide copies to counsel.

[1] CARE filed four separate lawsuits against multiple Defendants alleging identical causes of action. These cases include:Cmty. Ass'n for Restoration of the Env't, et. al. v. Cow Palace, LLC (13–CV–3016–TOR); Cmty. Ass'n for Restoration of the Env't, et. al. v. George & Margaret, LLC and George DeRuyter & Sons Diary LLC (13–CV–3017–TOR); Cmty. Ass'n for Restoration of the Env't, et. al. v. D & A Dairy and D & A Dairy LLC (13–CV–3018–TOR); and Cmty. Ass'n for Restoration of the Env't et. al. v. Henry Bosma Diary and Liberty Dairy, LLC (13–CV–3019–TOR). All of these Defendants jointly filed the motion to dismiss addressed in this Order. However, the Court declines to consolidate the cases, and will issue a separate Order in each case. For the purposes of clarity, because the motion was "joint," Defendants are always referred to in the plural.

[2] Defendants cite to EPA regulations exempting from federal waste disposal standards "agricultural wastes, including manures and crop residues, returned to the soil as fertilizers or soil conditioners."40 C.F.R. § 257.1(c)(1).

[3] CARE also supports this argument by attaching a Complaint filed by the EPA in U.S. v. Seaboard Foods, LLP, alleging that swine manure was a solid waste when it was leaked from storage facilities and over-applied to fields. See ECF No. 47–1 at ¶¶ 16–20. However, CARE does not offer any authority allowing the Court to consider this material on a motion to dismiss. See United States v. Ritchie, 342 F.3d 903, 907–908 (9th Cir.2003). Moreover, while the characterization of "solid waste" was an allegation in the EPA complaint, there is no indication that the court ever considered the merit of the United States' assertion.

[4] Generally, a court may not consider material beyond the complaint when ruling on a 12(b)(6) motion, without converting the motion into a motion for summary judgment. See Lee v. City of Los Angeles, 250 F.3d 668,688 (9th Cir.2001). However, the court may take judicial notice of matters of public record as long as the facts are not "subject to reasonable dispute." Id. at 689.The Court takes judicial notice of the Consent Order.

[5] Defendants contend that CARE would "logically" bring this suit under the SDWA but cannot in this case because the EPA is enforcing that statute. See ECF No. 38 at 13 n. 3 (citing 42 U.S .C. § 300j–8(b) (barring citizen suits under the SDWA when the EPA has commenced enforcement proceedings). Thus, according to Defendants, CARE is attempting to "shoehorn" an underground drinking water claim into the RCRA. The Court declines to consider this purely speculative argument.

[6] CARE also takes issue with Defendants' argument that the cause of action is premised on contamination of drinking water. ECF No. 47 at 17 n. 14. Instead, CARE alleges endangerment and open dumping claims based on the mishandling of manure, which is proven by showing contamination of groundwater, soil and possibly drinking water.

Jay C. Johnson, Esq., Venable LLP, Minneapolis, MN, for Plaintiff.

Pamela Marentette, Esq., United States Attorney's Office, Minneapolis, MN, for Defendants.

Jeffrey Gulley, Esq., Government Accountability Project, Washington, D.C., for Intervenors.

MEMORANDUM OPINION AND ORDER

ANN D. MONTGOMERY, District Judge.

I. INTRODUCTION

On December 17, 2014, the undersigned United States District Court Judge heard oral argument on the above captioned parties' cross motions for Summary Judgment [Docket Nos. 84 and 98] and Intervenors' Motion for Judgment on the Pleadings, or in the Alternative, for Summary Judgment [Docket No. 91]. For the reasons discussed below, Defendants' and Intervenors' motions are GRANTED based on Plaintiffs' lack of standing.

II. BACKGROUND

A. Concentrated Animal Feeding Operations

Farms that confine large numbers of animals for more than 45 days during a growing season in an area that does not produce vegetation are called Concentrated Animal Feeding Operations ("CAFOs"). The Environmental Protection Agency ("EPA") has identified agriculture in general, and CAFOs in particular, as a leading source of pollution in our nation's rivers and streams. Nagle Decl. [Docket No. 69] ¶ 13. The Clean Water Act ("CWA") names CAFOs as "point sources" of pollution. Id. ¶ 7; See also 33 U.S.C. § 1311(a).

B. The Environmental Protection Agency's duties under the Clean Water Act

The CWA requires the EPA to "restore and maintain the chemical, physical and biological integrity of the Nation's waters."Nagle Decl. ¶ 4; See 33 U.S.C. § 1251(a). The CWA also restricts the pollutants that are permitted from point sources, like CAFOs. 33 U.S.C. § 1311(a). Agriculture pollution discharges are generally regulated under the National Pollutant Discharge Elimination System ("NPDES") permit program. Nagle Decl. ¶ 7; See 33 U.S.C. § 1342. NPDES permits for CAFOs require disclosure of the farm's location and other operational details. Nagle Decl. ¶ 10; See 40 C.F.R. §§ 122.21(i), 122.23(d). Most states are authorized to administer NPDES programs and state and federal regulations require that information collected by the states be made public. 40 C.F.R. § 123.41(a).

C. EPA's collection of CAFO information

In 2008, the General Accountability Office issued a report concluding that the EPA did not possess the "reliable information it needs to identify and inspect CAFOs nationwide."Nagle Dec. ¶¶ 15, 74. Initially, the EPA proposed a regulation that would have required CAFOs to report information to the Agency directly. Id. ¶ 18. The EPA withdrew the proposed rule after receiving many comments in opposition from industry representatives. Nagle Decl. ¶ 21. Instead, the EPA began gathering public data about CAFOs that was already publicly available from state databases. Id.

D. Freedom of Information Act requests for CAFO information

In the fall of 2012, the EPA received two Freedom of Information Act ("FOIA") requests for CAFO information. Id. ¶ 31. The EPA first released responsive information in January and February 2013. Id. ¶ 34. After Plaintiffs and other interest groups expressed concern about their privacy rights being violated through the EPA's disclosure of CAFO information, the EPA conducted further review of the information it had already disclosed. Id. ¶ 31. The EPA subsequently amended its response to the FOIA requests on April 4, 2013 and again on April 30, 2013. Id. ¶ 42. The EPA has yet to release CAFO information related to Minnesota and Iowa farms at issue in this case and has agreed to postpone its response to the outstanding FOIA requests until this litigation is resolved. Id. ¶ 50.

E. Basis for Plaintiffs' suit against the EPA

Plaintiffs move under the Administrative Procedures Act ("APA"), 5 U.S.C. § 706, to prohibit the EPA's release of their members' personal information—including the physical address and other operational details about the farms—in response to FOIA requests. Pls.' Mem. Supp. Summ. J. [Docket No. 86] 8. Plaintiffs argue the EPA acted arbitrarily and capriciously, or contrary to law, in releasing personal information of farmers that is protected under a FOIA exemption. Id. Specifically, Plaintiffs argue that their members' personal information is protected by FOIA Exemption 6, which safeguards "personal, medical, or similar file[s], the release of which would constitute a clearly unwarranted invasion of personal privacy." 5 U.S.C. § 552(b)(6).Id.

III. DISCUSSION

Defendants and Intervenors argue Plaintiffs lack standing to bring this lawsuit because none of the individuals on whose behalf Plaintiffs seek relief have suffered or will imminently suffer direct injury as a result of Defendants' anticipated actions. Defs.' Mem. Supp. Summ. J. [Docket No. 100] 17; Interv. Mem. Supp. Mot. J. Plead./Summ. J. [Docket No. 93] 15. Plaintiffs argue that their members' privacy interests will be injured if and when the EPA disseminates relevant CAFO information. Pls.' Reply Mem. Supp. Summ. J. [Docket No. 104] 23. Plaintiffs also argue their members are "justifiably concerned that invasions of privacy are directly linked to physical invasion of property—at least one member has already experienced such an invasion." Id. at 24.

"No principle is more fundamental to the judiciary's proper role in our system of government than the constitutional limitation of federal-court jurisdiction to actual cases or controversies." DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 341 (2006) (internal quotations omitted). One element of the constitutional case or controversy requirement is standing. Raines v. Byrd, 521 U.S. 811, 818 (1997). Three elements must be shown to establish standing: (1) an injury that is concrete and particularized, or actual and imminent—not conjectural or hypothetical; (2) a causal relationship between the injury that is "fairly traceable" to the challenged action of the defendant; and (3) it must be "likely" as opposed to merely "speculative" that the injury will be redressed by a favorable decision. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992) (internal citations omitted).

Membership organizations, like Plaintiffs American Farm Bureau Federation and National Pork Producers Council, have standing to sue on behalf of their members so long as the remedy sought will benefit the individual members who allege injury. Hunt v. Wash. State Apple Adver. Comm'n, 432 U.S. 333, 343 (1977). At summary judgment, plaintiffs must set forth specific facts by affidavit, which taken as true, demonstrate the nature of the injury suffered. Lujan, 504 U.S. at 561.

Plaintiffs submitted one affidavit from American Farm Bureau member Patrick Lunemann with their Complaint. Lunemann Decl. [Docket No. 10]. Plaintiffs attached five additional member declarations ("Other Declarations") to their brief in opposition to the EPA's Motion for Summary Judgment.^[1] Other Decls. [Docket No. 105–1] 7–21. Lunemann's declaration, like each of the other five declarations, states that "I consider the uncontrolled distribution of my personal information to be an invasion of our privacy." Lunemann Decl. ¶ 7; See also Other Decls. 7–21. The Other Declarations also express sentiments such as "[w]idespread disclosure of my personal information, uncontrolled by me, makes me and my family more likely to receive disturbing threats and potentially targeted criminal activity" and "[w]idespread, uncontrolled disclosure of personal information makes my farm more vulnerable to agroterroism—including the introduction of animal diseases into the food supply—which the Federal Bureau of Investigation ("FBI"), Department of Homeland Security, and many state agencies have identified as a current and serious threat."Other Decls. 8, 14 and 9, 15.

Declarant Rick Grommersch avers that in 2006, environmental activists associated with the group Compassionate Action for Animals climbed over a fence on his property to take photos of items on his farm. Grommersch Decl. ¶ 11. Another declarant, David Rydberg, states that "I am aware of farmers who receive threatening letters and telephone calls from extreme animal rights activists" and "[i]n recent months, there has been news coverage of one activist's campaign to employ drones to fly over and photograph farms."Rydberg Decl. ¶¶ 9 and 10.

The affidavits submitted by Plaintiffs fail to establish standing on behalf of any of their individual members. First, Plaintiffs fail to demonstrate an actual or imminent injury. The primary anticipated injury alleged by Plaintiffs is that they will "lose control of their personal information." Pls.' Mem. Opp. Summ. J. [Docket No. 104] 24. However, Plaintiffs fail to establish how the EPA's potential release of already public information constitutes a loss of control over their personal information. All six declarants acknowledge that they provided the physical address and a description of their farms to government officials as part of the NPDES permit process. Lunemann Decl. ¶ 4; Other Decls. 7–21. This information is required to be public by law. 40 C.F.R. § 123.41(a).^[2]

Plaintiffs rely on the Supreme Court's decision in United States DOJ v. Reporters Comm. For Freedom of Press for the proposition that a farmer's privacy interest in his personal information does not evaporate simply because the farmer is required to disclose certain information to obtain a permit. 489 U.S. 749, 763 (1989). As argued by Plaintiffs, "[t]he past public availability of piecemeal information does not eliminate the 'potential invasion of privacy' that results from the present disclosure of information."Pls.' Mem. Supp. Summ. J. at 18.

Reporters Committee is distinguishable on several grounds. The Court in Reporters Committee held that the FBI could not respond to FOIA requests that sought summaries of criminal rap sheet information without violating those individual's right to control information concerning his or her person. 489 U.S. 74 at 763. Critical to the Court's decision, published in 1989—well before widespread use of the internet—was the distinction between "scattered disclosure of the bits of information contained in a rap sheet" that were a matter of public record but difficult to obtain, and "revelation of the rap sheet as a whole."Id. The Court also noted the "web" of federal and state laws that limited, and often shielded, nonconviction rap sheet information from the public. Id. at 764–65.

In this case, the relevant web of federal and state laws make disclosure of the NPDES data Plaintiffs seek to protect mandatory. See 33 U.S.C. §§ 1342(b)(3) (setting forth guidelines for state permit programs, including "[t]o insure that the public ... receive notice of each application for a permit and to provide an opportunity for public hearing before a ruling on each such application."); see also 33 U.S.C. §§ 1342(b)(3) ("A copy of each permit application and each permit issued under this section shall be available to the public. Such permit application or permit, or portion thereof, shall further be available on request for the purpose of reproduction."). These public engagement regulations are designed by the EPA to fulfill its duties under the CWA, which seeks to protect the integrity of our nation's waterways. The public's interest in clean water sources, and thus transparency related to identified pollution sources, is certain.

