Petition for Writ of Certiorari — Southview Farm v. Concerned Area Residents for the Environment

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94131 6 JAN 3 1 1995

No. 94-

OFFICE OF THE CLERK

Jn The

Supreme Court of the United States

OCTOBER TERM, 1994

SOUTHVIEW FARM AND RICHARD H. POPP,

Petitioners,

Vv.

CONCERNED AREA RESIDENTS FOR

THE ENVIRONMENT, et al. , Respondents

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Second Circuit

PETITION FOR A WRIT OF CERTIORARI

JOHN W. CLARKE TIMOTHY S. BISHOP

Harris Beach & Wilcox Counsel of Record

130 East Main Street MICHAEL F. ROSENBLUM

Rochester, New York 14604 JEFFREY W. SARLES

Mayer, Brown & Platt

190 South LaSalle Street

Chicago, Illinois 60603

(312) 782-0600

Counsel for Petitioner

49.

QUESTIONS PRESENTED

1. Whether a dairy farm that uses its animal manure to

fertilize its feed crop fields is a “concentrated animal feeding

operation” and thus a point source subject to the permit

requirements of the Clean Water Act.

2. Whether liquid manure washed off farm fieius by a

rainstorm is an “agricultural stormwater discharge” exempt

from the Clean Water Act’s definition of point source.

3. Whether manure-spreading equipment or a

depression in a farm field, neither of which directly dis-

charges pollutants into navigable waters, is a point source

subject to the permit requirements of the Clean Water Act.

RULE 29.1 STATEMENT AND

PARTIES TO THE PROCEEDING

Petitioner Southview Farm has no parent or non-wholly

owned subsidiary corporations.

In addition to the party named as respondent in the

caption, the following persons were plaintiffs-appellants

below and are respondents here: Philip Karcheski and

Kathleen Karcheski, individually and as parents and legal

guardians of Brian Karcheski and Robyn Karcheski, infants;

Lois E. Link; Daniel L. Wilson; William A. Fagan; Betty C.

Fagan; Jeffrey Ferris and Linda Ferris, individually and as

parents and legal guardians of Chad J. Ferris, Stacey P.

Ferris, and Shawn W. Ferris; and Kirk Schroeder,

individually and as parent and legal guardian of Stacy L.

Schroeder, Kirk Bly and Vickie Bly.

ili

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED .........-.--::: i

RULE 29.1 STATEMENT AND PARTIES

TO THE PROCEEDING .......-..eeeeee ii

ok 8 fo. a a eae 1

ee a a 1

STATUTORY PROVISIONS INVOLVED ....... 2

EE eae ee 2

A. The Statutory Framework ...........- 4

B. Facteal Background ........-.--+--:: 6

C. The District Court’s Decision .......... 6

D. The Court of Appeals’ Decision ........ 7

REASONS FOR GRANTING THE PETITION .... 8

I. THE SECOND CIRCUIT’S DECISION

IMPERMISSIBLY OVERRODE CON-

GRESS’ DETERMINATION TO HAVE

THE STATES—NOT THE FEDERAL

GOVERNMENT—REGULATE

NONPOINT SOURCES OF POLLUTION .. 9

TABLE OF CONTENTS—Continued

A. Farms Like Southview Are Not Con-

centrated Animal Feeding Operations

And Are Excluded From _ The

Definition Of A Point Source .......

B. Congress Expressly Exempted

Agricultural Stormwater Discharges

From The Definition Of Point Source

C. Neither a Depression In A Southview

Field Nor Its Manure Spreading

Vehicles Were Point Sources Because

Neither Discharged Pollutants Into

POE WHI sn: 04:4 > 6 ee oho oc

D. Sections 208 And 319 Of The Clean

Water Act Assign Regulation Of

Nonpoint Sources Of Pollution To The

WE a 6 ae bo oe oe ee ee eS

II. THE COURT OF APPEALS’ DECISION

WILL RENDER MANURE

FERTILIZATION UNECONOMICAL

AND DELIVER A DEVASTATING

BLOW TO ALREADY BELEAGUERED

FARMERS AND RANCHERS .........

fet |. SES PERCE Se eee ee ee ee

TABLE OF AUTHORITIES

Page

Arkansas v. Oklahoma,

ae SS ov 6 Ri WEA Ew EE 9

Blockburger v. United States,

SG Si EE a> ao 6 oa aes oh

E.I. du Pont de Nemours and Co. v. Train,

Se a ee eS wn ao ee A eee 15

EPA v. State Water Resources Control Bd.,

eo gt Gs eee er ee err 15

Farmegg Prods., Inc. v. Humboldt County,

190 N.W.2d 454 (Iowa 1971) ............ 12

Kelley v. EPA,

5 Pe tI GG... Ge. Bn a eos 23

Middlesex County Sewerage Auth. v.

National Sea Clammers Ass'n, 453

Se 8 ec a ee ee ee eee 11

National Resources Defense Council v.

Train, 396 F. Supp. 1393 (D.D.C. 1975),

aff'd sub nom. National Resources

Defense Council v. Costle, 568 F.2d

Se a a a oe ae ee ee ok he 10

PUD No. 1 of Jefferson County v.

Washington Dept. of Ecology,

36S. GR. PC ke eee eee ee ees 19

TABLE OF AUTHORITIES—Continued

Page

United States vy. Plaza Heaith Labs.,

Inc., 3 F.30 G43 (24 Cir. 1993) ......... 10, 18

United States v. Standard Oil,

Oe ee rere eee ee 4

West Lynn Creamery, Inc. v. Healy,

7 See FB ee 24

Wisconsin Public Intervenor v. Mortier,

ot me 2 re re rr 22

Statutes and Regulations:

es EE 6 sb ss o's 5 68 oe eb eee 22

i: MUL «so 6+ 8 aes +4 0 ae ee 2,4

eee EE cab ec eevee arcane 4,9, 11, 20

SEER io 0.0 0.0 06% 4% 4 4,6

ee as SU 6 ko ee vO ee ee 9, 11, 20

Pe a SED ve Nd 8d oS 4,9

cc Bie Some 2 : Sr ; ... 4,9, 10, 11

et Ss ES rere re ee 16

ef SR & . rr ear ae 5, 13, 14

vii

TABLE OF AUTHORITIES—Continued

Page

kf Ree a ogee co rr es 5

Le A Oe Yt Se er ere ae ia

Fe. eee 5, 14, 16

Water Quality Act of 1987, Pub. L.

ee Se Fe <b 68-6 8 we eee 16

Miscellaneous:

Davidson, Thinking About Nonpoint

Sources of Water Pollution and

South Dakota Agriculture, 34

S.D. L. Rev. 20, 21 (1988/1989) ..... 16, 17, 20

Fentress, Nonpoint Source Pollution,

Groundwater, and the 1987 Water Quality

Act: Section 208 Revisited?, 19 Envtl.

ig MS he rae a SS es 20

Gould, Agriculture, Nonpoint Source

Pollution, and Federal Law, 23 U.C.

Se a Se ED os 0k ss ek we ee 12, 19

Hamilton, Feeding Our Future: Six

Philosophical Issues Shaping

Agricultural Law, 72 Neb. L. Rev. 210

6 I Parry rain se! goers era ane ance 23

Vill

TABLE OF AUTHORITIES—Continued

Page

Letson, Point/Nonpoint Source Pollution

Reduction Trading: An Interpretive

Survey, 32 Nat. Resources J. 219 (1992) ...... 21

Noble & Looney, The Emerging Legal

Framework for Animal Agricultural Waste

Management in Arkansas, 47 Ark. L. Rev.

SEP E, @ ha ek ee eae a a ees 21

Pins, 25% Quit Farming in 1980's,

Des Moines Reg., May 22, 1992, at 1A ...... 24

S. Rep. No. 370, 95th Cong., Ist Sess.,

reprinted in 1977 U.S.C.C.A.N. 4326 ....... 9

S. Rep. No. 414, 92d Cong., Ist Sess.,

reprinted in 1972 U.S.C.C.A.N. 3668 .. 10, 12, 20

Sivas, Groundwater Pollution from

Agricultural Activities: Policies for

Protection, 7 Stan. Envtl. L.J. 117

eG oe hw rae cee ee as YD 10, 21, 23

U.S. EPA, Office of Water, Managing

Nonpoint Source Pollution: Final

Report to Congress on Section 319

of the Clean Water Act (1992) ....... 12, 20, 21

U.S. EPA, Office of Water, Nonpoint

Spee Gees CAG nc kK ce ek ewe etwas a

U.S. EPA, Office of Water, Nonpoint

Source Solutions (1989) ...........06.6. 21, 24

ta ptigetac te. oe een:

SiON a Op Fi a ile set ee

In The

Supreme Court of the Gnited States

OCTOBER TERM, 1994

No. 94-

SOUTHVIEW FARM AND RICHARD H. POPP,

Petitioners,

Vv.

CONCERNED AREA RESIDENTS FOR

THE ENVIRONMENT, et al., Respondents.

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Second Circuit

PETITION FOR A WRIT OF CERTIORARI

OPINIONS BELOW

The opinion of the court of appeals (App., infra, 1a-20a)

is reported at 34 F.3d 114. The opinion of the district court

(App., infra, 23a-54a) is reported at 834 F. Supp. 1422.

JURISDICTION

The judgment of the court of appeals was entered on

September 2, 1994, and a timely petition for rehearing was

denied on November 3, 1994. The jurisdiction of this court

is invoked under 28 U.S.C. § 1254(1).

