WATERKEEPER ALLIANCE, INC., AMERICAN FARM BUREAU FEDERATION, NATIONAL CHICKEN COUNCIL, NATIONAL PORK PRODUCERS COUNCIL, AMERICAN LITTORAL SOCIETY, SIERRA CLUB, INC., NATURAL RESOURCES DEFENSE COUNCIL, INC., Petitioners/Intervenors, —v.— UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, MICHAEL O. LEAVITT, Administrator, United States Environmental Protection Agency, Respondents. U.S. Court of Appeals for the Second Circuit, August term, 2004. (Argued: December 13, 2004 Decided: February 28, 2005) Docket Nos. 03-4470 (L), 03-4621 (C), 03-4631 (C), 03-4641 (C), 03-4849 (C), 04-40199 (C), 03-40229 (C). The petitioners challenge an administrative rule promulgated by the United States Environmental Protection Agency in order to regulate the emission of water pollutants by concentrated animal feeding operations. See National Pollutant Discharge Elimination System Permit Regulation and Effluent Limitation Guidelines and Standards for Concentrated Animal Feeding Operations, 68 Fed. Reg. 7176, 7179 (Feb. 12, 2003) (codified at 40 C.F.R. Parts 9, 122, 123 and 412). The petitions for review are granted in part and denied in part. ... The Environmental Petitioners, for example, cite legislative history from 1972 in support of their position; however, the agricultural stormwater exemption was not added to the Clean Water Act until a full fifteen years later, when Congress passed the Water Quality Act of 1987. See Water Quality Act of 1987, Pub. L. No. 100-4 § 503, 101 Stat. 7 (1987). It would be improper for us to rely on statements from 1972 in order to resolve an ambiguity that was not created until 1987. In our view, prior legislative history is a hazardous basis for inferring the intent of a subsequent Congress, in the same way that “subsequent legislative history is a hazardous basis for inferring the intent of an earlier Congress.” Pension Benefit Guaranty Corp. v. LTV Corp., 496 U.S. 633, 650 (1990) (emphasis added) (citation omitted). And, in any event, none of the legislative history from 1972 comes close to casting doubt on the construction we permit here.23 23 For example, the Environmental Petitioners substantially rely on a statement from Senator Robert Dole acknowledging the environmental threat posed by “[p]recipitation runoff” from areas storing animal and poultry waste. 2 A LEGISLATIVE HISTORY OF THE WATER POLLUTION CONTROL ACT AMENDMENTS OF 1972, Committee Print Compiled for the Senate Committee on Public Works by the Library of Congress, Ser. No. 93-1, p. 1295 (1973). Senator Dole did not at all suggest that the Act aimed, in fact, to regulate precipitation runoff. His statement about precipitation runoff was merely part of a larger discussion about the general environmental threat posed by animal and poultry waste. To wit, he stated that: “In these modern facilities, the use of bedding and litter has been greatly reduced; consequently, the manure which is produced remains essentially in the liquid state and is much more difficult to handle without odor and pollution problems. Precipitation runoff from these areas picks up high concentrates of pollutants, which reduce oxygen levels in receiving streams and lakes and accelerate the eutrophication process.” Id. ... In this consolidated petition, we review various challenges to a regulation promulgated by the United States Environmental Protection Agency under the Clean Water Act in order to abate and control the emission of water pollutants from concentrated animal feeding operations. While we deny many of the challenges here brought, we find that several aspects of the regulation violate the express terms of the Clean Water Act or are otherwise arbitrary and capricious under the Administrative Procedure Act. Accordingly, we grant the petitions in part and deny the petitions in part. We believe that the CAFO Rule comports both with Congress’ intent in enacting the agricultural stormwater exemption and with our holding in Southview Farm. So far as Congress’ intent is concerned, while the Rule holds CAFOs liable for most land application discharges, it prevents CAFOs from being held liable for “precipitation-related discharge[s]” where “manure, litter or process wastewater has [otherwise] been applied in accordance with site specific nutrient management practices that ensure appropriate agricultural utilization.” 40 C.F.R. § 122.23(e). In other words, like the Clean Water Act itself, the CAFO Rule seeks to remove liability for agriculture-related discharges primarily caused by nature, while maintaining liability for other discharges. So far as our holding in Southview Farm is concerned, discharges from land areas under the control of a CAFO can and should generally be regulated, but where a CAFO has taken steps to ensure appropriate agricultural utilization of the nutrients in manure, litter, and process wastewater, it should not be held accountable for any discharge that is primarily the result of “precipitation.” We also find unpersuasive the only other significant complaint the Environmental Petitioners lodge against the CAFO Rule’s agricultural stormwater exemption – namely that it is unreasonable, and hence improper, for the EPA to construe the term “agricultural” as encompassing any stormwater discharge from a land area under the control of a CAFO. The Environmental Petitioners contend that CAFOs must be viewed as industrial, not agricultural. We disagree. Dictionaries from the period in which the agricultural stormwater exemption was adopted define “agriculture” or “agricultural” in a way that can permissibly be construed to encompass CAFOs. For example, Webster’s New World Dictionary defined the term “agriculture” to include, inter alia, “work of cultivating the soil, producing crops, and raising livestock.” WEBSTER’S NEW WORLD DICTIONARY OF AMERICAN ENGLISH 26 (3rd College Ed. 1988). The Oxford English Dictionary similarly defined agriculture to include, inter alia, “cultivating