The other critical distinction to draw between Reporter's Committee and this case is the ease with which the information Plaintiffs seek to protect can be found on the internet. Whereas some of the information in Reporter's Committee was public, it was difficult to obtain. 489 U.S. 749, 764 (1989) ( "Plainly there is a vast difference between the public records that might be found after a diligent search of courthouse files, county archives, and local police stations throughout the country and a computerized summary located in a single clearinghouse of information."). Here, the information Plaintiffs want protected is easily accessible and widely available, often times voluntarily so by the farmers who seek to promote their business. Under these circumstances, the EPA's distribution of already public information does not establish an injury for purposes of constitutional standing.^[3]

Plaintiffs also argue that their members are "likely to be further victimized as a result" of the EPA's disclosure of their personal information by environmental activists and animal rights groups. Grommersch Decl. ¶ 9; Rydberg Decl. ¶ 9. This argument does nothing to cure Plaintiffs' lack of actual injury. Rick Grommersch is the only declarant who has experienced environmental activists entering his property. Grommersch's experience, which occurred nearly ten years ago, combined with the other declarants' concern that they are "likely" to be victims of such activist tactics, is speculative, falling short of an actual or imminent injury.

Even if Plaintiffs could establish an actual injury, highlighting Grommersch's experience demonstrates the difficulty Plaintiffs have in establishing the second and third elements of standing. First, the incident on Grommersch's property occurred in 2006, years before the EPA ever responded to any FOIA request with CAFO information, underscoring the ease with which activist groups can identify the location of large farms. Furthermore, "[w]hen the injury alleged is the result of actions by some third party, not the defendant, the plaintiff cannot satisfy the causation element of the standing inquiry." Miller v. Redwood Toxicology Lab., Inc., 688 F.3d 928, 935 (2012). The potential injuries of which Plaintiffs express concern are alleged to be executed by third parties, not the EPA.

Finally, establishing redressability, the third element of standing, will likewise be very difficult. Because the Plaintiffs' member farmers' information, including their physical addresses, is publicly available from multiple sources, Plaintiffs face an seemingly impossible task of showing that prohibiting the EPA's distribution of already public information will redress the speculative injuries they currently allege.For all of these reasons, Plaintiffs do not have constitutional standing in this matter.

IV. CONCLUSION

Based upon all the files, records, and proceedings herein, IT IS HEREBY ORDERED that Defendants' and Intervenors' Motions for Summary Judgment [Docket Nos. 98 and 91] are GRANTED and Plaintiffs' Motion for Summary Judgment [Docket No. 84] is DENIED.

LET JUDGMENT BE ENTERED ACCORDINGLY.

[1] The EPA argues that the five additional affidavits are untimely filed under Federal Rule of Civil Procedure 6(c)(2) and therefore should not be considered by the Court. However, in addition to stating that "[a]ny affidavit supporting a motion must be served with the motion," Rule 6(c)(2) also states that "any opposing affidavit must be served at least 7 days before the hearing, unless the court permits service at another time."Because Plaintiffs additional affidavits were served as exhibits to their memorandum in opposition to the EPA's Motion for Summary Judgment more than 7 days before the hearing, the affidavits were timely filed and will be considered.

[2] >Plaintiffs do not dispute that the information they seek to prevent the EPA from disclosing is already publicly available through the Minnesota Pollution Control Agency's ("MPCA") website and the Iowa Department of Natural Resources ("Iowa DNR") website. For example, any member of the public can search the MPCA's website under "data" and "What's in My Neighborhood" tab and identify searching owner names, type of activity, city, and more. In addition, a large spectrum of environmentally sensitive activities—including CAFOs—by information about the farms owned by at least four of the declarants, including the farm's address, is also available through a simple Google search. Declarant Patrick Lunemann's farm, Twin Eagle Dairy, lists the farm's address on its promotional Facebook page.

[3] Plaintiffs also argue that the Eighth Circuit's decision in Campaign for Family Farms v. Glickman supports their position that disclosure of some information to the government for a limited purpose does not mean that the information should necessarily be available to the general public. 200 F.3d 1180, 1188 (8th Cir.2000). However, Glickman involved the disclosure of names and other information of farmers who signed a petition that the Court deemed equivalent to a secret ballot."While we need not decide whether there is a constitutional right to a secret ballot, we do not hesitate to hold that there is a strong privacy interest in a secret ballot and that this privacy interest is no less compelling in the context of FOIA's personal privacy exemption than it is in other contexts."Id. In this case, the law requires that basic information about CAFO operations be public. There is no analogous secret ballot to support Plaintiffs' position.

635 F.3d 738 (2011)

[741] Richard Edward Schwart (argued), Kirsten Louise Nathanson, Crowell & Moring, L.L.P., Washington, DC, Ellen Steen, Amer. Farm Bureau Federation General Counsel, Washington DC, for Petitioners.

Brian H. Lynk, Trial Atty. (argued), Dept. of Justice, Environmental Defense Section, Amanda Shafer Berman (argued), Jered Joseph Lindsay (argued), Dept. of Justice, Environment & Natural Resources Div., Scott Fulton, E.P.A., Washington, DC, for Respondent.

Before BARKSDALE, STEWART and SOUTHWICK, Circuit Judges.

CARL E. STEWART, Circuit Judge:

In 2003, the Environmental Protection Agency (EPA) revised its regulations, implementing the Clean Water Act's (CWA or the Act) oversight of Concentrated Animal Feeding Operations (CAFOs). Several parties challenged the 2003 revisions (hereinafter the 2003 Rule), and the Second Circuit reviewed the challenges in Waterkeeper Alliance, Inc. v. Environmental Protection Agency, 399 F.3d 486 (2d Cir.2005). In 2008, the EPA, responding to Waterkeeper, revised its regulations (hereinafter the 2008 Rule or the Rule). Subsequently, the Farm Petitioners^[1] jointly with the Poultry Petitioners^[2] filed petitions for review of the 2008 Rule with this court and the Seventh, Eighth, Ninth, Tenth, and D.C. Circuits. Shortly after the issuance of the 2008 Rule, the EPA sent guidance letters to members of Congress and to a CAFO executive (hereinafter the EPA Letters or guidance letters). The Poultry Petitioners filed a petition for review in this Circuit, challenging the EPA's procedures for issuing rules that the Poultry Petitioners allege were final. These petitions for review were consolidated by the Judicial Panel on Multi-district Litigation (JPML), pursuant to 28 U.S.C. § 2112(a)(3), and this court was randomly selected to review the parties' challenges. Subsequently, the Environmental Intervenors^[3] filed a motion to intervene in support of the EPA's position. Also, the EPA filed a motion to dismiss the Poultry Petitioners' challenges to the guidance letters. We GRANT the petitions in part, DENY the petitions in part, and GRANT the EPA's motion to dismiss.

I. BACKGROUND

At issue here is the EPA's regulation of animal feeding operations (AFOs). AFOs are facilities that house, raise, and feed animals until they are ready for transport to processing facilities that prepare meat for shipment and, eventually, consumption. Because these facilities house hundreds [742] and sometimes thousands of animals in confined spaces, they produce millions of tons of animal manure every year.^[4] The management of this manure involves the collection, storage, and eventual use of the manure's nutrients as fertilizer.^[5] Following its collection, the manure is typically transported to an on-farm storage or treatment system.^[6] Treated manure effluent or dry litter (chicken waste) is typically applied to cropland as fertilizer.^[7] This fertilizing process is called land application.^[8]

Because the improper management of this waste can pose a significant hazard to the environment, the EPA focuses much of its attention on regulating certain AFOs that meet the EPA's definition of a CAFO.^[9] According to EPA regulations, CAFOs are facilities where "[a]nimals . . . have been, are, or will be stabled or confined and fed or maintained for a total of 45 days or more in any 12-month period.. . ." 40 C.F.R. § 122.23(b)(1)(i). Our analysis of the petitioners' challenges to the 2008 Rule necessitates a discussion of the statutory and regulatory scheme underlying the EPA's oversight of CAFOs.

A. Statutory Background

In 1948, Congress enacted the Federal Water Pollution Control Act (FWPCA).^[10] FWPCA encouraged states to enact uniform laws to combat water pollution, recognizing "that water pollution control was primarily the responsibility of state and local governments."^[11] The state-run regulation of discharges "involved a complex process in which the government was required to trace in-stream pollution back to specific discharges, and, given the difficulty of this task, enforcement was largely nonexistent."^[12] The federal government's power to curtail water pollution was also limited under FWPCA. Thus, federal action against a discharger could only proceed "with the approval of state officials in the state where the discharge originated and after a complicated series of notices, warnings, hearings, and conference recommendations."^[13] In 1972, FWPCA was amended to replace the state-run regulation of discharges with an obligation to obtain and comply with a federally-mandated National Pollutant Discharge Elimination System (NPDES) permit program.^[14] These amendments also transformed FWPCA into what is [743] known today as the CWA.^[15]

The NPDES permit program, which is primarily articulated in 33 U.S.C. § 1342, allows the EPA to "issue a permit for the discharge of any pollutant, or combination of pollutants. . . ." 33 U.S.C. § 1342(a)(1). To be clear, the CWA prohibits the discharge of pollutants into navigable waters. 33 U.S.C. § 1311. However, if a facility requests a permit, it can discharge within certain parameters called effluent limitations and will be deemed a point source. 33 U.S.C. §§ 1342, 1362(14). Accordingly, the point source will be regulated pursuant to the NPDES permit issued by the EPA or one of 46 States authorized to issue permits.^[16] Relevant here, the definition of point source excludes "agricultural stormwater discharges." Id. § 1362(14). This occurs, for example, when rainwater comes in contact with manure and flows into navigable waters. See, e.g., Fishermen Against Destruction of Env't, Inc. v. Closter Farms, Inc., 300 F.3d 1294, 1297 (11th Cir.2002) (citing Concerned Area Residents for the Env't v. Southview Farm, 34 F.3d 114, 121 (2d Cir.1994) (holding that "agricultural stormwater discharge" exemption applies to any "discharges [that] were the result of precipitation")).

If a CAFO discharges without a permit, it is strictly liable for discharging without a permit and subject to severe civil and criminal penalties. 33 U.S.C. § 1319. For example, monetary sanctions can accrue at a rate of up to $50,000 per violation, per day, for criminally negligent violations, or up to $100,000 per violation, per day, for repeated, knowing violations. Id. Criminal violators may be subject to imprisonment. 40 C.F.R. § 122.41(a)(2).

B. CAFO's Regulatory Background

The EPA enacted the first set of CAFO regulations in 1976. Since that time, the substance of these regulations, regarding CAFOs, has changed only twice, in 2003 and 2008. We discuss the applicable portions of these regulations below.

1. 1976 Regulations

The 1976 regulations specified that CAFOs that wanted to discharge were required to have a permit primarily based on the number of animals housed in the facility. All large CAFOs, those with 1,000 or more animals, were required to have an NPDES permit to discharge pollutants. 41 Fed.Reg. 11,458, 11,458 (Mar. 18, 1976).^[17] Medium CAFOs, those with 300 to 1,000 animals, were required to have a permit if they emitted certain discharges. Id. Finally, most small CAFOs, those with 300 animals or less, generally were not required to have a permit. Id. However, the EPA could determine that a permit was required on a case-by-case basis if a small CAFO emitted certain discharges after [744] an onsite inspection and notice. Id. Under this regulatory scheme, if a discharging CAFO was required to have a permit, but did not have one, it would be subject to civil or criminal liability.

The 1976 regulatory scheme was in place for almost thirty years. However, after being sued for failing to revise the effluent limitations for CAFO operations, the EPA revised its regulations "to address not only inadequate compliance with existing policy, but also the `changes that have occurred in the animal production industries.'" Waterkeeper, 399 F.3d at 494 (citing 66 Fed.Reg. 2960, 2972 (Jan. 12, 2001)). Subsequently, in the 2003 Rule, the EPA shifted from a regulatory framework that explained what type of CAFO must have a permit to a broader regulatory framework that explained what type of CAFO must apply for a permit.