STATUTORY PROVISIONS INVOLVED

The statutory and regulatory provisions relevant to this

case are set forth at App. 55a-57a, infra.

STATEMENT

This case involves a judicial override of federal

legislation exempting commonplace agricultural activities

from the permit requirements of the Clean Water Act

(“CWA”), 33 U.S.C. § 1251 et seq. A jury found that

petitioner Southview Farm (“Southview”) had violated the

CWA by failing to obtain a permit before fertilizing its feed

crops with liquid manure that eventually found its way into

navigable waters. The district court thereafter granted

Southview judgment as a matter of law, holding that

plaintiffs had failed to show that the discharges in question

emanated from a point source and thus required a permit

under the CWA. First, the court ruled, Southview falls

outside the regulatory definition of a “concentrated animal

feeding operation” (“CAFO”)—the only type of agricultural

operation included by Congress within the definition of point

source—because it raises feed crops and therefore is covered

by the CWA exemption for large livestock farms that grow

crops or forage on any part of the farm facility. Second, a

number of the discharges in issue were “agricultural

stormwater discharges,” which Congress specifically

exempted from the definition of point source.

In an opinion written by Judge Oakes, the Second Circuit

reversed. The court of appeals construed the definition of a

CAFO so narrowly that a large dairy farm would have to

grow crops inside its cattle barns to qualify for the CWA

exemption for livestock operations that raise crops or forage,

effectively destroying that exemption. ‘The court also read

“agricultural stormwater discharges” to mean only pure

rainwater, thereby rendering Congress’ exemption

inapplicable to any agricultural stormwater, which invariably

includes other matter. Finally, the Second Circuit detected

indirect point sources at Southview in the form of manure

spreaders and a depression in a field. In reality, this is a

case in which a court of appeals, in a burst of environmental

zeal, decided that Congress was too soft on agricultural

pollution and re-wrote the law to satisfy its own preference

for broader federal regulation than Congress thought

desirable.

As we demonstrate below, Congress was well aware that

water pollution may emanate from agricultural nonpoint

sources. It nevertheless made a deliberate policy choice that

the states, rather than the federal government, should bear

primary responsibility for addressing such pollution.

Congress recognized that diffuse discharges of the type

alleged here are difficult and costly for the federal

government to regulate, requiring flexible and site-specific

oversight that local authorities are better able to administer,

and that American agriculture would be severely harmed by

imposition of the CWA’s permitting regime.

The Second Circuit’s revision of the CWA’s scheme of

regulation threatens American farmers with a new layer of

costly and burdensome federal regulation not intended by

Congress. If the court of appeals’ decision stands, farmers

will have to seek a federal permit before applying fertilizers,

including recycled animal wastes such as those used by

Southview, to their fields. They will also have to comply

with the manifold requirements associated with the CWA’s

permit program, designed to control industrial and

municipal—not agricultural—wastes. Added costs, in the

form of permit applications, compliance expenses, CWA

penalties, and legal fees, for common and necessary fertiliza-

tion performed on a routine basis by farmers throughout this

country, would further squeeze farmers’ already limited

profits and could in some circumstances render dairy and

livestock farming economically unviable.

A court may not, consistent with the constitutional

principle of separation of powers, reregulate an area that

Congress has chosen to deregulate. As this Court noted in

reviewing a prosecution under the Rivers and Harbors Act,

this country’s water pollution problems do not “warrant us

in manufacturing offenses where Congress has not acted.”

United States v. Standard Oil, 384 U.S. 224, 225 (1966).

This Court should grant certiorari to prevent a judicial

override of Congressional policymaking on issues of funda-

mental importance to this nation’s agricultural industry.

A. The Statutory Framework

A description of the facts in this case requires an initial

overview of the statutory framework. The Clean Water Act

Originated in the Federal Water Pollution Control

Amendments of 1972, 86 Stat. 816, codified as amended, 33

U.S.C. § 1251 et seq., which imposed effluent limitations on

point source discharges through a federally mandated and

supervised permit system, the National Pollution Discharge

Elimination System (“NPDES”). 86 Stat. at 883, codified as

amended, 33 U.S.C. § 1342. Section 208 addressed

nonpoint sources through a planning process that placed

primary responsibility on the states. 86 Stat. at 839, 33

U.S.C. § 1288. The statute was renamed the Clean Water

Act in 1977.

The CWA makes unlawful, absent a permit, “the

discharge of any pollutant.” 33 U.S.C. § 1311(a). A

“discharge” is “any addition of any pollutant to navigable

waters from any point source.” Jd., § 1362(12). A “point

source,” in turn, is defined to include “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.” Jd., § 1362(14). A

point source specifically “does not include agricultural

SO ait RS ss ak Cate te SERB ath aie) SB Gals

stormwater discharges and return flows from irrigated

agriculture.” Jbid.

A “concentrated animal feeding operation” or

CAFO—which is a particular type of point source—is not

defined in the statute. It is defined in the implementing

regulations as an animal feeding operation (“AFO”) that

meets the criteria of Appendix B, that is, contains more than

700 mature cattle. 40 C.F.R. § 122.23(b). An AFO, in

turn, is “a lot or facility * * * where * * *

(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.”

Id. at § 122.23(b)(1) (emphasis added). The Environmental

Protection Agency (“EPA”) has further specified that the

definition of a CAFO “does not include areas of the facility

where crops or forage crops are maintained throughout the

growing season.” 58 Fed. Reg. 7610, 7616 (1993).

The phrase “agricultural stormwater discharge” is not

defined in either the statute or regulations. “Stormwater,”

however, is defined in regulations governing industrial and

municipal discharges as “storm water runoff, snow melt

runoff, and surface runoff and drainage.” 40 C.F.R.

§ 122.26(b)(13). And the EPA recently defined stormwater,

in the course of explaining changes in CAFO permits, as

“runoff caused by rainfall, snowmelt, or drainage which

flows overland instead of percolation into the soils due to

saturation.” 58 Fed. Reg. 7610, 7614 (1993).

B. Factual Background

Petitioner Southview, which is managed by petitioner

Richard H. Popp, is a large dairy farm in Castile, in upstate

New York’s Wyoming County. It has approximately 1,290

milking cows and 900 calves and heifers, primarily housed

in barns. Southview grows food for its herd, including

alfalfa, clover, corn silage, and grasses, in fields that abut

the barns and that are an integral part of the farm and its

operations. Instead of relying exclusively on chemical

fertilizers, Southview recycles its own cow manure. After

the manure is filtered through a liquid/solid separator, the

liquids are stored in a lagoon. The liquid manure is then

pumped from the lagoon into tank spreaders or a spray pivot

system, which apply it directly onto Southview’s crop fields.

App., infra, 3a-4a.

Plaintiffs, an ad hoc group of local residents, brought a

citizen’s suit against Southview under the CWA. They

alleged that on occasion between 1989 and 1991 some of the

liquid manure applied to Southview’s fields had eventually

entered local waterways, in violation of CWA § 1311(a),

which requires a federal permit for “the discharge of any

pollutant.” After denials of defendants’ motions to dismiss

and for summary judgment, eleven alleged CWA violations

were submitted to a jury. The jury returned a verdict in

favor of plaintiffs on five of those, finding violations on July

12, 1989; July 13, 1989; August 22, 1989; September 26,

1990; and April 15, 1991.

C. The District Court’s Decision

The district court subsequently granted defendants

judgment as a matter of law on all five alleged CWA

violations. App., infra, 54a. The district court determined

that Southview did not violate the CWA because it was not

a point source of the alleged pollution. Because the CWA

applies only to discharges from a point source, the court

could not, as a matter of law, sustain the verdict.

AST Bt er tiie ng Sng? Ze Sai

With regard to the July 13 date, the court held that

Southview could not be liable because the alleged discharge

had not been from a point source but from “diffuse runoff,”

which is “not the sort of pollution that Congress intended to

be covered by the Act.” App., infra, 45a. As to the

September 26 and April 15 dates, the court found

overwhelming evidence that the manure had been washed off

Southview’s fields by heavy rains, making the occurrences

“agricultural stormwater discharges” exempted by Congress

from the definition of a point source in 1987. Jd. at 35a-

36a. Regarding the July 12 and August 22 dates, the district

court found insufficient evidence that there had been any

discharges at all, so that the jury’s finding was “sheer

surmise and conjecture.” Jd. at 28a.

Finally, the court held that Southview is not a CAFO

point source because it grows crops on its facility, taking it

out of the regulatory definition. App., infra, 36a n.6.

D. The Court of Appeals’ Decision

Reversing, the Second Circuit rested its conclusion that

all five discharges emanated from a point source on its

holding that Southview is a CAFO and not subject to any

agricultural exemption. App., infra, 20a. To begin with,

the court ruled that the regulatory exemption from the

definition of CAFO for a “lot” or “facility” on which crops

are grown did not apply here. It was able to reach this

conclusion only by defining “facility” extremely narrowly as

the barns in which the cattle were kept rather than as the

farm as a whole. The court thus held that the exemption

would apply only if Southview’s crops were grown “in” the

barns, rather than, as was the case here, “adjacent” to them.

Id. at 18a-20a.