the soil,” “including the allied pursuits of gathering in the crops and rearing live stock.” I THE OXFORD ENGLISH DICTIONARY 267 (2d Ed. 1989). Here, there is no question that CAFOs “rais[e]” or “rear” livestock and, because land-applied manure is used as fertilizer, “cultivat[e] the soil” as well. Cf. Preamble to the Final Rule at 7197 (“When manure or process wastewater is applied in accordance with practices designed to ensure appropriate agricultural utilization of nutrients, it . . . fulfills an important agricultural purpose, namely the fertilization of crops . . .”). As a result, we cannot say that the EPA has impermissibly treated CAFOs as agricultural in character. Additionally, we note again that the CAFO Rule classifies precipitation-related discharges as agricultural stormwater only where CAFOs have otherwise applied “manure, litter or process wastewater . . . in accordance with site specific nutrient management practices that ensure appropriate agricultural utilization.” 40 C.F.R. § 122.23(e) (emphasis added). Thus, even the CAFO Rule’s application of the agricultural stormwater exemption is expressly tethered to agricultural endeavors.  We note, moreover, that while the EPA had previously classified CAFO discharges as industrial, rather than agricultural, the Agency has here adequately justified that change on the ground that “[w]hen manure or process wastewater is applied in accordance with practices designed to ensure appropriate agricultural utilization of nutrients, it... fulfills an important agricultural purpose, namely the fertilization of crops...” Preamble to the Final Rule at 7197. Cf. Motor Vehicle Manufacturers’ Association of the United States, Inc. v. State Farm Mutual Automobile Insurance Company, 463 U.S. 29, 42 (1983) (where an agency has changed course it is “obligated to supply a reasoned analysis for the change.”). Because the EPA also put the public on notice of the substantive change, see Proposed Rule at 3029-32, it has complied with all applicable procedural requirements. Accordingly, for all these reasons, we reject the Environmental Petitioners’ challenge to the CAFO Rule’s exemption for agricultural stormwater discharges because we believe that the exemption is premised on a permissible construction of the Act. 2. Regulation of “Uncollected” Discharges The Farm Petitioners contend that the CAFO Rule violates the Clean Water Act because it regulates “uncollected” discharges from land areas under the control of a CAFO; in effect, the Farm Petitioners claim that runoff from land application areas, unless “collected” or “channelized” at the land application area itself, does not constitute a point source discharge. We reject this claim because, in our view, regardless of whether or not runoff is collected at the land application area, itself, any discharge from a land area under the control of a CAFO is a point source discharge subject to regulation because it is a discharge from a CAFO. To evaluate the Farm Petitioners’ claim we turn, once again, to the statutory definition of point source. The term “point source” is defined to mean, in relevant part, “any discernible, confined and discrete conveyance, including but not limited to any pipe, ditch, channel, tunnel, conduit, well, discrete fissure, container, rolling stock, concentrated animal feeding operation, or vessel or other floating craft, from which pollutants are or may be discharged. 33 U.S.C. § 1362(14) (emphasis added). Given that the Act expressly defines “point source” to include concentrated animal feeding operations, the Farm Petitioners can prevail on their challenge only if we find that the Act prohibits classifying a land application discharge as a discharge “from” a CAFO. We believe, however, that the Act not only permits, but demands, that land application discharges be construed as discharges “from” a CAFO to the extent that they are not otherwise agricultural stormwater. ... For the foregoing reasons, the petitions are granted in part and denied in part. We hereby vacate those provisions of the CAFO Rule that: (1) allow permitting authorities to issue permits without reviewing the terms of the nutrient management plans; (2) allow permitting authorities to issue permits that do not include the terms of the nutrient management plans and that do not provide for adequate public participation; and (3) require CAFOs to apply for NPDES permits or otherwise demonstrate that they have no potential to discharge. We also remand other aspects of the CAFO Rule to the EPA for further clarification and analysis. Specifically, we direct the EPA to: (1) definitively select a BCT standard for pathogen reduction; and (2) clarify – via a process that adequately involves the public – the statutory and evidentiary basis for allowing Subpart D CAFO’s to comply with the new source performance standard by either: (a) designing, constructing, operating and maintaining production areas that could contain all manure, litter and process wastewater including the runoff and the direct precipitation from a 100-year, 24-hour rainfall event; or (b) complying with alternative performance standards that allow production area discharges, so long as such discharges are accompanied by an equivalent or greater reduction in the quantity of pollutants released to other media. Additionally, we direct the EPA to clarify the statutory and evidentiary basis for failing to promulgate water quality based effluent limitations for discharges other than agricultural stormwater discharges, as that term is defined in 40 C.F.R. § 122.23(e), and also direct the EPA to clarify whether states may develop water quality based effluent limitations on their own. We uphold the CAFO Rule in all other respects. [Important Note: It is highly recommended that the 65-page ruling be read in its entirety.]  http://www.ca2.uscourts.gov:81/isysnative/RDpcT3BpbnNcT1BOXDAzLTQ0NzBfb3BuLnBkZg ==/03-4470_opn.pdf