2. The 2003 Rule & Waterkeeper

Under the 2003 Rule, all CAFOs were required to apply for an NPDES permit whether or not they discharged. 68 Fed. Reg. 7176, 7266 (Feb. 12, 2003). Specifically, every CAFO was assumed to have a "potential to discharge" and had to apply for an NPDES permit. Id. at 7266-67. However, an option built into the Rule permitted a CAFO to request from the EPA a "no potential to discharge" determination. Id. If the CAFO proved that it did not have the potential to discharge, the CAFO was not required to seek a permit. Id. The 2003 Rule also expanded the definition of exempt "agricultural stormwater discharge" to include land application discharge, if the land application comported with appropriate site-specific nutrient management practices. Id. at 7198. However, if the land application was not in compliance with those practices, the land application discharge would be an unpermitted discharge in violation of the CWA. Id. at 7197.

Furthermore, the 2003 Rule created a mandatory duty for all CAFOs, applying for a permit, to develop and implement a site-specific Nutrient Management Plan (NMP). Id. at 7176. An NMP required a CAFO to establish "best management practices" (BMPs). Id. at 7213-14. The BMPs were designed to ensure adequate storage of manure and wastewater, proper management of mortalities and chemicals, and appropriate site-specific protocols for land application. Id. at 7176. The BMPs were neither reviewed by the EPA nor were they included in the terms of a CAFO's permit to discharge.

In Waterkeeper, the Environmental Petitioners (Waterkeeper Alliance, Inc., Sierra Club, Natural Resources Defense Council, Inc., and the American Littoral Society) and the Farm Petitioners (American Farm Bureau Federation, National Chicken Council, and the National Pork Producers Council), many of whom are petitioners or intervenors in the present matter, challenged the 2003 Rule on several grounds. 399 F.3d at 497. Specifically, the petitioners challenged the 2003 Rule's duty to apply and the type of discharges subject to regulation. Id. at 504.

The Farm Petitioners asked the Second Circuit to vacate the 2003 Rule's "duty to apply" because it was outside of the EPA's authority. The court agreed and held that the EPA cannot require CAFOs to apply for a permit based on a "potential to discharge." Id. at 504-06. The Second Circuit explained that the plain language of the CWA "gives the EPA jurisdiction to regulate and control only actual discharges—not potential discharges, and certainly not point sources themselves." Id. at 505. In sum, the Second Circuit held that the CWA "on its face, prevents the EPA from imposing, upon CAFOs, the obligation to [745] seek an NPDES permit or otherwise demonstrate that they have no potential to discharge." Id. at 506.

The Environmental Petitioners took issue with the 2003 Rule's exclusion of agricultural stormwater discharge, resulting from land application, from the definition of "point source discharge." They argued that the CWA requires that all discharges from a CAFO are point source discharges, "notwithstanding the fact that agricultural stormwater discharges are otherwise deemed exempt from regulation." Id. at 507. The Second Circuit disagreed. The court explained that the CWA is "ambiguous as to whether CAFO discharges can ever constitute agricultural stormwater." Id. Thus, the court examined whether the exemption for certain land application discharges was grounded in a permissible construction of the CWA. Id. The Second Circuit determined that congressional intent and its precedent supported the EPA's exclusion of agricultural stormwater discharge, resulting from land application, from designation as a point source. Id. at 507-09.

The Environmental Petitioners also argued that the 2003 Rule was unlawful because "(1) it empowers NPDES authorities to issue permits to . . . CAFOs in the absence of any meaningful review of the [NMPs] those CAFOs have developed; and (2) it fails to require that the terms of the [NMPs] be included in the NPDES permits." Id. at 498. The Second Circuit agreed and held that by failing to provide for EPA review of the NMPs, the 2003 Rule violated the statutory commandments that the permitting agency must assure compliance with applicable effluent or discharge limitations. Id. at 502-03.

The parties also disputed "whether the terms of the [NMPs], themselves, constitute effluent limitations that must be included in the NPDES permits." Id. at 502. The Second Circuit held that because the 2003 Rule failed to require that the terms of NMPs be included in NPDES permits, the 2003 Rule violated the CWA. The court explained that the CWA defined effluent limitation as "`any restriction established by a State or the Administrator on quantities, rates, and concentrations of chemical, physical, biological, and other constituents which are discharged from point sources . . .'" Id. at 502 (quoting 33 U.S.C. § 1362(11)). Thus, because "the requirement to develop [an NMP] constitutes a restriction on land application discharges only to the extent that the [NMP] actually imposes restrictions on land application discharges[,]" the CWA's definition of effluent limitations encompassed an NMP. Waterkeeper, 399 F.3d at 502.

3. The Present Petitions for Review: The 2008 Rule

At issue here is the 2008 Rule, the EPA's response to the Second Circuit's decision in Waterkeeper. See 71 Fed.Reg. 37,744 (June 30, 2006). Also at issue are three guidance letters issued by the EPA in response to questions raised by members of the United States Congress and a farm executive about the 2008 Rule. Below, we discuss in further detail the 2008 Rule and the Farm Petitioners' and Poultry Petitioners' challenges to the 2008 Rule, as well as the Poultry Petitioners' challenge to the EPA's issuance of the guidance letters.

a. The 2008 Rule

As required by the Administrative Procedures Act (APA),^[18] on June 30, 2006, the [746] EPA published a notice of proposed rulemaking (hereinafter the Proposed Rule) setting forth its response to the Second Circuit's decision in Waterkeeper. See 71 Fed.Reg. at 37,744. In place of the 2003 Rule's duty to apply for a permit, the Proposed Rule required that a CAFO owner or operator apply for a permit only if the CAFO "discharges or proposes to discharge pollutants". Id. at 37,747 (internal quotation marks omitted). Furthermore, the Proposed Rule responded to the Second Circuit's holding about the incorporation of NMP requirements into permits. Id. at 37,753-55. Specifically, the Proposed Rule required that any NPDES permit issued to a CAFO include the requirement to develop and implement an NMP, including land application requirements. Id. at 37,551. Moreover, the NMP must be submitted, in its entirety, with the CAFO's permit application, must be reviewed by the agency and the public, and must have its terms incorporated into the applicable permit as enforceable effluent limitations. Id.

The EPA received several hundred responses to the Proposed Rule. 73 Fed.Reg. 12,321-02, 12,324 (Mar. 7, 2008). Many of the comments asked the EPA to specify when a CAFO "proposes" to discharge. Id. In response, on March 7, 2008, the EPA published a supplemental notice of proposed rulemaking (hereinafter the Supplemental Proposed Rule). See generally 73 Fed.Reg. 12,321-02. The Supplemental Proposed Rule provided that a CAFO does not discharge or propose to discharge if "based on an objective assessment of the conditions at the CAFO, that the CAFO is designed, constructed, operated, and maintained in a manner such that the CAFO will not discharge." Id. at 12,339. Furthermore, if a CAFO operator makes this showing, the operator can apply for voluntary certification. Id. The benefit of voluntary certification is that, in the event of a discharge, an unpermitted CAFO will not be liable "for violation of the duty to apply," but will still be in violation of the CWA's prohibition against unpermitted discharges. Id.

On November 20, 2008, the EPA published the 2008 Rule, which incorporates the proposed regulations in the Proposed Rule and the Supplemental Proposed Rule. See 73 Fed.Reg. 70,418 (Nov. 20, 2008). In sum, the 2008 Rule clarifies the "duty to apply" liability scheme. Id. at 70,423. It reiterates that CAFOs "propose to discharge" if they are "designed, constructed, operated, or maintained such that a discharge would occur." Id. Furthermore, each CAFO operator is required to make an objective case-by-case assessment of whether it discharges or proposes to discharge, considering, among other things, climate, hydrology, topology, and the man-made aspects of the CAFO. Id. at 70,424. It further clarifies that a CAFO can be held liable for failing to apply for a permit, in addition to being held liable for the discharge itself. Id. at 70,426. The 2008 Rule also reiterates that certification is voluntary, but if a CAFO does not certify, in an enforcement proceeding for failing to apply for a permit, the CAFO would have the burden of proving that it did not propose to discharge. Id. Finally, with regard to NMPs, the 2008 Rule restates that [747] NMPs are an enforceable part of an NPDES permit and clarifies that the terms of NMPs would remain the same as the terms articulated in the 2003 Rule. Id. at 70,443.

On December 4, 2008, the 2008 Rule became final for purposes of seeking judicial review. 73 Fed.Reg. at 70,418. As required by 33 U.S.C. § 1369(b),^[19] each of the Farm Petitioners and Poultry Petitioners^[20] (collectively, the Farm Petitioners) timely filed petitions for review, challenging certain provisions of the 2008 Rule, in various courts of appeals, namely, this court^[21] and the Seventh,^[22] Eighth,^[23] Ninth,^[24] Tenth,^[25] and District of Columbia^[26] Circuits.

Because an agency is required to notify the Judicial Panel on Multi-district Litigation (JPML) if two or more petitions for review are filed that challenge an agency's promulgation of regulations, the EPA notified the JPML of the various challenges. 28 U.S.C. § 2112(a)(3). Subsequently, per section 2112, this court was randomly selected by the JPML, from the courts of appeals in which petitions for review were filed, to address the parties' challenges. Id. Accordingly, the petitions were consolidated and transferred to this court from our sister circuits.

On appeal, the Farm Petitioners primarily challenge the EPA's "duty to apply" for an NPDES permit, imposition of liability for failing to apply for a permit, and the EPA's regulation of a permitted CAFO's land application.

b. The EPA Letters

Shortly after the EPA issued the 2008 Rule, it issued three guidance letters, a common practice following the issuance of complex regulations. See generally Appalachian Power Co. v. Envtl. Prot. Agency, 208 F.3d 1015, 1020 (D.C.Cir.2000). On [748] January 16, 2009, Benjamin H. Grumbles, Assistant Administrator for the EPA's Office of Water, sent a letter to Senator Thomas R. Carper of Delaware; on the same day, Grumbles sent an identical letter to then-congressperson Michael N. Castle of Delaware; and on March 4, 2009, James D. Giattina, Director of the Water Protection Division for Region 4, sent a letter to Jeff Smith, an executive for Perdue Farms, Inc.

The guidance letters sent to the Delaware Congress members were in response to their joint letter to the EPA concerning "the status of EPA's authorization of Delaware's [state-run CAFO] program." Grumbles explained that Delaware's CAFO program was denied status because it did not comply with the CWA. Notably, the Delaware program requires a permit only if "a CAFO meets the numerical animal limit, has a discharge into waters of the state, and is in non-compliance with Delaware Nutrient Management Regulations." The guidance letters further explained the EPA's requirements for a state-run CAFO program and that these requirements were the national floor for these programs. They also stated that the CWA prohibits the discharge of all pollutants by a CAFO. Moreover, "[t]he term pollutant is defined very broadly in the CWA. . . . Potential sources of such pollutants at a CAFO could include . . . litter released through confinement house ventilation fans." The guidance letters further explained that "any point source discharge of stormwater that comes into contact with these materials and reaches waters of the United States is a violation of the CWA unless authorized by a [permit]."

The letter sent by Giattina was in response to questions posed by Smith, regarding Smith's concern that certain EPA field offices were incorrectly interpreting the 2008 Rule. Relevant here, Smith asked whether operators of dry litter farms need to apply for a permit "because of potential runoff from the production area[, and if] so, are there examples of dry poultry litter operations having a discharge?" The letter explained that all CAFOs must have permits prior to discharging pollutants and that "pollutant" is defined broadly by the CWA and the regulations could include litter released through confinement house ventilation fans. The letter also discussed the agricultural stormwater exemption, explaining that it "applies only to precipitation-related discharges from land application areas. . . where application of manure, litter, or process wastewater is in accordance with appropriate nutrient management practices," and not to "discharges from the CAFO production area."

As required by the APA, on April 12, 2009, within 120 days of the issuance of the guidance letters, the Poultry Petitioners filed their petition for review, challenging the EPA Letters. The Poultry Petitioners argue that the EPA Letters constitute final agency actions subject to judicial review and, among other things, were required to have undergone notice and comment per the rulemaking procedures articulated in the APA. See 5 U.S.C. § 553. The EPA subsequently filed a motion to dismiss the Poultry Petitioners' claim, arguing that we do not have jurisdiction to hear challenges to guidance letters that are merely articulations of current rules and regulations.

Our analysis of the Farm Petitioners' claims and Poultry Petitioners' claims proceeds as follows. Part II is divided into two parts. In subpart A, we discuss the Farm Petitioners' challenges. We GRANT the petition in part and DENY the petition in part. In subpart B, we address the Poultry Petitioners' challenge to the EPA Letters. We DISMISS their [749] petition for lack of jurisdiction per the EPA's motion.

II. ANALYSIS

A. Farm Petitioners' Challenges

The Farm Petitioners' challenges to the 2008 Rule can be sub-divided into two parts. First, they effectively challenge the "duty to apply" liability scheme. Second, they challenge the Rule's regulation of CAFO land application discharges. Below we address each of these challenges in turn.