In addition, the court of appeals held that the statutory

exemption for agricultural stormwater discharges did not

apply to the September 26 and April 15 occurrences, as the

district court had concluded, because “there can be no escape

from liability for agricultural pollution simply because it

occurs on rainy days.” App., infra, 13a. The court of

appeals also found that Southview failed a test—one of the

court’s own invention and not based on any statutory

language—according to which the exemption does not apply

if “sufficient quantities” of agricultural pollutants are present

in the stormwater runoff. Jd. at 15a.

Finally, overriding the district court’s contrary factual

determinations, the Second Circuit held that there was

sufficient circumstantial evidence to find that discharges

occurred on July 12 and August 22, and that the discharge on

July 13 did emanate from a point source—either a swale in

one of the fields or, alternatively, Southview’s manure

spreading vehicles. App., infra, 12a.

REASONS FOR GRANTING THE PETITION

This Court should grant certiorari to review the court of

appeals’ serious misconstruction of the term “point source”

in the CWA. In vastly expanding the reach of the CWA into

American agriculture, the court of appeals effectively over-

ruled Congress’ exemption of most agricultural activities,

including fertilization, from the definition of “point source”

and thus from the CWA’s burdensome federal permit

program. In so doing, it impermissibly departed from the

accepted and proper scope of statutory interpretation.

The issues presented in this petition are of critical

importance to the American agricultural industry. The court

of appeals’ ruling threatens to add a significant new layer of

regulatory costs and compliance requirements to the heavy

demands already imposed upon the beleaguered agricultural

sector. It imperils the livelihoods of farm and ranch families

who heretofore have reasonably understood that their

activities fall within Congress’ carefully crafted exemptions.

I. THE SECOND CIRCUIT’S DECISION IMPER-

MISSIBLY OVERRODE CONGRESS’ DETERMI-

NATION TO HAVE THE STATES—NOT THE

FEDERAL GOVERNMENT—REGULATE

NONPOINT SOURCES OF POLLUTION

The CWA embodies a dual regulatory system for

safeguarding the nation’s waters from pollution. It carefully

distinguishes between “point source” and “nonpoint source”

pollution. The former is restricted to pollution from a

“discernible, confined and discrete conveyance.” 33 U.S.C.

§ 1362(14). The latter is not defined, but the EPA has stated

that “nonpoint source pollution does not result from a

discharge at a specific, single location (such as a single pipe)

but generally results from land runoff, precipitation, atmo-

spheric deposition, or percolation.” U.S. EPA, Office of

Water, Nonpoint Source Guidance 3 (1987) (emphasis

added).

The CWA assigns oversight over pollution emanating

from point sources to the federal government and oversight

over pollution emanating from nonpoint sources to the states.

Thus, “[i]n 1972, the Congress made a clear and precise

distinction between point sources, which would be subject to

direct Federal regulation, and nonpoint sources, control of

which was specifically reserved to State and local

governments.” S. Rep. No. 370, 95th Cong., Ist Sess. 8

(1977), reprinted in 1977 U.S.C.C.A.N. 4326, 4334. The

federal government regulates discharges of pollutants from

point sources by mandating technology-based standards and

requiring those who discharge pollutants to obtain permits

issued pursuant to NPDES. 33 U.S.C. § 1342. CWA

sections 208 (33 U.S.C. § 1288) and 319 (id., § 1329) direct

the states to adopt measures to address nonpoint source

pollution, with the details of those measures to be developed

and administered by the states themselves. See Arkansas v.

Oklahoma, 112 S. Ct. 1046, 1054 (1992).

Congress has taken pains to ensure that most agricultural

activity is considered to be nonpoint source and hence is

subject primarily to state regulation.’ First, by defining

“point source” as “a discrete conveyance,” Congress

automatically excluded most agricultural contamination,

which “enter[s] the aquifer over a broad area, rather than

from a discrete point of discharge.” Sivas, Groundwater

Pollution from Agricultural Activities: Policies for Protection,

7 Stan. Envtl. LJ. 117, 128 (1987/1988). The Senate

Report to the 1972 amendments thus specifically listed as

nonpoint sources “[a]gricultural runoff, animal wastes, soil

erosion, fertilizers, pesticides and other farm Chemicals that

are a part of runoff.” S. Rep. No. 414, 92d Cong., Ist

Sess., reprinted in 1972 U.S.C.C.A.N. 3668, 3705.

Second, Congress has consistently exempted agricultural

livestock operations from the requirements imposed on point

sources, excepting only CAFOs. See 33 U.S.C. § 1362(14);

S. Rep. No. 414 at 3759 (supplemental views of Sen. Dole)

(“Most of the problems of agricultural pollution deal with

non-point sources * * *; a feedlot would be considered to be

a non-point source”).

Third, Congress reinforced agriculture’s special status by

amending the CWA’s definition of point source in 1977

specifically to exclude “return flows from irrigated

agriculture,” thereby overturning a contrary court ruling,

National Resources Defense Council v. T; rain, 396 F. Supp.

1393 (D.D.C. 1975), aff'd sub nom. National Resources

Defense Council v. Costle, 568 F.2d 1369 (D.C. Cir. 1977).

The 1977 amendments also added the Rural Clean Water

' The Second Circuit has previously recognized that point

sources are generally found in the context of industrial and

municipal—not agricultural—discharges. United States v. Plaza

Health Labs., Inc., 3 F.3d 643, 646-647 (2d Cir. 1993).

EE EE

Program, which offered financial incentives to control

agricultural nonpoint source pollution. 33 U.S.C. § 1288(j).

Fourth, Congress amended the definition of point source

yet again in 1987 to exempt agricultural—but not industrial

—stormwater discharges. See 33 U.S.C. § 1362(14). The

1987 amendments further manifested Congress’ commitment

to state regulation of nonpoint sources by adding section 319

to the CWA, 33 U.S.C. § 1329, which encourages states to

control nonpoint source pollution.? Together, these actions

demonstrate that Congress regards agriculture as a special

case under the CWA and as generally exempt from the

federal regulation of point sources. Cf. Middlesex County

Sewerage Auth. v. National Sea Clammers Ass n, 453 U.S.

1, 18 (1981) (construing sections of Clean Water Act by

analyzing its structure and legislative history; “courts are not

authorized to ignore this legislative judgment”).

The Second Circuit’s decision in this case transforms

Congress’ dual regulatory scheme into a monolithic program

of federal regulation. By construing the concept of a CAFO

so broadly that all large livestock operations become point

sources, and by effectively defining the “agricultural

stormwater discharges” exemption out of existence, the court

of appeals has engaged in the kind of “judicial legislation

under the guise of construction” (Blockburger v. United

States, 284 U.S. 299, 305 (1932)) against which our constitu-

tional scheme was designed as a bulwark.

* Significantly, every case outside the Second Circuit cited by

the court of appeals to support its position was decided before

Congress’ 1987 amendments.

A. Farms Like Southview Are Not Concentrated

Animal Feeding Operations And Are Excluded

From The Definition Of A Point Source

The Second Circuit’s reversal of the district court rests

in large measure on its determination that Southview is a

CAFO and therefore a point source. App., infra, 20a. It

could reach that conclusion only by so twisting the regulatory

definition of CAFO as to turm it inside out.’

The CWA’s definition of point source is, with one

exception, directed at industrial and municipal rather than

agricultural polluters. S. Rep. No. 414 at 3760; U.S. EPA,

Office of Water, Managing Nonpoint Source Pollution 144

(1992). Except for CAFOs, “most waier pollution generated

by agricultural activities is nonpoint source.” Gould,

Agriculture, Nonpoint Source Pollution, and Federal Law, 23

U.C. Davis L. Rev. 461, 474 (1990). The statute itself does

not define a “CAFO,” but the express language and the

Statutory scheme outlined above strongly suggest that

Congress did not intend to include conventional farms like

petitioner Southview, but only factory-like operations where

livestock are simply held for feeding and fattening prior to

Slaughter. Concentrated animal production without crop

activity has long been viewed as more industrial than

agricultural. See Farmegg Prods., Inc. v. Humboldt County,

> The Second Circuit’s error may have a simple explanation.

The question whether Southview is a CAFO was never subject to

adversary briefing in the court of appeals. That issue was raised

for the first and only time in an amicus brief filed by the United

States three working days before oral argument—well after all the

parties’ briefs had been submitted. The court of appeals denied

Southview’s motion for leave to file a supplemental brief in

response to the government’s new arguments. The court of

appeals therefore lacked the benefit of a full exchange of views, as

well as any references to the trial testimony and relevant exhibits,

before determining that Southview is a CAFO.

190 N.W.2d 454, 459 (Iowa 1971) (land used for poultry

production where no feed crops are grown is not for

“agricultural purposes”). Accordingly, the regulatory

definition of CAFO excludes lots and facilities that, in

addition to maintaining livestock, also grow crops, vegeta-

tion, forage growth, or post-harvest residues. 40 C.F.R

122.23(b).

That is the sole CAFO criterion at issue here. For

Southview to be a CAFO, crops or vegetation must not be

grown “over any portion of the lot or facility.” 40 C.F.R.

122.23(b). The use of the disjunctive “or” indicates that

“facility” means something different from, and obviously

broader than, “lot.” And the phrase “any portion of”

indisputably indicates that crop-growing need not be a major

activity to remove the facility from CAFO status. South-

view, it is uncontested, grows crops over a significant

portion—more than 1,100 acres—of its facility, in fields

abutting and surrounding the cattle barns. In consequence,

it is not a CAFO.