1. Duty to Apply Liability Scheme

The duty-to-apply liability scheme has three parts. To begin, the 2008 Rule requires CAFOs that discharge or propose to discharge to apply for an NPDES permit—the duty to apply. If a CAFO discharges and does not have a permit, the CAFO will not only be liable for discharging without a permit, but also prosecuted for failing to apply for a permit—failure to apply liability. However, a CAFO can circumvent this liability if the CAFO operator can establish that the CAFO was designed, constructed, operated, and maintained in a manner such that the CAFO will not discharge. The Farm Petitioners argue that certain parts of the liability scheme are in excess of the EPA's statutory authority and other parts are violations of the APA.

Our review of the Farm Petitioners' challenges rests, for the most part, on the Second Circuit's determination in Waterkeeper and whether the EPA's actions are within the scope of its statutory authority. As such, our analysis is guided by the principles enunciated in Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). If Congress has "directly spoken to the precise question at issue" and "the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress." Chevron, 467 U.S. at 842-43, 104 S.Ct. 2778 (footnote omitted). If the court determines that the statute is silent or ambiguous with respect to the specific question at issue, then we consider "whether the agency's answer is based on a permissible construction of the statute." Id. at 843, 104 S.Ct. 2778. We use the traditional tools of statutory construction to determine whether Congress has spoken to the precise point at issue. Tex. Sav. & Cmty. Bankers Ass'n v. Fed. Hous. Bd., 201 F.3d 551, 554 (5th Cir.2000).

We conclude that the CWA provides a comprehensive liability scheme, and the EPA's attempt to supplement this scheme is in excess of its statutory authority.

a. Duty to Apply

The 2003 Rule's "duty to apply" required all CAFOs to apply for an NPDES permit or demonstrate that they do not have the potential to discharge. 68 Fed. Reg. at 7266. In Waterkeeper, the Second Circuit held that the 2003 Rule's "duty to apply" was ultra vires because the EPA exceeded its statutory authority. Waterkeeper, 399 F.3d at 504. The court explained that the CWA is clear that the EPA can only regulate the discharge of pollutants. To support its interpretation, the Second Circuit examined the text of the Act. The court noted: (1) 33 U.S.C. § 1311(a) of the CWA "provides . . . [that] the discharge of any pollutant by any person shall be unlawful," (2) section 1311(e) of the CWA provides that "[e]ffluent limitations . . . shall be applied to all point sources of discharge of pollutants," and (3) section 1342 of the Act gives "NPDES authorities the power to issue permits authorizing the discharge of any pollutant or combination of pollutants." [750] Waterkeeper, 399 F.3d at 504. Accordingly, the Second Circuit concluded that

in the absence of an actual addition of any pollutant to navigable waters from any point, there is no point source discharge, no statutory violation, no statutory obligation of point sources to comply with EPA regulations for point source discharges, and no statutory obligation of point sources to seek or obtain an NPDES permit in the first instance.

Id. at 505. The Second Circuit's decision is clear: without a discharge, the EPA has no authority and there can be no duty to apply for a permit.

The EPA's response to this part of the Waterkeeper analysis is the 2008 Rule's requirement that CAFOs that discharge and CAFOs that "propose" to discharge apply for a permit. We address the latter category first.

i. CAFOs that Propose to Discharge

Because the issues presented in Waterkeeper are similar to the issues presented here, we find the Second Circuit's analysis to be instructive and persuasive. Accordingly, we decline to uphold the EPA's requirement that CAFOs that propose to discharge apply for an NPDES permit.

At first blush it seems that the EPA, by regulating CAFOs that "propose" to discharge, is regulating CAFOs that want to discharge. However, as the Farm Petitioners' counsel explained at oral argument, the EPA's use of the term "propose" is not the same as the common understanding of the term—"to form or declare a plan or intention." WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY 1819 (8th ed.1993). Instead, the EPA's definition of a CAFO that "proposes" to discharge is a CAFO designed, constructed, operated, and maintained in a manner such that the CAFO will discharge. Pursuant to this definition, CAFOs propose to discharge regardless of whether the operator wants to discharge or is presently discharging. This definition thus requires CAFO operators whose facilities are not discharging to apply for a permit and, as such, runs afoul of Waterkeeper, as well as Supreme Court and other well-established precedent.

Specifically, the Supreme Court explained:

[T]he National Pollutant Discharge Elimination System [requires] a permit for the "discharge of any pollutant" into the navigable waters of the United States, 33 U.S.C. § 1342(a). The triggering statutory term here is not the word "discharge" alone, but "discharge of a pollutant," a phrase made narrower by its specific definition requiring an "addition" of a pollutant to the water.

S.D. Warren Co. v. Maine Bd. of Envtl. Protection, 547 U.S. 370, 380-81, 126 S.Ct. 1843, 164 L.Ed.2d 625 (2006). Likewise, several circuit courts have held that the scope of the EPA's authority under the CWA is strictly limited to the discharge of pollutants into navigable waters.

Notably, in the seminal case Natural Resources Defense Council, Inc. v. Environmental Protection Agency, 859 F.2d 156 (D.C.Cir.1988), the D.C. Circuit explained more than 20 years ago that the CWA "does not empower the agency to regulate point sources themselves; rather, EPA's jurisdiction under the operative statute is limited to regulating the discharge of pollutants." Id. at 170. In Waterkeeper, the Second Circuit echoed this interpretation of the CWA and explained that "unless there is a discharge of any pollutant, there is no violation of the Act. . . ." 399 F.3d at 504. More recently, in Service Oil, Inc. v. Environmental Protection Agency, 590 F.3d 545 (8th Cir. 2009), the Eighth Circuit reiterated the [751] scope of the EPA's regulatory authority and concluded that "[b]efore any discharge, there is no point source" and the EPA does not have any authority over a CAFO. Serv. Oil, Inc., 590 F.3d at 550.

These cases leave no doubt that there must be an actual discharge into navigable waters to trigger the CWA's requirements and the EPA's authority. Accordingly, the EPA's authority is limited to the regulation of CAFOs that discharge. Any attempt to do otherwise exceeds the EPA's statutory authority. Accordingly, we conclude that the EPA's requirement that CAFOs that "propose" to discharge apply for an NPDES permit is ultra vires and cannot be upheld.

ii. Discharging CAFOs

Although the CWA forecloses the EPA's regulation of a CAFO before there is a discharge, the question remains: Can the EPA require discharging CAFOs to apply for an NPDES permit? This analysis necessitates application of Chevrons two-step inquiry. Chevron step one requires the court to determine, if Congress, through the CWA, has spoken directly on the issue of whether the EPA can require a discharging CAFO to apply for a permit. Chevron, 467 U.S. at 842-43, 104 S.Ct. 2778. As there is no language in the CWA that creates a "duty to apply" for an NPDES permit, our analysis centers on Chevron step two—whether the regulation "is based on a permissible construction of the statute." Id.

We accord "deference to agencies under Chevron because of a presumption that Congress, when it left ambiguity in a statute meant for implementation by an agency, understood that the ambiguity would be resolved, first and foremost, by the agency, and desired the agency (rather than the courts) to possess whatever degree of discretion the ambiguity allows." Tex. Clinical Labs, Inc. v. Sebelius, 612 F.3d 771, 775 (5th Cir.2010). However, a Chevron step two analysis depends on "a number of factors. These include: the consistency of the interpretation and the length of adherence to it, undisturbed by Congress; the explicitness of the congressional grant of authority to the agency, with greater deference in cases of more specific delegation; and the degree of agency expertise necessarily drawn upon in reaching its interpretation." Quarles v. St. Clair, 711 F.2d 691, 706-07 (5th Cir. 1983).

The primary purpose of the NPDES permitting scheme is to control pollution through the regulation of discharges into navigable waters. See 33 U.S.C. § 1342. Therefore, it would be counter to congressional intent for the court to hold that requiring a discharging CAFO to obtain a permit is an unreasonable construction of the Act. In fact, the text of the Act indicates that a discharging CAFO must have a permit. The CWA explains that discharging without a permit is unlawful, 33 U.S.C. § 1311, and punishes such discharge with civil and criminal penalties, 33 U.S.C. § 1319. This has been the wellestablished statutory mandate since 1972. It logically follows that, at base, a discharging CAFO has a duty to apply for a permit.

In summary, we conclude that the EPA cannot impose a duty to apply for a permit on a CAFO that "proposes to discharge" or any CAFO before there is an actual discharge. However, it is within the EPA's province, as contemplated by the CWA, to impose a duty to apply on CAFOs that are discharging.

b. Failure to Apply Liability

The 2008 Rule provides that a CAFO can be held liable for failing to apply for a permit. The Farm Petitioners [752] contend that the EPA does not have the authority to create this liability. We agree. As previously noted, if Congress has "directly spoken to the precise question at issue" and "the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress." Chevron, 467 U.S. at 842-43, 104 S.Ct. 2778 (footnote omitted). Here, the CWA is clear about when the EPA can issue compliance orders,^[27] bring a civil suit for an injunction^[28] or penalties,^[29] or bring criminal charges for penalties.^[30] Specifically, 33 U.S.C. § 1319 allows the EPA to impose liability if it "finds that any person is in violation of any condition or limitation which implements [violations of]": the discharge prohibition,^[31] certain water-quality based effluent limitations,^[32] national standards of performance for new sources,^[33] toxic and pretreatment effluent standards,^[34] the EPA's information-gathering authority,^[35] provisions permitting the discharge of specific aquaculture pollutants,^[36] any permit condition or limitation,^[37] and provisions governing the disposal or use of sewer sludge.^[38] Notably absent from this list is liability for failing to apply for an NPDES permit.

Moreover, section 1319 is the only provision in the Act to provide for penalties. Assuming that the punishment for failing to apply for a permit are section 1319's penalties, the EPA still runs up against the CWA's clear articulation that only certain violations of the Act can be enforced using section 1319's penalties. See 33 U.S.C. § 1319; see, e.g., Serv. Oil, Inc., 590 F.3d at 550 ("Congress in § 1319(g)(1) granted EPA limited authority to assess administrative monetary penalties for violations of specific statutory provisions related to the core prohibition against discharging without a permit, or contrary to the terms of a permit."); Colt Indus., Inc. v. United States, 880 F.2d 1311, 1314 (Fed. Cir.1989) ("EPA is not authorized under either the Clean Air or Clean Water [A]cts to seek compensatory damages; it is limited to injunctive relief and the maximum monetary penalties prescribed by 42 U.S.C. § 7413(b), and 33 U.S.C. § 1319, respectively."). Accordingly, the imposition of "failure to apply" liability is outside the bounds of the CWA's mandate.

The Eighth Circuit's analysis in Service Oil is instructive. In that case, the court examined whether the EPA can assess administrative penalties for failing to apply for an NPDES permit. As the EPA argues here, it also argued in Service Oil that section 1318, which gives the EPA its information-gathering authority, also gives the EPA power to impose liability for failing to apply for an NPDES permit. 590 F.3d at 550. The Eighth Circuit rejected this argument. In concluding that the EPA cannot assess such penalties, the court commented on the scope of the EPA's regulatory authority. The court explained that "the agency's authority to assess [753] monetary penalties by administrative proceeding is limited to unlawful discharges of pollutants." Id.; see also Envtl. Prot. Info. Ctr. v. Pac. Lumber Co., 469 F.Supp.2d 803, 826 (N.D.Cal.2007) (finding 33 U.S.C. § 1342(p) does not authorize liability for "failure to apply" for NPDES permit coverage, but only for non-compliance with permit terms).

* * *

For more than 40 years, the EPA's regulation of CAFOs was limited to CAFOs that discharge. The 2003 Rule marked the first time that the EPA sought to regulate CAFOs that do not discharge. This attempt was wholly rejected by the Second Circuit in Waterkeeper. 399 F.3d at 504. Again, with the 2008 Rule, the EPA not only attempts to regulate CAFOs that do not discharge, but also to impose liability that is in excess of its statutory authority. Although Chevron makes clear that we must give deference to the agency's interpretation of a statute, "courts are not obliged to stand aside and rubberstamp their affirmance of administrative decisions that they deem inconsistent with the statutory mandate or that frustrate the congressional policy underlying a statute." Tex. Power & Light Co. v. FCC, 784 F.2d 1265, 1269 (5th Cir.1986) (citations and internal quotation marks omitted); see also Buffalo Crushed Stone, Inc. v. Surface Transp. Bd., 194 F.3d 125, 128-29 (D.C.Cir.1999) ("[D]eference is not without limit. We will reject an agency's interpretation if an alternative reading is compelled by the regulations' plain language. . . ." (citation and internal quotation marks omitted)).