The court of appeals was able to overcome this stubborn

fact only by narrowing the broad term “facility” to mean

solely the barns in which the cattle are penned. Finding that

Southview grows crops on fields “adjacent” to those barns,

rather than “in” the barns, the court concluded that

Southview is a CAFO. App., infra, 18a-20a.* In the

court’s view, then, for a large livestock farm not to be a

CAFO and thus not a point source, it would have to grow

crops inside its barns!’ Congress could not possibly have

* Significantly, the term “adjacent” is not found in any of the

pertinent statutory or regulatory provisions.

* Another option might be to keep the cows at pasture with no

housing at all. But that is not practical for most of the year in cold

weather climates like upstate New York and most other dairy and

livestock regions. Moreover, modern dairy farms have largely

intended such an absurd qualification. The Second Circuit’s

extraordinarily crabbed construction would do irreparable

violence to Congress’ goal of leaving regulation of agricul-

tural pollution to the states. It would transform a narrow

window of direct federal regulation in the agricultural arena

into an enormous expansion of CWA liability reaching all

large dairy and livestock farms.

Furthermore, even EPA has acknowledged that the term

“facility” is much broader than the Second Circuit believed,

recently stating that “[t]he definition [of a CAFO] does not

include areas of the facility where crops or forage crops are

maintained throughout the growing season.” 58 Fed. Reg.

7610, 7616 (1993). This statement plainly assumes that the

term “facility” describes an entire farm, including crop-

growing areas. It also clarifies that the crop fields—the

direct source of the pollution alleged in this case—are not

CAFOs and thus cannot be point sources for CWA

purposes.° Moreover, EPA’s regulations allow its Director

to “designate any animal feeding operation as a concentrated

animal feeding operation upon determining that it is a

significant contributor of pollution.” 40 C.F.R.

§ 122.23(c)(1). The Director has not designated Southview

as a CAFO.

The court of appeals clearly was dissatisfied with the

regulatory definition of CAFO. But “[t]he question * * * is

abandoned pasturage because it cannot provide a sufficient volume

of adequate nutrients for milk production.

° The court of appeals’ ruling was based on wholly different

EPA regulations that define “feed lot” in the context of setting

forth effluent limitations for feed lots with NPDES permits. App,

infra, 18a; see 40 C.F.R. § 412.12. If anything, those regulations

merely illustrate the difference between the narrow concept of a

“feed lot” and the much broader concept of an agricultural

“facility.”

hed Stee? WAR CLRIE, BO nici ysis ais sil ie a wa ark a ee

not what a court thinks is generally appropriate to the

regulatory process; it is what Congress intended for these

regulations.” E.J. du Pont de Nemours and Co. v. Train,

430 U.S. 112, 138 (1977). The definition of CAFO in the

regulations is consistent with the very restricted opening

provided by Congress to bring agricultural enterprises within

the reach of the NPDES permit program. The Second

Circuit’s opinion failed to respect Congress’ creation of

broad exemptions to the CWA for agriculture, or even EPA’s

own regulations. See EPA v. State Water Resources Control

Bd., 426 U.S. 200 (1976) (court of appeals’ misreading of

Clean Water Act led it improperly to require federal facility

to obtain state permit).

B. Congress Expressly Exempted Agricultural

Stormwater Discharges From The Definition Of

Point Source

Overwhelming evidence supported the district court’s

ruling that the discharges of September 26 and April 15 were

agricultural stormwater discharges as a matter of law and

thus did not issue from a point source. The uncontroverted

testimony from witnesses was that manure from the South-

view fields had migrated off the property after rainstorms on

each of those dates. In addition, two reports prepared by the

New York State Department of Environmental Conservation,

admitted into evidence, stated that “heavy rain” “caused” the

manure to run off the property on each of those dates. App.,

infra, 30a.’ Thus, the district court could only conclude that

“[i]f this activity does not fall within the exception for

” The Second Circuit’s supposition that “the run-off was

primarily caused by the over-saturation of the fields rather than the

rain” (App., infra, 15a) ignored these reports of the local on-the-

scene officials and impermissibly substituted its own

unsubstantiated factfinding for the findings of the district court that

had heard all the evidence.

agricultural stormwater discharges, it is difficult to see what

would.” Jd. at 35a-36a.

Congress specifically exempted agricultural stormwater

discharges from the definition of point source in the Water

Quality Act of 1987, Pub. L. No. 100-4, 101 Stat. 7.

Although the legislative history provides no explanation of

the term, that undoubtedly reflects the lack of any need to

explain such piain language. “Agricultural stormwater

discharges” is a clear enough and broad enough description

to encompass any agricultural pollution picked up by

rainstorm runoff. Congress did not say “some” agricultural

stormwater discharges; it exempted all. The EPA understood

this when it prepared its implementing regulations (40

C.F.R. § 122.3), which state:

The following discharges do not require

permits: * * * (e) Any introduction of pollutants

from non point-source agricultural and silvicultural

activities, including storm water runoff from

orchards, cultivated crops, pastures, range lands, and

forest lands.

The runoff from Southview’s “cultivated crops” fits

within this exclusion. Furthermore, the EPA recently

Clarified the meaning of a stormwater discharge by

explaining that it is “runoff caused by rainfall * * * which

flows overland” rather than seeps into the soil (58 Fed. Reg.

7610, 7614 (1993))—an exact description of the occurrences

at Southview on September 26 and April 15. Unsurprisingly,

commentators agree that farm field runoff is not a point

source. E.g., Davidson, Thinking About Nonpoint Sources

of Water Pollution and South Dakota Agriculture, 34§.D. L.

Rev. 20, 21 (1988/1989) (“runoff from land” is a nonpoint

source).

Dissatisfied with Congress’ blanket exclusion of

agricultural stormwater runoff, the court of appeals

proceeded to subclassify runoffs and to hold some to be point

sources. It ruled that if “sufficient quantities” of manure

were present in the runoff, it “could not be classified as

‘stormwater.’” App., infra, 15a. Not only did the court fail

to identify how “sufficient” those quantities had to be, but it

nowhere even pretended to ground its “sufficient quantities”

test in the text of the statute or regulations. The Second

Circuit’s “sufficient quantities” test amounts to a judicial

device to rescind this unqualified Congressional exemption

and substitute a judge-made rule.®

The court of appeals ruled that “there can be no escape

from liability for agricultural pollution simply because it

occurs on rainy days.” App., infra, 13a. The fact is,

however, that Congress’ policy judgment was precisely to the

contrary—that agricultural wastes washed into navigable

waters on rainy days would not be subject to CWA liability.

See Davidson, supra, 34 S.D. L. Rev. at 36 (“the word

‘stormwater’ [in the 1987 amendment] describes all the

waters that routinely drain from farm fields”) (emphasis

added). Recognizing that rainwater cannot travel across

fertilized farm land without picking up some level of

pollutants, Congress authored the term “agricultural

stormwater discharges” to describe broadly such mixtures

and thereby remove any disincentive to fertilize. See App.,

infra, 34a (noting that it is “virtually impossible for rain

water to travel over the ground without picking up at least a

minimal amount of pollutants”). The position of the Second

* The court of appeals went on to urge that because al/

discharges eventually mix with precipitation runoff when they

reach the relevant navigable waters, Congress could not have

intended to exempt all such mixtures. App., infra, 14a. Here, the

court simply mistook the relevant locus of analysis. The issue is

whether the manure and stormwater mixed on the farm, forming

agricultural stormwater, and then “discharged” into navigable wa-

ters—not what occurred in the navigable waters.

Circuit, if allowed to stand, would effectively wipe the 1987

agricultural stormwater discharges amendment off the books.

This petition does not rest on a circuit split over this

question. In fact, the conflicting lower court opinions in this

case are the only ones to have construed Congress’s 1987

exemption of agricultural stormwater discharges from the

definition of point source. For that very reason, the Second

Circuit’s revision of that amendment now occupies the field

and threatens to cause severe disruption to farm and ranch

interests across the nation. This Court should grant certiorari

to dispel the confusion that results from that decision.

C. Neither a Depression In A Southview Field Nor

Its Manure-Spreading Vehicles Were Point

Sources Because Neither Discharged Pollutants

Into Navigable Waters

Judge Oakes, author of the Second Circuit opinion, has

previously recognized that agricultural runoff of the type at

issue here is nonpoint source pollution. See United States v.

Plaza Health Labs., Inc., 3 F.3d 643, 652 (2d Cir. 1993)

(Oakes, J., dissenting) (“Nonpoint source pollution is,

generally, runoff: * * * agricultural chemicals from farm-

lands, * * * other substances washed by rain, in diffuse

patterns, over the land and into navigable waters”). In this

case, however, the court located point sources all over South-

view’s crop fields. In particular, the court held that either a

swale in one of Southview’s fields or, “alternatively,” its

manure spreading vehicles, were point sources. App., infra,

10a. Neither were what Congress had in mind.

A swale is nothing more than a depression in the

ground—hardly the man-made _ discrete conveyance

contemplated in the statutory definition of point source. The

court’s own description illustrates that any gathering of

manure in the swale was much too remote from the alleged

discharge to be its source. According to the court, the

manure left the swale, found its way to a pipe under a

stonewall, then ran into a ditch, then ran into a stream, and

eventually made its way to the Genesee River. App., infra,

8a. As the district court correctly determined, this

meandering movement from “low spots” on the Southview

Farm took place “in too diffuse a manner” to constitute a

point source discharge. Jd. at 46a.

Even more indirect was the connection between

Southview’s manure-spreading equipment and the eventual

discharge. The equipment applied the manure to the fields.