To this end, the Supreme Court has explained: "Agencies may play the sorcerer's apprentice but not the sorcerer himself." Alexander v. Sandoval, 532 U.S. 275, 292, 121 S.Ct. 1511, 149 L.Ed.2d 517 (2001). In other words, an agency's authority is limited to what has been authorized by Congress. See id. Here, the "duty to apply", as it applies to CAFOs that have not discharged, and the imposition of failure to apply liability is an attempt by the EPA to create from whole cloth new liability provisions. The CWA simply does not authorize this type of supplementation to its comprehensive liability scheme. Nor has Congress been compelled, since the creation of the NPDES permit program, to make any changes to the CWA, requiring a non-discharging CAFO to apply for an NPDES permit or imposing failure to apply liability. Thus, we echo the sentiments of the Second Circuit in Waterkeeper:

While we appreciate the policy considerations underlying the EPA's approach in the CAFO Rule, however, we are without authority to permit it because it contravenes the regulatory scheme enacted by Congress. . . . To the extent that policy considerations do warrant changing the statutory scheme, such considerations address themselves to Congress, not to the courts.

Waterkeeper, 399 F.3d at 505 (citations and internal quotation marks omitted).

2. Land Application

The Farm Petitioners argue that the EPA's requirement that all NMPs address protocols for land application exceeds the EPA's statutory authority.^[39] Our analysis of this issue necessitates a brief overview of the relevant parts of the 2003 Rule and the Second Circuit's discussion of the 2003 Rule in Waterkeeper.

[754] As previously noted, the 2003 Rule established a mandatory duty for all CAFOs applying for a permit to develop and implement an NMP, which required a CAFO to establish BMPs. The BMPs were designed to ensure adequate storage of manure and wastewater, proper management of mortalities and chemicals, and relevant here, appropriate site specific protocols for land application. See 68 Fed.Reg. at 7176. However, NMPs (and thus BMPs) were not required to be part of a CAFO's NPDES permit.

In Waterkeeper, the parties disputed "whether the terms of the [NMPs], themselves, constitute effluent limitations that must be included in the NPDES permits." 399 F.3d at 502. The Second Circuit held that because the 2003 Rule failed to require that the terms of NMPs be included in NPDES permits, the 2003 Rule violated the CWA. The court explained that the CWA defined effluent limitation as "`any restriction established by a State or the Administrator on quantities, rates, and concentrations of chemical, physical, biological, and other constituents which are discharged from point sources . . .'" Id. (citing 33 U.S.C. § 1362(11)). Because "the requirement to develop [an NMP] constitutes a restriction on land application discharges," the court held, there was no doubt that the CWA's definition of effluent limitation encompassed an NMP. Waterkeeper, 399 F.3d at 502 (emphasis added). Thus, the Second Circuit concluded that the EPA must incorporate CAFOs' site-specific NMPs into their permits.

Accordingly, the 2008 Rule requires that "[a] permit issued to a CAFO must include a requirement . . . to develop and implement" an NMP. 73 Fed.Reg. at 70,437. The Farm Petitioners argue that the EPA's response to the Second Circuit's mandate is impermissible because it allows CAFOs to regulate all land application, even if the land application is applied pursuant to an NMP. They further contend that, in violation of the CWA's jurisdictional limits and Waterkeeper, the EPA requires CAFOs that seek permit coverage only for production area discharges to apply also for coverage for land application areas.

The Farm Petitioners' arguments are problematic because they are challenging a requirement promulgated in the 2003 Rule. Thus, the Farm Petitioners' arguments had to be made within the 120-day time period for challenging rules promulgated by an agency. 33 U.S.C. § 1369(b)(1). The 120-day time limit is well-established, and this court has explained that the limitation is strictly enforced. See Tex. Mun. Power Agency v. Envtl. Prot. Agency, 799 F.2d 173, 175 (5th Cir.1986). The only exception to this limitation is if the grounds for the challenge arose after the 120-day time period. Id. It is clear that the grounds for the challenges made by the Farm Petitioners did not arise after the 120-day time period. Notably, the Farm Petitioners, many of whom were parties in Waterkeeper, had the opportunity to respond to arguments made by other petitioners in that case, advocating that the NMP terms be included in a CAFO's permit. They did not. Thus, the Farm Petitioners' arguments, regarding NMPs and the protocols for land application, brought almost six years after they were promulgated, are time barred.

B. Poultry Petitioners' Challenges

As previously noted, after the EPA issued the 2008 Rule, it issued three guidance letters. Identical letters were sent to Senator Carper and Representative Castle. The third letter was sent to a farm executive. The Poultry Petitioners' claims center on the substance of the EPA [755] Letters. The guidance letters state that poultry growers must apply for NPDES permits for the releases of dust through poultry confinement house ventilation fans. The Poultry Petitioners argue that this requirement is a substantive rule because it creates new legal consequences and affects individual rights and obligations. Thus, because the EPA failed to subject this rule to proper notice and comment, as required by the APA, the Poultry Petitioners argue that this court should set aside the EPA Letters' pronouncement as unlawful. The EPA asks that we dismiss the Poultry Petitioners' claim because 33 U.S.C. § 1369(b)(1) governs whether this court has jurisdiction to review an agency action, and the EPA Letters do not fit within subsection 1369(b)(1)'s parameters. We agree and, for the following reasons, dismiss the Poultry Petitioners' claims.

The CWA establishes a bifurcated jurisdictional scheme whereby courts of appeals have jurisdiction over some categories of challenges to EPA action, and the district courts retain jurisdiction over other types of complaints. Chem. Mfrs. Ass'n v. Envtl. Prot. Agency, 870 F.2d 177, 265 (5th Cir.1989). Specifically, 33 U.S.C. § 1369(b)(1) authorizes original jurisdiction to courts of appeals to review certain agency "final actions."^[40] Relevant to the Poultry Petitioners' claims, this court can review an agency's final action (1) approving or promulgating certain effluent limitations, § 1369(b)(1)(E), and (2) issuing or denying certain permits, § 1369(b)(1)(F).

As a threshold matter, in order for this court to have jurisdiction, the guidance letters must constitute an agency final action. The Supreme Court explained in Bennett v. Spear, 520 U.S. 154, 117 S.Ct. 1154, 137 L.Ed.2d 281 (1997), that an agency action is final only if it meets two criteria. Id. at 177-78, 117 S.Ct. 1154. First, the action must mark the "consummation" of the agency's decision-making process; it cannot be tentative or interlocutory. Id. Second, the action must be one by which "rights or obligations have been determined" or from which "legal consequences will flow." Id.

In regard to the first Bennett prong, we note that guidance letters can mark the "consummation" of an agency's decision-making process. See Her Majesty the Queen in Right of Ontario v. Envtl. Prot. Agency, 912 F.2d 1525, 1532 (D.C.Cir.1990) (holding that the EPA's guidance letters constitute final agency actions because they "serve[d] to confirm a definitive position that has a direct and immediate impact on the parties. . . ."); Ciba-Geigy Corp. v. Envtl. Prot. Agency, 801 F.2d 430, 437 (D.C.Cir.1986) (finding that the EPA's guidance letters constituted final agency actions because there was "no reason to believe that the EPA Director of Pesticide Programs lack[ed] authority to speak for EPA on th[e] issue or [756] that his statement of the agency's position was only the ruling of a subordinate official that could be appealed to a higher level of EPA's hierarchy." (internal quotations omitted)). However, that the guidance letters can meet the first Bennett prong is not enough. See Bennett, 520 U.S. at 177, 117 S.Ct. 1154 ("[T]wo conditions must be satisfied for agency action to be `final'. . . ."). There must also be evidence that the guidance letters have made a substantive change in the EPA's regulation of CAFOs. See id. at 178, 117 S.Ct. 1154.

To meet the second Bennett prong, the guidance letters must affect the Poultry Petitioners' rights or obligations or create new legal consequences. Id. Although the guidance letters do, as the Poultry Petitioners note, obligate them to obtain a permit if they discharge manure or litter through ventilation fans or face legal consequences, the EPA Letters neither create new legal consequences nor affect their rights or obligations. Here, the guidance letters merely restate section 1342's prohibition against discharging pollutants without an NPDES permit. Agency actions that have no effect on a party's rights or obligations are not reviewable final actions. Fairbanks N. Star Borough v. U.S. Army Corps of Eng'rs, 543 F.3d 586, 593-94 (9th Cir.2008) (explaining that the second Bennett prong was not met where "rights and obligations remain unchanged."); Nat'l Ass'n of Home Builders v. Norton, 415 F.3d 8, 15 (D.C.Cir.2005) ("[I]f the practical effect of the agency action is not a certain change in the legal obligations of a party, the action is non-final for the purpose of judicial review."). Moreover, an agency's actions are not reviewable when they merely reiterate what has already been established. See, e.g., Am. Paper Inst. v. Envtl. Prot. Agency, 882 F.2d 287, 289 (7th Cir.1989) (a policy statement providing the EPA's views concerning tolerances for dioxin in permits for paper mills was not a final action, because "telegraphing your punches is not the same as delivering them"); S. Holland Metal Finishing Co. v. Browner, 97 F.3d 932, 935-37 (7th Cir.1996) (interpretative ruling, construing regulations, was not final action); City of San Diego v. Whitman, 242 F.3d 1097, 1101-02 (9th Cir.2001) (letter indicating that the Ocean Pollution Reduction Act of 1994, Pub.L. No. 103-431 §§ 1-2, 108 Stat. 4396-97 (1994), would apply to a city's as-yet-unfiled application to renew its NPDES permit was not a final action). The EPA Letters do not change any rights or obligations and only reiterate what has been well-established since the enactment of the CWA—CAFOs are prohibited from discharging pollutants without a permit. Thus, they do not meet the two-part Bennett test and are not reviewable, final agency decisions.

Accordingly, we grant the EPA's motion to dismiss because we lack jurisdiction to consider the Poultry Petitioners' challenge to the EPA Letters.

III. CONCLUSION

For the foregoing reasons, the petitions are granted in part, denied in part, and dismissed in part. We hereby vacate those provisions of the 2008 Rule that require CAFOs that propose to discharge to apply for an NPDES permit, but we uphold the provisions of the 2008 Rule that impose a duty to apply on CAFOs that are discharging. We vacate those provisions of the 2008 Rule that create liability for failing to apply for an NPDES permit. Additionally, we uphold the provisions of the 2008 Rule that allow permitting authorities to regulate a permitted CAFO's land application and include these requirements in a CAFO's NPDES permit. Finally, we dismiss the Poultry Petitioners' [757] challenge of the guidance letters for lack of jurisdiction.

[1] The "Farm Petitioners" are the National Pork Producers Council, American Farm Bureau Federation, United Egg Producers, North Carolina Pork Council, National Milk Producers Federation, Dairy Business Association, Inc., Oklahoma Pork Council, National Chicken Council, and U.S. Poultry & Egg Association.

[2] The "Poultry Petitioners" are the National Chicken Council, and U.S. Poultry & Egg Association. Although these parties are also "Farm Petitioners," the arguments made in the Poultry Petitioners' brief apply only to them and not the other Farm Petitioners.

[3] The "Environmental Intervenors" are the Natural Resource Defense Council, Sierra Club, and Waterkeeper Alliance.

[4] Sara R. Reichenauer, Issuing Violations Without Tangible Evidence: Computer Modeling for Clean Water Act Enforcement, 95 Iowa L.Rev. 1011, 1019 (2010).

[5] Thomas R. Head, III, Local Regulation of Animal Feeding Operations: Concerns, Limits, and Options for Southeastern States, 6 Envtl. Law. 503, 515 (Feb.2000) ("In particular, animal waste must be stored while awaiting disposal. Waste typically is stored in large open-air tanks or anaerobic lagoons, which can be used to treat as well as store waste.").

[6] Id.

[7] Id. at 515-16.

[8] Id. at 516.

[9] Reichenauer, 95 Iowa L.Rev. at 1019-20 ("Data suggests that agriculture is the most harmful source to our nation's waters, causing the EPA to focus much of its attention on agriculture entities, specifically CAFOs and potential CAFOs.").

[10] Jeffrey M. Gaba, Generally Illegal: NPDES General Permits Under the Clean Water Act, 31 Harv. Envtl. L.Rev. 409, 413 (2007).

[11] Kenneth M. Murchison, Learning from More than Five-and-a-Half Decades of Federal Water Pollution Control Legislation: Twenty Lessons for the Future, 32 B.C. Envtl. Aff. L.Rev. 527, 530-31 (2005).