Only later, through natural processes, did some of the

manure allegedly collect in the swale and begin its extended

journey. The involvement of the equipment was thus even

more remote from any eventual discharge than that of the

swale. Moreover, if, as all the authorities except the Second

Circuit agree, agricultural runoff is nonpoint source, then the

court’s conclusion must mean that the equipment was a point

source of nonpoint source runoff. The CWA’s permit

requirement applies, however, only to point sources of

discharges into navigable waters. Southview’s manure

spreading vehicles were out of the picture long before any

such discharges took place, and they cannot be sources of

liability.

D. Sections 208 And 319 Of The Clean Water Act

Assign Regulation Of Nonpoint Sources Of

Pollution To The States

The Second Circuit’s opinion disrupts a settled Con-

gressional design leaving regulation of nonpoint sources of

water pollution to the states. “[T]he Clean Water Act

establishes distinct roles for the Federal and State Govern-

ments.” PUD No. I of Jefferson County v. Washington

Dept. of Ecology, 114 S. Ct. 1900, 1905 (1994). In contrast

to the heavy federal involvement in regulation of point

sources through the NPDES permit program, “the federal

government leaves the control of non-point source pollution

largely to the states.” Gould, supra, 23 U.C. Davis L. Rev.

at 472. See also Fentress, Nonpoint Source Pollution,

Groundwater, and the 1987 Water Quality Act: Section 208

Revisited?, 19 Envtl. L. 807, 808 (1989) (CWA left

“regulation of nonpoint sources to the states”); Davidson,

supra, 34 S.D. L. Rev. at 44 (“Congress * * * has largely

deferred to the states” regarding nonpoint source

management). Congress deferred to the states primarily by

enacting CWA sections 208 and 319.

Congress enacted section 208 to create a “laboratory for

new institutional control mechanisms for vexing nonpoint

source problems.” S. Rep. No. 414, at 10. Section 208

directs state governors to identify water pollution problems,

select representatives to develop area-wide management

plans, and designate agencies to implement them. 33 U.S.C.

§ 1288. Although plans must be approved by the EPA,

federal involvement is designed to be minimal. Section 319

added a detailed nonpoint source management program to the

CWA in the Water Quality Act of 1987. It strengthened the

role of the states by requiring them to submit detailed reports

to the EPA on their assessments of and management plans

for controlling nonpoint source pollution. 33 U.S.C. 1329.

See U.S. EPA, Office of Water, Managing Nonpoint Source

Pollution (1992).

Congress specifically intended that agricultural runoff of

the type at issue here would be regulated by the states, not

by the federal NPDES program. The 1972 Senate Report,

explaining its definition of “point source,” stated that “[t]he

control of pollutants from runoff is applied pursuant to

section [208] and the authority resides in the State or other

local agency.” S$. Rep. No. 414, reprinted in 1972

U.S.C.C.A.N. at 3774. Indeed, section 208 specifically

requires the state-developed plans to address agriculturally

related nonpoint source pollution, including runoff from

manure disposal areas. 33 U.S.C. § 1288(b)(2)(F).

————eeEee

The EPA has itself recently indicated that runoff from

land application of manure does not implicate NPDES:

“While the program can move manure into a controlled

storage structure, no farmer is specifically required to

undertake further BMPs [Best Management Practices] when

the manure is taken out of storage. Therefore, the farmer

can encourage runoff of these wastes by applying them to

cropland at rates that exceed crop uptake.” U.S. EPA,

Office of Water, Managing Nonpoint Source Pollution,

supra, at 189. See also Noble & Looney, The Emerging

Legal Framework for Animal Agricultural Waste Management

in Arkansas, 47 Ark. L. Rev. 159, 171 (1994) (“Congress

and the EPA, at the national level, did not intend for the

NPDES program to extend to land application sites that are

a part of an agricultural operation”). The court of appeals’

decision undermines this widely held and widely relied upon

understanding.

Congress’ policy reasons for delegating to the states the

primary control over nonpoint source pollution, including

that from agriculture, are easily discerned. Point sources

“are end-of-the-pipe discharges that are easy to regulate”

under the NPDES permit program. U.S. EPA, Office of

Water, Nonpoint Source Solutions 4 (1989). Nonpoint

sources, however, “are harder to identify and control [and]

depend upon localized features such as land uses, climate,

and geology.” Letson, Point/Nonpoint Source Pollution

Reduction Trading: An Interpretive Survey, 32 Nat.

Resources J. 219, 220 (1992). Thus, the “site-specific

nature” of the problem renders local control more cost-

effective. Ibid. In addition, the technology-based federal

standards may be too inflexible to manage the diversity of

nonpoint source problems. Finally, because “agricultural

wastes are not concentrated in effluent pipes or exhaust

stacks,” to regulate them in the same manner as point source

discharges would be both “unenforceable” and “non-

sensical.” Sivas, supra, 7 Stan. Envtl. L.J. at i59. Thus,

there was good reason for Congress to allot control over

most agriculture-based pollution to the states. This division

of responsibilities also was consistent with the CWA’s

underlying policy “to recognize, preserve, and protect the

primary responsibilities and rights of States to prevent,

reduce, and eliminate pollution.” 33 U.S.C. § 101(b). See

Wisconsin Public Intervenor v. Mortier, 501 U.S. 597 (1991)

(regulation of pesticide spraying a matter of state, not

federal, law).

The court of appeals acknowledged the CWA’s

delegation to the states of control over nonpoint source

pollution, but it proceeded to ignore the CWA’s clear

mandate that state control applies to all nonpoint source

pollution, including manure runoff. By insisting that

Southview is a CAFO, and that the agricultural stormwater

runoff exemption had no application here, the Second Circuit

managed to throw into question this entire statutory scheme,

at least as applied to large dairy and other livestock farms.

Whether or not New York was doing an adequate job of

controlling manure runoff and other nonpoint source

pollution is not at issue here. What is at issue is the court of

appeals’ overreaching into the legislative domain. This

Court should intervene to return the regulation of non-point

sources to the states.

Il. THE COURT OF APPEALS’ DECISION WILL

RENDER MANURE FERTILIZATION UNECON-

OMICAL AND DELIVER A DEVASTATING BLOW

TO ALREADY BELEAGUERED FARMERS AND

RANCHERS

Few dairy farms today rely on pasturage to feed their

mature livestock. Modern farms like Southview recycle their

manure. They spray the liquid extract and spread the solids

on their crop fields in a program of organic fertilization.

Not only is this process economically efficient, but it reduces

evnironmental exposure to the deleterious effects of chemical

eT Te

| fertilizers. See Hamilton, Feeding Our Future: Six

Philosophical Issues Shaping Agricultural Law, 72 Neb. L.

Rev. 210, 239 (1993) (“agricultural practices which protect

the environment while preserving the profitability of farmers

[include] using animal wastes for fertilizer”). Fertilization

in this manner may also protect against contamination of

groundwater by seepage of consolidated animal wastes. See

Sivas, supra, 7 Stan. Envtl. L.J. at 126.

By transforming all large dairy farms into CAFOs and

thus into potential point sources of water pollution—then

compounding the problem by gutting the agricultural

stormwater exemption—the court of appeals’ decision will

likely force all large dairy and livestock farms to assume the

considerable costs associated with compliance with federal

regulation. Application fees, inspection mandates, potential

CWA fines and damages, legal fees, bureaucratic paperwork,

time lost to comply—all these costs will either make farming

less profitable and thus less desirable as a livelihood and

investment, or will drive up the prices charged consumers for

basic dairy foods like milk, butter, and cheese. The Second

Circuit’s ruling will not only increase the costs of farming,

but may also discourage farmers from recycling their animal

wastes. Moreover, the availability of agricultural credit,

already a significant problem, will worsen as lenders worry

about their own potential CWA liability. See Kelley v. EPA,

15 F.3d 1100, 1107 (D.C. Cir. 1994) (holding that lenders

may be held liable under CERCLA).

After all, there is nothing particularly unique about

Southview’s application of liquid manure to its crop fields as

opposed to similar activities performed on a daily basis all

over rural America. If Southview’s manure fertilization

violated the CWA, so do the endeavors of myriad other

farmers. The court of appeals’ decision is thus likely to

render modern farmers’ sensible utilization of agricultural

wastes economically unviable. At a minimum, it will make

farming a less desirable livelihood and further the already

considerable flight from the land. See West Lynn Creamery,

Inc. v. Healy, 114 S. Ct. 2205, 2221 (1994) (Rehnquist,

C.J., dissenting) (noting that “beleaguered dairy farmers” are

“beset by steady or declining prices and escalating costs”);

Pins, 25% Quit Farming in 1980’s, Des Moines Reg., May

22, 1992, at 1A.

Congress has determined that such routine agricultural

activities are not to be federally regulated in the same

manner as industrial and municipal enterprises. That

determination was the result of a host of complex policy

considerations—including the difficulty of federal oversight

of agriculture-based pollution, the superior capacity of the

States to devise balanced programs and to experiment with

alternative solutions, and the desirability of protecting

farmers and the agricultural sector of our society from costly

regulation. As the EPA has expressed it, the “diffuse”

character of nonpoint source discharges (like the runoff at

issue here) engenders “different problems” and requires

“different political science,” “different social science,” and

“different science.” U.S. EPA, Office of Water, Nonpoint

Source Solutions 4 (1989). This Court should grant certiora-

ri to ensure that this comprehensive federal policy is not

overthrown by a poorly considered decision that will have

nationwide impact.

CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted.

JOHN W. CLARKE TIMOTHY S. BISHOP

Harris Beach & Wilcox Counsel of Record

130 East Main Street MICHAEL F. ROSENBLUM

Rochester, New York 14604 JEFFREY W. SARLES

Mayer, Brown & Platt

190 South LaSalle Street

Chicago, Illinois 60603

(312) 782-0600

Counsel for Petitioner

FEBRUARY 1995

“

CONCERNED AREA RESIDENTS FOR’ THE

ENVIRONMENT; Philip Karcheski; Kathleen Karcheski,

Individually and as Parents and Legal Guardians of Brian

Karcheski and Robyn Karcheski, Infants; Lois E. Link;

Daniel L. Wilson; William A. Fagan; Betty C. Fagan;

Jeffrey Ferris; Linda Ferris, Individually and as Parents

and Legal Guardians of Chad J. Ferris, Stacey P. Ferris

and Shawn W. Ferris; Kirk Schroeder, Individually and

as Parent and Legal Guardian of Stacy L. Schroeder;

Kirk Bly and Vickie Bly, Plaintiffs-Appellants,

SOUTHVIEW FARM and Richard H. Popp, Defendants-

Appellees.

No. 1608, Docket 93-9229.

United States Court of Appeals,

Second Circuit

Argued May 16, 1994.

Decided Sept. 2, 1994.

Before: OAKES and MINER, Circuit Judges, and

CARTER, Senior District Judge.*

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),

The Honorable Robert L. Carter, Senior District Judge,

Southern District of New York, sitting by designation.

(“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 (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.

PR Bad MO 5 WaT Mates Lie, ee TNT ee CN eu a Mott TRENT a toe 9

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 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 a 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 South-

view 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 January 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.1.,” formerly judgment notwithstanding 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).

Ill. Standard of Review

The moving party bears a heavy burden to prevail on its

motion for judgment m.o.1. Fed.R.Civ.P. 50(b); Stubbs v.

Dudley, 849 F.2d 83, 85 (2d Cir. 1988), cert. denied, 489

U.S. 1034 (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.1., 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 anima!

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.1.

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 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 (Sth 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 (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 (1992); see also Sierra Club v. Abston Constr. Co. , 620

F.2d 41, 45-46 (Sth 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

10a

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

lla

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 leaving Southview

12a

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.1. 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., __

F.3d ___, 1994 WL 365538, at *5 (2d Cir. July 8, 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

13a

adjudicative facts.” See also Michalic v. Cleveland Tankers,

Inc., 364 U.S. 325, 330 (1960); Tyler v. Bethlehem Steel

Corp., 958 F.2d 1176, 1184 (2d Cir.), cert. denied, are

U.S. ___, 113 S.Ct. 82 (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-

l4a

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, 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

15a

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 i4, 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

Amendment 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

16a

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., Ist Sess. 139, reprinted in 1972

U.S.C.C.A.N. 3668 (“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(i4), 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

17a

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., Ist 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-

18a

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 penned; therefore, according to

the court, Southview does not meet the criteria of sub-

paragraph (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 tlie 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

19a

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(6). 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

20a

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.

2la

PETITION FOR REHEARING

UNITED STATES COURT OF APPEALS

Second Circuit

GEORGE LANGE Ill

Clerk

At a stated term of the United States Court of Appeals for

the Second Circuit, held at the United States Courthouse in

the City of New York, on the third day of November one

thousand nine hundred and ninety-four.

Concerned Area, et al

Plaintiffs-Appellants,

v Dkt No: 93-9229

Southview Farm, et al

Defendants-Appellees.

A petition for rehearing containing a suggestion that the

action be reheard in banc having been filed herein by the

appellees Southview Farm and Richard H. Popp.

Upon consideration by the panel that decided the appeal, it

is Ordered that said petition for rehearing is DENIED.

It is further noted that the suggestion for rehearing in banc

has been transmitted to the judges for the court in regular

active service and to any other judge that heard the appeal

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and that no such judge has requested that a vote be taken

thereon.

FOR THE COURT

GEORGE LANGE III, Clerk

23a

CONCERNED AREA RESIDENTS FOR THE

ENVIRONMENT, et al., Plaintiffs,

SOUTHVIEW FARM and Richard Popp, Defendants.

No. 91-CV-6031L.

United States District Court,

W.D. New York.

October 19, 1993.

DECISION AND ORDER

LARIMER, District Judge.

BACKGROUND.

This is a citizen suit under the Federal Water Pollution

Control Act, also known as the Clean Water Act (“CWA” or

“the Act”), 33 U.S.C. § 1251 et seq. Also originally

pleaded were several supplemental state claims including

negligence, nuisance and trespass. The relevant facts have

been set out in this Court’s prior decisions on defendants’

motions to dismiss and for summary judgment, entered on

August 29, 1991 and April 7, 1993 respectively. Familiarity

with those decisions is assumed.

On May 19, 1993, a jury returned in a verdict in the trial

of this action finding that defendants had violated the CWA

on five occasions, and that defendants had committed a

common law trespass against each plaintiff. The jury found

in favor of defendants on six other alleged CWA violations,

and it also found no cause of action on all of the negligence

and nuisance claims.

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The jury awarded damages on the trespass claims, but the

court’s determination of a remedy for the CWA claims is

contingent upon my resolution of these post-trial motions.

Defendants now move for judgment as a matter of law

under Fed.R.Civ.P. 50(b) on the CWA and trespass claims.

Defendants’ motion is granted on all of the CWA claims,

but otherwise denied.

1. Legal Standard

Defendants’ burden to prevail on a motion for judgment as

a matter of law following a jury verdict in plaintiffs’ favor is

a Strict one. 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). The court should grant the motion

“only when (1) 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 (2) there

is such an overwhelming amount of evidence in favor of the

movant that reasonable and fair minded men could not arrive

at a verdict against him.” Mattivi v. South African Marine

Corp., “Huguenot”, 618 F.2d 163, 167-68 (2d Cir. 1980).

If the evidence, viewed in the light most favorable to

plaintiffs, was sufficient to have allowed a reasonable juror

to arrive at a verdict for plaintiffs, the motion must be

denied. Konik v. Champlain Valley Physicians Hosp. , 733

F.2d 1007, 1013 (2d Cir. 1984), cert. denied, 469 U.S. 884,

105 S.Ct. 253, 83 L.Ed.2d 190 (1984).

In deciding the motion, the court must draw all reasonable

inferences, and resolve all questions of credibility, in

plaintiffs’ favor. Id. “[T]he trial court cannot assess the

weight of conflicting evidence, pass on the credibility of the

witnesses, or substitute its judgment for that of the jury.”

Mattivi, 618 F.2d at 167.

Despite the heavy burden placed on the moving party,

however, when it is clear that the evidence does not support

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the verdict, the motion must be granted. “It is error to deny

a judgment notwithstanding the verdict when it is clear that

the evidence and its inferences cannot reasonably support a

judgment in favor of the opposing party.” Erickson v. Pierce

County, 960 F.2d 801, 804 (9th Cir.), cert. denied, —__

U.S.__, 113 S.Ct. 815, 121 L.Ed.2d 687 (1992); see also

Shatkin v. McDonnell Douglas Corp. , 727 F.2d 202, 207 (2d

Cir. 1984) (district court erred in denying motion for

judgment n.o.v. in view of insufficiency of the evidence to

support plaintiff’s claim).

In addition, a mere scintilla of evidence will not suffice to

support a verdict. Meyers v. Ideal Basic Indus., Inc., 940

F.2d 1379, 1383 (10th Cir. 1991), cert. denied, fete, | *

___» 112 S.Ct. 935, 117 L.Ed.2d 106 (1992). “The jury’s

role as the finder of fact does not entitle it to return a verdict

based only on confusion, speculation or prejudice; its verdict

must be reasonably based on evidence presented at trial.”

Michelman v. Clark-Schwebel Fiber Glass Corp., 534 F.2d

1036, 1042 (2d Cir.), cert. denied, 429 U.S. 885, 97 S.Ct.

236, 50 L.Ed.2d 166 (1976). If, after viewing all the

evidence most favorably to plaintiffs, the court cannot say

that the jury could reasonably have returned the verdict in

their favor, it is the court’s duty to set the verdict aside. Jd.

2. July 12, 1989 and August 22, 1989 CWA Violations

The jury found that CWA violations occurred on five

dates: July 12, 1989; July 13, 1989; August 22, 1989;

September 26, 1990; and April 15, 1991. Defendants allege

that there is no evidence that the July 12, 1989 and August

22, 1989 discharges occurred at all.

Plaintiff Philip Karcheski testified at trial about the alleged

July 12 violation. He stated that while driving his vehicle on

a nearby road at dusk, he saw “tanks pulled by the tractors”

going into a certain field. Def.Ex. A at 4.' “At that point

' — References to defendants’ exhibits are to the exhibits attached

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[he] didn’t pay attention” to whether manure was being

discharged from the field. /d.

His curiosity aroused, Karcheski returned the next evening,

July 13, in the company of plaintiff Kirk Bly. Karcheski

stated that he saw “the same thing, and still manure trucks

were operating the lagoons—the tanker trucks.” Jd. at 5.

He then “went into the field, and the area was just kind of

saturated with kind of like liquid manure.” /d. Some of the

manure was exiting the property through a ditch. /d. at 6.