[12] Gaba, 31 Harv. Envtl. L.Rev. at 414.

[13] Murchison, 32 B.C. Envtl. Aff. L.Rev. at 531.

[14] Id. at 541-42.

[15] Id. at 536 n. 71.

[16] Currently, 46 states are authorized to administer their own permitting programs for the discharge of pollutants into navigable waters in lieu of the federally administered NPDES program. See State NPDES Program Authority, available at http://www.epa.gov/ npdes/images/State_NPDES_Prog_Auth.pdf. Where a state has been authorized to administer its own program, the state becomes the NPDES permit-issuing agency in lieu of the EPA. For these state programs, the EPA retains oversight and veto authority, as well as authority to enforce any violation of the CWA or of a state-issued discharge permit. See 33 U.S.C. § 1342(c), (d), and (i). For purposes of this opinion, references to the EPA's implementation of the CWA or the EPA's regulations also refers to authorized states' implementation of the CWA.

[17] For purposes of clarity, we refer to overruled regulations or regulations being challenged using the Federal Register, as opposed to the Code of Federal Regulations.

[18] The relevant portion of the APA, 5 U.S.C. § 553, requires that "[g]eneral notice of proposed rule making shall be published in the Federal Register. . . ." Id. § 553(b). Furthermore, the Rule requires:

After notice required by this section, the agency shall give interested persons an opportunity to participate in the rule making through submission of written data, views, or arguments with or without opportunity for oral presentation. After consideration of the relevant matter presented, the agency shall incorporate in the rules adopted a concise general statement of their basis and purpose.

Id. § 553(c).

[19] Section 1369 provides in relevant part:

(b) Review of Administrator's actions; selection of court; fees

(1) Review of the Administrator's action. . . in making any determination as to a State permit program submitted under section 1342(b) of this title, []in approving or promulgating any effluent limitation or other limitation under section 1311, 1312, 1316, or 1345 of this title, [or] in issuing or denying any permit under section 1342 of this title . . . may be had by any interested person in the Circuit Court of Appeals of the United States for the Federal judicial district in which such person resides or transacts business which is directly affected by such action upon application by such person. Any such application shall be made within 120 days from the date of such determination, approval, promulgation, issuance or denial, or after such date only if such application is based solely on grounds which arose after such 120th day.

33 U.S.C. § 1369(b) (emphasis added).

[20] Although the Poultry Petitioners challenge certain provisions of the 2008 Rule jointly with the Farm Petitioners, they also filed a separate challenge to the EPA Letters. Thus, for purposes of clarity, hereinafter, references to the Farm Petitioners refer to the Farm Petitioners' and Poultry Petitioners' challenges to provisions of the 2008 Rule. References to the Poultry Petitioners refer to the Poultry Petitioners' separate challenge to the EPA Letters.

[21] Nat'l Pork Producers Council v. Envtl. Prot. Agency, No. 08-61093 (5th Cir.2008).

[22] Dairy Bus. Ass'n Inc. v. Envtl. Prot. Agency, No. 09-1574 (7th Cir.2009); Nat'l Milk Producers Fed'n v. Envtl. Prot. Agency, 08-4166 (7th Cir.2008).

[23] United Egg Producers v. Envtl. Prot. Agency, No. 08-3870 (8th Cir.2008).

[24] Natural Res. v. Nat'l Pork, No. 08-75023 (9th Cir.2008).

[25] Nat'l Pork Producers v. Envtl. Prot. Agency, No. 08-9584 (10th Cir.2008).

[26] N.C. Pork v. Envtl. Prot. Agency, No. 08-1387 (D.C.Cir.2008).

[27] 33 U.S.C. § 1319(a).

[28] Id. § 1319(b).

[29] Id. § 1319(d).

[30] Id. § 1319(c).

[31] Id. § 1311.

[32] Id. § 1312.

[33] Id. § 1316.

[34] Id. § 1317.

[35] Id. § 1318.

[36] Id. § 1328.

[37] Id. § 1342.

[38] Id. § 1345.

[39] As previously explained, treated manure from CAFOs is typically applied to cropland as fertilizer. This fertilizing process is called land application.

[40] Specifically, section 1369(b)(1) grants courts of appeals original jurisdiction to review agency "final actions":

(A) in promulgating any standard of performance under section 1316 of this title,

(B) in making any determination pursuant to section 1316(b)(1)(C) of this title,

(C) in promulgating any effluent standard, prohibition, or pretreatment standard under section 1317 of this title,

(D) in making any determination as to a State permit program submitted under section 1342(b) of this title,

(E) in approving or promulgating any effluent limitation or other limitation under section 1311, 1312, 1316, or 1345 of this title,

(F) in issuing or denying any permit under section 1342 of this title, and

(G) in promulgating any individual control strategy under section 1314(l) of this title. . .

34 F.3d 114 (1994)

[115] Donald W. O'Brien, Jr., Rochester, NY (Woods, Oviatt, Gilman, Sturman & Clarke; Alan J. Knauf, Knauf, Craig & Doran, P.C., of counsel), for plaintiffs-appellants.

John W. Clarke, Rochester, NY (James H. Ferreira, Harris Beach & Wilcox, of counsel), for defendants-appellees.

(Jeffrey H. Kirby, Glenmont, NY), for New York Farm Bureau, Inc. and American Farm Bureau Federation, amici curiae.

(John J. Rademacher and Michael J. Stientjes, Park Ridge, IL, of counsel), for American Farm Bureau Federation, amicus curiae.

(Lois J. Schiffer, Acting Asst. Atty. Gen., U.S. Dept. of Justice, Environmental and Natural Resources Div., Washington, DC (Anne S. Almy, Nancy K. Stoner, Mark R. Haag; Stephen J. Sweeney, Office of General Counsel, Joseph G. Theis, Office of Enforcement, U.S.E.P.A., of counsel)), for U.S., amicus curiae.

Before: OAKES and MINER, Circuit Judges, and CARTER, Senior District Judge.^[1]

OAKES, Senior Circuit Judge:

This is a citizen's suit under the Clean Water Act of 1977, 33 U.S.C. §§ 1251 et seq. (1988 & Supp. IV 1992), ("CWA" or the "Act"), with some state law claims for nuisance, negligence and trespass. The suit arises on account of the liquid manure spreading operations of a large dairy farm in western New York. After denial of a motion to dismiss the complaint and of a motion for summary judgment, the case proceeded to jury trial. See Concerned Area Residents for the Env't v. Southview Farm, 834 F.Supp. 1410 (W.D.N.Y.1993) ("CARE I"). Following a jury verdict in plaintiffs' favor on five CWA violations and the state law trespass claim, the United States District Court for the Western District of New York, David Larimer, Judge, granted judgment to the defendants as a matter of law on the five CWA violations. Concerned Area Residents for the Env't v. Southview Farm, 834 F.Supp. 1422 (W.D.N.Y.1993) ("CARE II"). The court left standing the verdict and damages of $4,101 on the trespass count. CARE II, 834 F.Supp. at 1435-37.

The appeal by plaintiffs involves only the five CWA violations and raises anew the question what is a "point source" within the meaning of 33 U.S.C. § 1362(14), a question this court touched upon in United States v. Plaza Health Labs., Inc., 3 F.3d 643, 649 (2d Cir.1993) (holding that, for purposes of criminal liability, a human being is not a point source under the CWA), cert. denied, ___ U.S. ___, 114 S.Ct. 2764, 129 L.Ed.2d 878 (1994). The appeal also concerns whether the liquid manure spreading operations fell within the "agricultural stormwater discharges" exception to point source discharges under the Act. 33 U.S.C. § 1362(14).

We now hold that the liquid manure spreading operations are a point source within the meaning of CWA section 1362(14) because the farm itself falls within the definition of a concentrated animal feeding operation ("CAFO") and is not subject to the agricultural exemption.

I. Background

Plaintiffs, who refer to themselves collectively as Concerned Area Residents For the Environment ("CARE"), are a group of land owners who live near Southview Farms, a dairy farm in the town of Castile, in Wyoming County, New York. Defendants are the farm itself, and Richard H. Popp, an [116] individual. Southview Farm is one of the largest dairy farms in the State of New York. It employs twenty-eight full-time and nine part-time employees. As of 1992, it owned 1,100 crop acres and had an animal population of 1,290 head of mature cows with over 900 head of young cattle, heifers and calves, making a total of 2,200 animals.

Unlike old-fashioned dairy farms, Southview's operations do not involve pasturing the cows. Instead, the cows remain in their barns except during the three times per day milking procedure. Also unlike old-fashioned dairy farms where the accumulated manure was spread by a manure spreader, Southview's rather enormous manure operations are largely performed through the use of storage lagoons and liquid cow manure. The storage lagoons number five on the main farm property ("A Farm"). One four-acre manure storage lagoon has a capacity of approximately six-to-eight million gallons of liquid cow manure.

In connection with this particular manure storage lagoon, Southview has installed a separator which pumps the cow manure over a mechanical device which drains off the liquid and passes the solids out through a compressing process. The solids that remain are dropped into bins for transport while the liquid runs by gravity through a pipe to the four-acre manure storage lagoon. This separated liquid was apparently used for the purpose of washing down the barns where the cows are housed.

Insofar as application of the manure as fertilizer to the land is concerned, there is a center pivot irrigation system for spreading liquid manure over the fields. The diameter of the circle of this irrigation system can be modified to conform to the field on which the application is being made. A series of pipes connects the pivot to the liquid manure storage lagoons. The pivot is self-propelled with the height of the arc from the manure spray being somewhere between 12 and 30 feet.

Southview also spreads its manure with a hard hose traveler which is a long piece of plastic tubing on a large reel. The traveler can be unwound and has a nozzle on the end which can send liquid manure 150 feet in either direction making a 300-foot-wide swath for purposes of fertilizing farm fields. The height of the arc from the projected spray is "a couple of feet higher" than that of the center pivot irrigator. Since 1988, a piping system consisting of a six-inch aluminum pipe and running under both the state highway and a town road to a lagoon on at least one Southview Farm other than the "A Farm," has transported liquid manure from the storage lagoon to various locations without the use of vehicles.

Southview also uses conventional manure spreading equipment including spreaders pulled by tractors and self-propelled vehicles which, generally speaking, have a 5,000 gallon capacity for liquid manure. These vehicles were used to spread manure from the smaller lagoons on the "A Farm" which do not receive liquid manure processed through the separation system. Southview's manure spreading record reflects the application of millions of gallons of manure to its fields.

II. Procedural Posture

On May 9, 1990, the plaintiffs notified Southview Farms and Richard H. Popp that they intended to sue the defendants for violations of federal and state environmental laws in connection with Southview's manure operations. (Letter of 5/9/90 from Alan J. Knauf, attorney for CARE, to Richard H. Popp.) On January 22, 1991, the plaintiffs filed the original complaint. Complaint, CARE v. Southview Farms, No. 91-6031 (W.D.N.Y. filed Jan. 22, 1991) ("Original Complaint") and on May 31, 1991, they filed an amended complaint. Complaint, CARE v. Southview Farms, No. 91-6031 (W.D.N.Y. filed May 31, 1991) ("Amended Complaint").

On May 19, 1993, after a three-week trial commencing April 26, 1993, the eight-person jury returned a verdict in favor of the plaintiffs on five of the eleven CWA violations which had been submitted to the jury for its consideration. On July 1, 1993, the defendants filed a motion for judgment as a matter of law pursuant to Fed.R.Civ.P. 50(b). On October 19, 1993, the court granted in part the defendants' Fed.R.Civ.P. 50(b) motion for judgment as a matter of law ("judgment m.o.l.," formerly judgment notwithstanding [117] the verdict or "judgment n.o.v."), CARE II, 834 F.Supp. at 1437, and a final judgment was entered thereafter.

On November 18, 1993, the plaintiffs timely filed a notice of appeal. This court has jurisdiction under 28 U.S.C. § 1291 (1988).

III. Standard of Review

The moving party bears a heavy burden to prevail on its motion for judgment m.o.l. Fed.R.Civ.P. 50(b); Stubbs v. Dudley, 849 F.2d 83, 85 (2d Cir.1988), cert. denied, 489 U.S. 1034, 109 S.Ct. 1095, 103 L.Ed.2d 230 (1989). In ruling on such a motion, the court must "consider the evidence in the light most favorable to the [non moving party] and ... give that party the benefit of all reasonable inferences that the jury might have drawn in [its] favor from the evidence." Smith v. Lightning Bolt Productions, Inc., 861 F.2d 363, 367 (2d Cir.1988). To grant a judgment m.o.l., the court must find that there is "`such a complete absence of evidence supporting the verdict that the jury's findings could only have been the result of sheer surmise and conjecture, or ... such an overwhelming amount of evidence in favor of the movant that reasonable and fair minded men could not arrive at a verdict against [it].'" Song v. Ives Lab., Inc., 957 F.2d 1041, 1046 (2d Cir.1992) (quoting Mattivi v. South African Marine Corp., "Huguenot", 618 F.2d 163, 168 (2d Cir.1980)).