Bly also testified at trial. He stated that on July 12, while

riding on a road, he “noticed a field on the Wyant farm that

had received a large amount of—a large amount of liquid

manure.” Def.Ex. B at 6. He stopped his vehicle and

looked at the field and a “running light in the far corner of

the field” for several minutes, but he did not get out of his

vehicle to inspect the field. /d.

Bly also testified that when he went back to that spot on

July 13, first alone and then with Karcheski, what he saw

was “very similar to what [he] observed on the 12th.” /d.

at 8. Walking around with Karcheski, he saw “a slurry type

manure” flowing out of the field and eventually into a

stream. Id. at 9.

As to the August 22 violation, Karcheski testified that on

that date he saw “the tankers . . . coming down the road

again and entering the same area [as on July 12 and

13] ...” Def.Ex. A at 8. He stayed for about ten or

fifteen minutes, and did not see any liquid manure leaving

defendant’s property. /d.

Bly gave similar testimony. He said that in “the same

field, same area” as on July 12 and 13, he “noticed a heavy

application of manure had been applied again.” Def.Ex. B

to the July 1, 1993 affidavit of John W. Clarke, Esq., in support

of the motion sub judice (Court document # 63).

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at 11-12. He did not actually enter the field, and he did not

testify that he saw any discharges from the property.

In my view, this testimony is not sufficient to support the

jury’s finding that discharges occurred on July 12 and August

22. Neither Karcheski nor Bly stated that they actually saw

a discharge of manure from the property on either date, and

their testimony was not strong enough to support an

inference that violations occurred on those days simply

because they saw a discharge in the same area on July 13.

There are so many variables involved—the amount of manure

spread, the duration of the spreading, the physical condition

of the ground, etc.—that it would be speculation to infer

discharges on July 12 or August 22 based on the July 13

incident.

Even assuming that defendants were spreading manure in

the exact same manner and place on the 12th as on the 13th,

that alone does not warrant drawing the conclusion that a

discharge of pollutants into navigable waters occurred on the

12th merely because one allegedly occurred on the 13th. For

one thing, there was no evidence of how long defendants had

been spreading manure when Karcheski and Bly saw the tank

trucks on July 12. Both men said that they noticed manure-

spreading going on in the early evening of July 12. Neither

knew how long this activity had been going on at that point,

which would obviously have a bearing on the amount of

manure the field had received.’

Moreover, the conditions under which the manure was

spread on July 13 differed in one highly important respect

from the day before, precisely because defendants had spread

manure on the 12th. If defendants spread manure in the

same area on both days, then there must have already been

2 Karcheski stated only that he saw defendants’ trucks twice that

evening, and that the second time was “maybe an hour or so” after

the first. Def.Ex. A at 4.

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manure on the ground when they began spreading on the

13th. That would obviously make it more likely that the

ground would become saturated sooner and the manure

would spill out from the field.

Evidence from which the jury could have reasonably

inferred a discharge on August 22 is also lacking. Even

crediting Bly’s statement that the application of manure that

day was “heavy,” that simply does not warrant the

conclusion that some of the manure left the field and entered

navigable waters. Bly’s statement that the weather that day

was “dry,” Def. Ex. B at 12, further weakens such an

inference.

What remains as to both dates, then, is testimony that

manure was applied to defendants’ field, and that testimony

is insufficient to find a CWA violation.

I conclude that the jury’s finding of a discharge on July 12,

1989 and August 22, 1989 “was sheer surmise and

conjecture.” Mattivi, 618 F.2d at 167 (quoting Armstrong v.

Commerce Tankers Corp. , 423 F.2d 957, 960 (2d Cir.), cert.

denied, 400 U.S. 833, 91 S.Ct. 67, 27 L.Ed.2d 65 (1970)).

There was simply a “complete absence of substantial

evidence supporting the verdict” on this question, id. at 169,

and the verdict must therefore be set aside as to these two

CWA violations.

3. September 26, 1990 and April 15, 1991 CWA Violations

Defendants argue that the September 26, 1990 and April

15, 1991 discharges were “agricultural stormwater

discharges,” which are specifically excluded from the

definition of “point source,” 33 U.S.C. § 1362(14), and

hence from the coverage of the Act itself, since only point

source discharges of pollutants constitute violations of the

Act.

Sally Hunt, a non-party to this action, was called as a

witness by plaintiffs. She testified that on September 26,

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1990, she observed an application of liquid manure by

defendants on a field adjacent to her property. She said that

this application was heavier than most, and that the manure

“pooled in the corner of [defendants’] field right next to [her]

property.” Def.Ex. C at 4. She stated that later that day it

rained, and the manure “drizzled into the ditch and through

the drainage pipe.” Jd.

Bly testified that on September 26, as he was driving near

fields surrounding the Hunt residence, he “could see the

manure flowing, the tracks made by the equipment, flowing

off the end of the fields where there was severe erosion

{[sic].” Bly Tr., Apr. 30, 1993, at 16. He did not see any

tankers. He also noticed that there was discolored water

flowing through a ditch along the field. Jd. at 17.

As to the April 15, 1991 incident, Hunt testified that on

that date, defendants “had worked the field and worked all

the grass off up to the ditch. And so then they spread

manure, and it subsequently rained, and it washed into the

ditch.” Def.Ex. C at 8. When asked if she had personally

observed the manure being washed into the ditch, she

replied, “Not myself, but I know they spread it.” Jd.

Plaintiff Bly testified that April 15 was “a wet day” and

that a photograph he took that day depicted “water

flowing—water runoff flowing off the field towards the

fencepost.” Def.Ex. B at 38-39. Other photographs taken

that day showed a “close-up of the water run-off showing the

brown water, foam in the field,” a “stream in Letchworth

Park, several yards from the field, which the run-off was

coming from showing brown, yellow water and foam.” Jd.

at 39.

Plaintiff Karcheski also testified about his observations on

April 15. He stated that near the intersection of Middle

Reservation and Swyers Roads, he saw “a lot of manure

coming off the field through the areas where the banks had

fallen away and like, you know, tractors had come in and

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out, and they leave culverts or furrows and that.” He saw

“water and manure” in an adjacent ditch. Karcheski Tr.

Apr. 28, 1993 p. 20. He stated that “[t]he ground was wet,

but [he did]n’t recall it raining when [he] was there.” /d. p.

21.

In addition to this live testimony, two reports prepared by

the New York State Department of Environmental

Conservation (“DEC”) were admitted into evidence. The

first, which was prepared in response to a complaint by Hunt

to the DEC, stated that “Due to heavy rain in area about 2

PM on 9/26/90—Runoff from fields on north side of Swyers

Rd. cause[d] manure to run into road ditch. Drainage enters

Genesee River through Letchworth State Park property.”

Def.Ex. G.

The second report was written after an investigation of a

complaint by Bly on April 15, 1991. That report stated that

“Heavy rain caused manure to run off into streams through

park into Genesee River.” Def.Ex. G.

In my view, the evidence does not support the verdict as

to either of these two discharges. First—particularly

concerning the April 15 discharge—there was insufficient

evidence that any discharge occurred from a point source.

Bly’s testimony that he saw “water runoff flowing off the

field,” in fact, supports precisely the opposite view: that the

discharge on this date was simply disparate run-off caused by

rainfall. The DEC report was consistent with Bly’s

testimony, stating only that manure had run off into streams.

Hunt’s testimony about the April 15 incident was also

inadequate. Although she said that manure had “washed into

the ditch,” the basis for that statement is not apparent, since

Hunt then said that she had not “personally observe[d] it

being washed into the ditch,” but only that she “kn[e]w they

spread it” and she “kn[e]w there was no vegetation” on the

field. Def.Ex. C at 8.

3la

Karcheski’s testimony was unclear at best as to what

caused the alleged discharge. However, his statements that

the ground was wet and that there was water in the ditch

adjacent to the field, and that “the banks [we]re crumbling

down into the ditch,” Karcheski Tr. Apr. 28, 1993, p. 28,

taken together with Bly’s and Hunt’s testimony, indicates that

this was run-off rather than a point source discharge.’

There was virtually no evidence at all, then, that a point

source discharge occurred on April 15. Hunt had no

personal knowledge that a discharge occurred from a point

source, Karcheski’s testimony was inconclusive, and Bly’s

testimony actually supported defendants’ position.

The evidence concerning the September 26 discharge is of

a different nature, but no less problematic. Hunt did testify

that the manure had “pooled” near the edge of the field and,

when it rained, the manure “drizzled into the ditch and

through the drainage pipe.” The DEC report also indicated

that the manure had entered streams through a ditch.

There was some evidence, then, that the manure had

collected into a pool on defendants’ property and that it

entered navigable waters through a discrete conveyance, /.e.,

the ditch.

The inquiry does not end there, however, for in 1987

Congress amended the Act to exclude agricultural stormwater

discharges from the definition of “point source.” 33 U.S.C.

§ 1362(14). The question, therefore, is whether the

September 26 discharge fell within that exclusion.

Unfortunately, neither the Act itself, the regulations

promulgated by the Environmental Protection Agency

> In addition, even if Karcheski’s testimony would support an

inference that the April 15 discharge was not mere run-off, this

discharge fell within the statutory exception for agricultural

stormwater discharges, as discussed in detail infra.

32a

(“EPA”), the legislative history, nor the case law provides

much guidance as to the meaning of “agricultural stormwater

discharge.” The term is not defined in the Act or in any

regulations, although “storm water” is defined at 40 C.F.R.