IV. Discussion

The CWA provides that, absent a permit and subject to certain limitations, "the discharge of any pollutant by any person shall be unlawful." 33 U.S.C. § 1311(a); see Plaza Health, 3 F.3d at 645. A pollutant includes "solid waste, ... sewage, ... biological materials, ... and agricultural waste discharged into water" and thus includes the manure in this case. 33 U.S.C. § 1362(6). A "discharge" is "any addition of any pollutant to navigable waters from any point source." 33 U.S.C. § 1362(12). The term "point source" includes "any discernible, confined and discrete conveyance, including but not limited to any ... concentrated animal feeding operation.... This term does not include agricultural stormwater discharges and return flows from irrigated agriculture." 33 U.S.C. § 1362(14). Our basic questions on review then are whether the defendants discharged the manure pollutant from any point source into navigable waters and whether the agricultural stormwater exemption or any other limitation applies.

The plaintiff-appellants' contentions relate to five specific CWA violations which the jury found but the district court overturned on the defendants' motion for judgment m.o.l. These specific violations are as follows:

(1) A July 13, 1989, violation on field 104 on the so-called Wyant Farm, located to the east of Middle Reservation Road and bordering on Letchworth State Park through which the Genesee River runs. As to this violation, two of the plaintiffs observed liquid manure flowing into and through a swale on the Wyant Farm and through a drain tile leading directly into a stream which ultimately flows into the Genesee River.

(2) July 12, 1989, and August 22, 1989, violations as to which the district court concluded that the jury finding of a discharge was "sheer surmise and conjecture." While the district court concluded that there was a "complete absence of substantial evidence supporting the verdict," the appellants argue that there is strong circumstantial evidence adequately supporting the jury's conclusion with respect to these violations.

(3) September 26, 1990, and April 15, 1991, violations as to which the appellants claim that the district court erroneously set aside the jury verdicts because no reasonable juror could find that the discharges were not excepted under the Act as agricultural stormwater discharges.

It is at this point that the United States amicus position and the position of the appellants tend to coincide, if not directly meet. It is significant to note, as previously stated, that the cows are not put out to pasture. The fields to which the manure is applied, as above indicated, are used for crops. The United States appears as amicus curiae in support of the appellants on the basis that, because the Southview operations involve more than 700 cattle, it is a facility which is defined in the regulations under the Act as a [118] CAFO, and therefore one type of "point source" under the Act, thereby requiring a permit for discharges which was not obtained in this instance. As we have stated, the Act defines the term "point source" as including "any ... concentrated animal feeding operation." 33 U.S.C. § 1362(14). In this connection, the district court concluded that, as a matter of law, Southview was not a CAFO because crops are grown on a portion of the farm. The United States contends that Southview is a CAFO as a matter of law because crops are not grown in the feed lot in which the milking cows are confined.

In the following discussions we explore the appellants' contentions in turn and then discuss the United States' position as amicus with respect to the September 26, 1990, and April 15, 1991, CWA violations which is opposed by the New York State Farm Bureau as amicus.

A. July 13, 1989, Violation on Field 104

The July 13 violation, found by the jury but overturned by the district court, as we have said, occurred on field 104 on the Wyant property which shares the boundary line with Letchworth State Park. Field 104 contains a slew or swale which tends to collect liquid manure spread by Southview's tankers and conveys it through a pipe in a stonewall and through the stonewall itself into a ditch which runs for some length on the Southview property before it reaches the boundary of the state park.

On July 13, 1989, appellants Kirk Bly and Philip Karcheski observed the manure collecting in the slew or swale and flowing into the ditch which in turn flowed off of the Southview property into Letchworth State Park property, and, in turn, joined a stream which ultimately flowed into the Genesee River. (Transcript of 4/30/93 at 9 ("Bly Testimony")); (Transcript of 4/28/93 at 6 ("Karcheski Testimony")).

The district court held and appellees contend that the July 13 discharge was not a point source discharge because the liquid simply and quite naturally flowed to and through the lowest areas of the field, and that the pollutants reached the stream that flows into the Genesee "in too diffuse a manner to create a point source discharge." The district court also suggested that the pollutants were not "collected" by human activity but in fact the opposite occurred in that the manure was dispersed over the ground.

The appellants argue that, given the testimony and the photographic evidence (reprinted in Joint Appendix at 216, 218-223) before the court, even if the liquid manure flowing from field 104 into the swale could be characterized as "diffuse run-off," as the district court characterized it, the manure pollutant was nevertheless thereafter channelled or collected sufficiently to constitute a discharge by a point source. Alternatively, the appellants contend that the appellees' liquid-manure-spreading vehicles themselves may be treated as point sources because 33 U.S.C. § 1362(14) defines a point source to include a "container" or "rolling stock." They point out that a number of district court cases have found vehicles to be within the definition of point sources. See, e.g., Avoyelles Sportsmen's League, Inc. v. Marsh, 715 F.2d 897, 922 (5th Cir.1983) (bulldozers and backhoes constitute point sources under the CWA); United States v. Tull, 615 F.Supp. 610, 622 (E.D.Va.1983) (bulldozers and dump trucks), aff'd, 769 F.2d 182 (4th Cir.1985), rev'd on other grounds, 481 U.S. 412, 107 S.Ct. 1831, 95 L.Ed.2d 365 (1987); United States v. Weisman, 489 F.Supp. 1331, 1337 (M.D.Fla. 1980) (bulldozers and dump trucks). They urge that by pumping the liquid manure from Southview's various lagoons into manure spreading tankers and other vehicles before discharging the liquid manure on to its various fields, Southview has "collected by human effort" the pollutant discharged into the navigable waters. See Plaza Health, 3 F.3d at 651 (Oakes, J., dissenting).

We agree with the appellants on both counts. We believe that the swale coupled with the pipe under the stonewall leading into the ditch that leads into the stream was in and of itself a point source. As this court has previously noted, the definition of a point source is to be broadly interpreted. Dague v. City of Burlington, 935 F.2d 1343, 1354 (2d Cir.1991), rev'd on other grounds, ___ U.S. ___, 112 S.Ct. 2638, 120 L.Ed.2d 449 (1992); [119] see also Sierra Club v. Abston Constr. Co., 620 F.2d 41, 45-46 (5th Cir.1980) (defendants were engaged in strip mining operations and placed their overburden in highly erodible piles which were then carried away by rain water through naturally created ditches); United States v. Earth Sciences, Inc., 599 F.2d 368, 374 (10th Cir.1979) (discharge from a large capacity reserve sump serving a gold extraction process could be a point source even though "the source of the excess liquid is rainfall or snow melt"). In Sierra Club, the Fifth Circuit held that a defendant is not relieved from liability simply because it does not actually construct the conveyances "so long as they are reasonably likely to be the means by which the pollutants are ultimately deposited into a navigable body of water." Sierra Club, 620 F.2d at 45; see also United States v. Oxford Royal Mushroom Prods., Inc., 487 F.Supp. 852, 854 (E.D.Pa.1980) (discharge resulting from spraying overabundance of water onto surface of an irrigation field which, in turn, ran off into a nearby stream through a break in a berm around the field may constitute discharge from a point source). Here, the liquid manure was collected and channelized through the ditch or depression in the swale of field 104 and thence into the ditch leading to the stream on the boundary of the Southview property as it adjoins Letchworth State Park. Nothing in Plaza Health is to the contrary. There the court simply refused to treat a human being as a "point source" under the criminal provisions of the Act by virtue of the rule of lenity. Plaza Health, 3 F.3d at 649.

Moreover, we agree with the appellants that, alternatively, the manure spreading vehicles themselves were point sources. The collection of liquid manure into tankers and their discharge on fields from which the manure directly flows into navigable waters are point source discharges under the case law. See, e.g., Tull, 615 F.Supp. at 622; Weisman, 489 F.Supp. at 1337; Avoyelles Sportsmen's League, Inc. v. Alexander, 473 F.Supp. 525, 532 (W.D.La.1979); see also Karcheski Testimony at 8 (testifying that, on July 12 and 13, tankers were used to spread manure onto field 104); Bly Testimony at 7-8 (same).

The district court also believed that the defendant's actions were "the kind of activity that Congress wanted to keep beyond the reach of the Act," like irrigation return flows or storm-water runoffs. Again, we disagree, for reasons that appear below in our discussion of the position of the United States.

B. July 12, 1989, and August 22, 1989, Violations

Bly and Karcheski observed liquid manure spreading and tracked it down field and downstream on July 13, the day after they observed the spreading in the same field of "a large amount of liquid manure." In particular, Bly stated that, "on July 12, 1989," "[t]here was a racetrack type pattern in the field, and what caught my eye was a running light in the far corner of the field." Bly Testimony at 6. Bly observed Southview vehicles for several minutes and made an entry on his calendar indicating "dumping in [the] corner of [the] field, above stream, across from Wells' farm." Bly Testimony at 6-7. Karcheski on that same evening at dusk while driving on Middle Reservation Road, "noticed a light" "in the southeastern corner of [field 104]," Karcheski Testimony at 3, and returning about an hour or so later observed tanker trucks entering the Wyant Farm property via a field adjacent to field 104. Each testified that the same spreading activities were occurring on both July 12 and July 13. See Bly Testimony at 7-8; Karcheski Testimony at 7.

Similarly on August 22, 1989, both Bly and Karcheski observed Southview's vehicles spreading manure on the same field. Bly testified that "again, this is the same field, same area, and again, I noticed a heavy application of manure had been applied again." Bly Testimony at 11. Karcheski testified that "the tankers were coming down the road again and entering the same area, and I waited until they went by, and I turned around and came back." Karcheski Testimony at 8.

The district court held that the jury's finding of a discharge on July 12, 1989, and August 22, 1989, was "sheer surmise and conjecture" because the plaintiffs' offered no direct eyewitness testimony of manure actually [120] leaving Southview property on those dates. This finding overlooks the strong circumstantial case made out by the plaintiffs and also disregards the standard applicable to a Rule 50(b) motion for judgment m.o.l. As we stated earlier, but now stress:

In ruling on a motion for a judgment n.o.v., the district court is required to consider the evidence in the light most favorable to the party against whom the motion was made and to give that party the benefit of all reasonable inferences that the jury might have drawn in his favor from the evidence. The court "`cannot assess the weight of conflicting evidence, pass on the credibility of the witnesses, or substitute its judgment for that of the jury.'"

Lightning Bolt Prods., 861 F.2d at 367 (quoting Katara v. D.E. Jones Commodities, Inc., 835 F.2d 966, 970 (2d Cir.1987) (quoting Mattivi, 618 F.2d at 167)); see also Fed.R.Civ.P. 50(a); Toltec Fabrics, Inc. v. August Inc., 29 F.3d 778, 782 (2d Cir.1994).

We believe that the jury was justified in inferring that the same activities that Bly and Karcheski observed in detail on July 13, 1991, probably had the same result on July 12, 1989, and August 22, 1989, namely that they were violations of the Clean Water Act at field 104. Proof of three subsequent discharges of liquid manure from the same field on April 14, 1991, April 15, 1991, and October 4, 1991, coupled with plaintiffs' trial exhibits depicting discharges which were observed and photographed on those days further buttressed the testimony of Bly and Karcheski. See Photographs (reprinted in Joint Appendix at 216, 218-23). Although those particular subsequent discharges were not included as specific point source discharges within either the amended or supplemental complaints, they provided the jury with additional evidence with which to infer that violations of the Clean Water Act did occur on both July 12, and August 22, 1989. As stated in O'Brien v. Nat'l Gypsum Co., 944 F.2d 69, 72 (2d Cir.1991), "it is beyond any doubt that circumstantial evidence alone may suffice to prove adjudicative facts." See also Michalic v. Cleveland Tankers, Inc., 364 U.S. 325, 330, 81 S.Ct. 6, 10-11, 5 L.Ed.2d 20 (1960); Tyler v. Bethlehem Steel Corp., 958 F.2d 1176, 1184 (2d Cir.), cert. denied, ___ U.S. ___, 113 S.Ct. 82, 121 L.Ed.2d 46 (1992). The fact that the evidence of the point source discharges "is circumstantial does not render the jury's conclusion conjectural." In Re Joint Eastern and Southern Dists. Asbestos Litig., 798 F.Supp. 925, 931 (E. & S.D.N.Y. 1992), rev'd on other grounds, 995 F.2d 343 (2d Cir.1993) and 995 F.2d 346 (2d Cir.1993).

C. September 26, 1990, and April 15, 1991, Violations

We believe the district court also erred in setting aside the jury's verdict on the September 26, 1990, and April 15, 1991, violations on the basis that "no reasonable juror could find that these discharges were not excepted under the Act as agricultural stormwater discharges." CARE II, 834 F.Supp. at 1430. The district court drew this conclusion even though it had given explicit instructions to the jury on the availability of the "agricultural stormwater" exemption under 33 U.S.C. § 1362(14). Id. at 1429.

We agree with appellants that, while the statute does include an exception for "agricultural stormwater discharges," there can be no escape from liability for agricultural pollution simply because it occurs on rainy days. For guidance in our analysis, we examine the legislative and regulatory history of this exception which the court relies upon in arriving at its conclusion.

The exemption at issue was added by the Water Quality Act of 1987, Pub.L. No. 100-4 § 503, 101 Stat. 7, 75 (1987). Because Congress mandated comprehensive regulations of certain forms of industrial and municipal stormwater run-off under 33 U.S.C. § 1342(p), one can infer that Congress wanted to make it clear that agriculture was not included in this new program. We agree that agricultural stormwater run-off has always been considered nonpoint-source pollution exempt from the Act. See, e.g., 40 C.F.R. § 122.3(e) (1993) (excepting "introduction of pollutants from non point-source agricultural and silvicultural activities").

We think the real issue is not whether the discharges occurred during rainfall or were mixed with rain water run-off, but rather, [121] whether the discharges were the result of precipitation. Of course, all discharges eventually mix with precipitation run-off in ditches or streams or navigable waters so the fact that the discharge might have been mixed with run-off cannot be determinative. Accordingly, we must uphold the verdict to the extent that the jury had a reasonable basis to find that the discharges on September 26, 1990, and April 15, 1991, were not the result of rain, but rather simply occurred on days when it rained. We first examine whether the jury had a reasonable basis to find that these two violations were not the result of rain. We then examine whether the alleged violations must be categorized as "agricultural stormwater discharges," or whether they fall into the CAFO exception.

1. The Jury's Findings

As to the September 26 discharge, Karcheski testified that, "after a rain[] and manure had been applied on the field, [the manure] was literally running off everywhere up and down those field-type areas." Karcheski Testimony at 14-15. Similarly, Bly testified that he "could see the manure flowing, the tracks made by the equipment, flowing off the end of the field where there was severe erosion." Bly Testimony at 16. The New York State Department of Environmental Conservation Report ("D.E.C. Report"), reprinted in Joint Appendix at 227, while indicating that the run-off was attributed to "heavy rain," also points out that the "[f]ields have been saturated with liquid manure and farm continues to spread in same area." Sally Hunt, a witness who is not a party but who lives near the Karcheskis, testified that Southview Farms had spread the manure which "had pooled in the corner of their field right next to our property ... larger than I had seen before, and it had been pooled there, and then it rained.... Then it drizzled into the ditch and through the drainage pipe." (Transcript of 5/5/93 at 4). We think the jury could properly find that the run-off was primarily caused by the over-saturation of the fields rather than the rain and that sufficient quantities of manure were present so that the run-off could not be classified as "stormwater."

As to the April 15, 1991, discharge, Karcheski testified that there was "a lot of manure [was] coming off the field through the areas where the banks had fallen away and ... tractors had come in and out, and they leave culverts or furrows and that. There was primarily in the bottom it had a lot of manure coming off." Karcheski Testimony at 20. Bly testified that, on April 14, 1989, he "observed heavy manure applications, once again, to this field" and "brown" "water runoff flowing off the field towards the fencepost." Bly Testimony at 28, 39. Photographs were received in evidence, and, based upon these photographs and Bly's testimony, the jury could have found a discharge unaffected by rain "on or about April 15, 1991." Similarly, as to the April 15 incident, the D.E.C. Report, reprinted in Joint Appendix at 226, while attributing the incident to rain, noted that there was "[e]xtra heavy application of manure in fields" and a "heavy cover of liquid manure."

2. CAFO Exception To Nonpoint Source Provisions

The New York Farm Bureau, Inc., and American Farm Bureau Federation, as amici curiae, ("Farm Bureau amici"), argue that agricultural activities are regulated as "nonpoint sources" under the Clean Water Act and are not subject to citizens' suits enforcement. They point out that the Act had its origin in the Federal Water Pollution Control Act Amendments of 1972, 33 U.S.C. § 1251 et seq., and that this act focused on "point source" discharges. The 1972 amendment imposed effluent limitations through a federally mandated and supervised permit system, the National Pollution Discharge Eliminations System (N.P.D.E.S.), Pub.L. No. 92-500, § 403, 86 Stat. 816, 883 (1972), modified as amended, 33 U.S.C. § 1342 (1988 & Supp.IV 1992). The Farm Bureau amici point out that nonpoint sources "were addressed by Congress through the Section 208 planning process which placed primary responsibility on the states." Brief of Farm Bureau Amici at 6 (citing Pub.L. No. 92-500, § 208 (1972), 86 Stat. 816, 839, codified as amended, 33 U.S.C. § 1288 (1988 & Supp. IV 1992); S.Rep. No. 414, 92d Cong., 1st Sess. 139, reprinted in 1972 U.S.C.C.A.N. 3668 [122] ("S.Rep. 414")). Thus, when Congress enacted the 1972 Amendments, it considered and chose to exempt agricultural activities under the Section 208 nonpoint source provisions "except in the case of [CAFOs]." Brief of Farm Bureau Amici at 7 ((emphasis added) (citing Pub.L. No. 92-500, § 208(b)(2)(F), 86 Stat. 816, 841 (1972), codified as amended, 33 U.S.C. § 1288(b)(2)(F); S.Rep. 414, reprinted in 1972 U.S.C.C.A.N. at 3759) (supplemental views of Sen. Dole)).

It is understood that the 1972 framework remains in place and that the revision made in 1977 to the point source definition excluded "return flows from irrigated agriculture," 33 U.S.C. § 1362(14), thereby overriding, in part, Natural Resources Defense Counsel, Inc. v. Train, 396 F.Supp. 1393, 1402 (D.D.C. 1975) (holding that the Federal Water Pollution Control Act Amendments of 1972 do not authorize the exclusion of point sources in the agriculture, storm sewer, and silviculture categories from the permit requirements of the N.P.D.E.S.), aff'd sub nom. Natural Resources Defense Council, Inc. v. Costle, 568 F.2d 1369, 1382 (D.C.Cir.1977) (holding that the E.P.A. has no discretion to limit regulation of point sources to those it deems most significant). The Congress is said to have made its intent clear in the legislative history which states that the "effect" of the newly created section 402 is to amend section 208(b)(2)(F) and to "exempt irrigation return flows from all permit requirements under section 402 ... and assure that area wide waste treatment management plans under section 208 include consideration of irrigated agriculture." S.Rep. No. 95-217, 95th Cong., 1st Sess. 35 (1977), reprinted in 1977 U.S.C.C.A.N. 4326, 4360. The Report further provides:

In exempting discharges composed "entirely" of return flows from irrigated agriculture from the requirements of section 402, the committee did not intend to differentiate among return flows based upon their content. The word "entirely" was intended to limit the exception to only those flows which do not contain additional discharges from activities unrelated to crop production.

Id. (emphasis added).

Not disagreeing with any of the above, the United States amicus points out that the Clean Water Act by definition includes in the term "point source," "any discernible, confined and discrete conveyance, including but not limited to, any ... concentrated animal feeding operation...." 33 U.S.C. § 1362(14). The regulatory definition of a CAFO is found at 40 C.F.R. 122.23(b) (1994). This provision defines CAFO as an animal feeding operation ("AFO") that meets the criteria of appendix B, which, as pertinent here denotes that the AFO contains more than 700 mature dairy cattle. 40 C.F.R. 122.23(b). The preambles to the regulations indicate that if an AFO exceeds the relevant number of animal units provided in Appendix B Supp. to Part 122 at (a), the AFO is presumably a CAFO, unless "the only time a discharge of pollutants into navigable waters occurs is during a 25 year, 24-hour rainfall event." 40 Fed.Reg. 54182, 54183 (Nov. 20, 1975) (proposed regulations); 41 Fed.Reg. 11458, 11458 (Mar. 18, 1976) (final regulations); see also Brief for United States Amicus at 7. Given that it is undisputed that the feed lot at Southview confines more than 700 mature dairy cattle, Brief for Defendants-Appellees at 4, and there is no claim that the run-offs in question were caused by a 25-year, 24-hour rainfall event, we face the question whether the fact that crops are grown on the fields, even though the cattle at Southview are not pastured on those fields, prevents Southview from being an AFO.

An AFO is defined in the regulations as "a lot or facility ... where the following conditions are met:

(i) Animals ... have been, are, or will be stabled or confined and fed or maintained for a total of 45 days or more in any 12-month period, and, (ii) crops, vegetation forage growth, or post-harvest residues are not sustained in the normal growing season over any portion of the lot or facility.

40 C.F.R. 122.23(b)(1). There appears to be no doubt that Southview's feed lot meets the criteria of sub-paragraph (i). The district court held that Southview was not an AFO because crops are grown on fields adjacent to the feed lot in which the milking cows are [123] penned; therefore, according to the court, Southview does not meet the criteria of subparagraph (ii).

The district court's holding misreads the regulations and particularly paragraph (ii). A lot or facility is an AFO when it confines and maintains animals on a lot which does not contain vegetation in the normal growing season. The vegetation criterion applies to the lot or facility in which the animals are confined. The definition of "feed lot" contained in the regulations setting forth technology-based effluent limitations for such facility supports this interpretation. While the effluent limitation applicable to feed lots is not applicable to Southview because it has not obtained an N.P.D.E.S. permit, 40 C.F.R. 412.12, nevertheless, the regulation lends support to the United States' position, and the view we adopt, that the vegetation criterion pertains only to the lot or facility in which the animals are confined under that definition or "feed lot." It is said to be

a concentrated, confined animal or poultry growing operation for meat, milk or egg production, or stabling, in pens or houses wherein the animals or poultry are fed at the place of confinement and crop or forage growth or production is not sustained in the area of confinement.

40 C.F.R. 412.11(b). The preamble to this regulation explains that the Environmental Protection Agency ("E.P.A") chose to exclude from the definition those livestock holding areas in which crops are sustained in the area where the livestock are confined because "[u]nder [such] circumstances the combined effect of soil and vegetative assimilation of manure and the lower rate of manure depletion per unit area could reasonably be expected to preclude any significant pollution problem." 39 Fed.Reg. 5703, 5704 (Feb. 14, 1974). There is thus, as the United States amicus brief explains, a two-fold rationality for the exemption from the definition of CAFO for facilities in which animals are confined in vegetated areas. First, the fact that vegetation can be sustained in the area in which the animals are confined suggests a lower density of animals in that area or otherwise they would eat or trample all of the vegetation. Second, the vegetation itself is helpful in absorbing and reducing the amount of pollution. The E.P.A. regulations probably rely upon confinement in un-vegetated areas as an indicator of the "industrialized" nature of the confinement and therefore they include only such facilities — such as Southview's — within the regulatory definition of "animal feeding operations."

We wish to emphasize that the only previous case squarely on point is in conformity with the position we take here. Higbee v. Starr, 598 F.Supp. 323, 325 (E.D.Ark. 1984) (hogs confined in finishing houses in which hog waste fell through slats in floors into holding basins and was then spread on neighboring fields; operation held to be a CAFO), aff'd without opinion, 782 F.2d 1048 (8th Cir.1985). Accordingly, the district court erred in deciding that Southview does not operate a CAFO based on the growth of crops outside the area in which the cows are confined. Because there are no disputed material facts with respect to whether Southview's feed lot is a CAFO, this court may determine, as a matter of law, that Southview operates a CAFO, which in turn may be defined as a point source and hence is not to be treated as an agricultural nonpoint source operation calling for regulations by the states under the section 208 planning process.

V. Conclusion

In short, we conclude with the United States as amicus, that Southview has an animal feeding lot operation with a tremendous number of cattle in a concentrated feeding facility in which no vegetation is grown; that operation in and of itself is a point source within the Clean Water Act and not subject to any agricultural exemption thereto.

Accordingly the judgment of the district court, setting aside the jury's verdict, is reversed and the cause remanded for further proceedings in accordance with this opinion.

[1] The Honorable Robert L. Carter, Senior District Judge, Southern District of New York, sitting by designation.