§ 122.26(b)(13) as “storm water runoff, snow melt runoff,

and surface runoff and drainage.”

The legislative history is both sparse and unhelpful, stating

only the obvious: that the new language “amends Section

502(14), of the Act, by providing that Agricultural

Stormwater Discharges are not defined as a point source.”

Section-by-Section Analysis, 133 Cong.Rec.H 131 (Jan. 7,

1987), reprinted in 1987 U.S.C.C.A.N. 5, 41. Also, the

parties have not submitted, and the Court has not found, any

cases interpreting this exception.

Nevertheless, both common sense and what little authority

there is in this area dictate that the September 26 discharge

does fall within the exception. First, the fact that Congress

saw fit to add this language to § 1362(14) suggests that

Congress believed that, without an express exception,

agricultural stormwater discharges could be considered point-

source discharges. In other words, the amendment excepted

from the scope of the Act certain discharges which would

otherwise constitute point-source discharges.

That view is reinforced by certain other amendments

enacted in 1987 dealing with other, non-agricultural

stormwater discharges. For example, § 1342(1) was amended

to provide that permits are not required for discharges

through discrete conveyances of stormwater runoff associated

with certain types of industrial activity, so long as the water

is uncontaminated by contact with raw materials or certain

specified other types of materials. Presumably, contaminated

industrial stormwater discharges would continue to require

permits. Since non-point source discharges do not require

permits to begin with, this implies that Congress considered

discharges of industrial stormwater to be point-source

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discharges; it was merely exempting some of them from the

permit requirement.

With agricultural stormwater discharges, however,

Congress went even further, and excluded them completely

from the definition of point-source discharges. Agricultural

discharges, then, are not simply point-source discharges that

do not require a permit; they are not point-source discharges

at all, notwithstanding that they might occur through a

discrete conveyance.

The fact that Congress saw a need to amend the statute to

add a specific exception for agricultural stormwater

discharges also suggests that Congress was not concerned

simply with disparate, random run-off of rain water; that

type of run-off had already been generally held by the courts

not to constitute a point-source discharge. See, e.g., United

States v. Earth Sciences, Inc., 599 F.2d 368, 373 (10th Cir.

1979). If that had been Congress’ only concern, the

exception would have been unnecessary. It is a fundamental

rule of statutory construction that courts should avoid an

interpretation of a statute that renders any part of it

superfluous. State of Nevada v. Watkins, 939 F.2d 710, 715

(9th Cir. 1991).

It appears, therefore, that the exception was aimed at

collected or channelled storm water, i.e., storm water

discharges which would ordinarily constitute point-source

discharges. The fact that the discharge in this case came

from a “pool” or ditch, therefore, does not in itself take this

case out of the statutory exception created by Congress for

agricultural stormwater discharges.

Plaintiffs’ contention that “stormwater” means only run-off

which is completely unpolluted by contact with any

contaminants is not persuasive. Plaintiffs rely for that

assertion on a statement by the EPA in the preamble to a

Federal Register notice of certain regulations that “some

classes of nonstormwater discharges may typically contain

34a

only minimal amounts of pollutants.” Congress did not

intend that the term stormwater be used to describe any

discharge that has a de minimis amount of pollutants. 55

F.R. 47995 (Nov. 16, 1990). That statement, however, can

reasonably be read to mean only that the mere fact that a

discharge contains a de minimis amount of pollutants does

not necessarily mean that it should be treated as a stormwater

discharge. In other words, the stormwater or non-

stormwater character of the discharge is not determined by

the presence or amount of pollutants in the discharge.

Moreover, “storm water,” according to the EPA, means

“storm water runoff, snow melt runoff, and surface runoff

and drainage.” 40 C.F.R. § 122.26(b)(13). “Runoff” has

been defined by the Court of Appeals for the District of

Columbia Circuit as “wastewaters generated by rainfall that

drain over terrain into navigable waters, picking up pollutants

along the way.” Natural Resources Defense Council, Inc. v.

Costle, 568 F.2d 1369, 1377 (D.C. Cir. 1977). That

interpretation is almost self-evidently correct, as it seems

virtually impossible for rain water to travel over the ground

without picking up at least a minimal amount of pollutants.

To think of “stormwater” as including only “pure” rain

water unadulterated by any substances on the ground

whatsoever would render the agricultural stormwater

discharge exception practically meaningless.‘

The cases cited by plaintiffs in support of their

interpretation of this exception are distinguishable. Some of

the cases, such as Sierra Club v. Abston Constr. Co., 620

F.2d 41 (Sth Cir. 1980), and Residents Against Industrial

* — Title 33 U.S.C. § 1342(1) does speak of “uncontaminated”

industrial stormwater discharges, but that adjective is qualified in

that the reference is to stormwater uncontaminated by contact with

certain specific types of materials. Presumably, then, stormwater

“contaminated” by contact with materials other than those listed is

not covered by that section.

35a

Landfill Expansion v. Diversified Systems, Inc. , 804 F.Supp.

1036, 1039 (E.D.Tenn. 1992), did not involve agricultural

activities. Some, including Abston and United States v.

Oxford Royal Mushroom Products, 487 F.Supp. 852

(E.D.Pa. 1980), were decided before the 1987 CWA

amendments which created the exception for agricultural

stormwater discharges.

Plaintiffs maintain that a discharge, even if its most

immediate cause was rainfall, does not fall within the

exception if defendants’ activities (such as prior applications

of manure) contributed to the discharge. This argument,

however, confuses the issue of run-off-versus-point source

discharges with the issue of agricultural stormwater

discharges. The cases cited by plaintiffs (including my

summary judgment decision in this case) addressed the

question of when runoff has been sufficiently affected by

man to become a point source discharge. That is an entirely

different issue from whether a discharge comes within this

exception for agricultural stormwater discharges.

Plaintiffs also argue that to hold that the discharges in this

case were agricultural stormwater discharges would allow

defendants to escape liability under the Act by watching the

weather forecasts and applying manure just before a

rainstorm. Defendants’ liability, though, will not be made

limitless by my decision. For example, defendants cannot

simply dump a truckload of manure into a storm sewer or

ditch and claim that that is an agricultural stormwater

discharge, since in that situation the discharge would clearly

have been caused by defendants, not by the effects of natural

precipitation. In contrast to that scenario, the instant case

involves manure lawfully and legitimately applied to

defendants’ land in the court of agricultural activity, which,

as far as the proof showed, would have remained on their

land had it not been for a heavy rain.* If this activity does

* Although Bly did not testify that the discharge was caused by

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not fall within the exception for agricultural stormwater

discharges, it is difficult to see what would. This is not a

case like Carr v. Alta Verde Indus., Inc. , 931 F.2d 1055 (Sth

Cir. 1991), in which the defendants deliberately cut a

spillway out of the embankment of a wastewater holding

pond after the pond had become full due to heavy rains.°

The discharge here involved the natural movement of rain

water over the ground, albeit rain water which mixed with

manure before running off the field into a ditch. To hold

that a point source discharge exists when rain water flows

across a farm field and picks up or mixes with fertilizer,

however, would have far-reaching effects that I believe were

precisely what Congress wanted to avoid when it added this

exception for agricultural stormwater discharges.

It is evident that Congress had a definite purpose in mind

when it enacted this exception, and that purpose was clearly

to exempt certain farming activities from the reach of the

Clean Water Act, either because of the importance of those

rain, he apparently witnessed the discharge some time after the

manure had been spread, since he said that he saw no tankers in

the field at the time. His statement that water was flowing through

the ditch also suggests that he arrived after the rain had begun.

Thus, his observations, as far as they went, were consistent with

Hunt’s.

° It should also be noted that the farm in Carr was held to be a

“concentrated animal feeding operation,” which per se made it a

point source. 33 U.S.C. § 1362(14). The court in Carr,

therefore, was not faced with the question of whether the

discharges were agricultural stormwater discharges.

In the instant case, I declined to give an instruction on

concentrated animal feeding operations because the proof showed

that crops were sustained over a portion of Southview Farm, which

took it out of the definition of that term. 40 C.F.R. §

122.23(b)(1).

37a

activities to society, or because of the difficulty of regulating

them, or both. It is not the function of this court to decide

whether this exception is good or bad, or wise or unwise.

Rather, the court’s task is to apply the statute to the facts

before me, and having done so, I find that the only

reasonable conclusion is that the discharges here fall within

the exception.

I am aware that the jury was instructed that agricultural

stormwater discharges are not covered by the Act, and that

a jury verdict is not lightly to be set aside. When the facts

demand it, however, that is the duty of the court. In fairness

to the jury in this case, it should also be noted that (as the

preceding discussion should make plain) this is not a simple,

straightforward matter in which any layman can easily judge

the facts according to his common sense. The parameters of

this part of the Act are complex and largely uncharted. That

the jury’s verdict is insupportable, therefore, is probably less

the result of faulty reasoning on their part than a testament

to the exceedingly difficult task given them of trying to grasp

the subtleties of a labyrinthine statute such as the CWA based

solely on a jury charge, a task compounded by the fact that

this was merely one issue among many presented to them at

the end of the case.

In any event, in my view the evidence was such that no

reasonable juror could find that these discharges were not

excepted under the Act as agricultural stormwater discharges.

4. Point Source Discharge

Defendants also contend that plaintiffs did not prove that

any of the five alleged discharges occurred from a “point

source,” which is defined as “[a]ny discernible, confined,

and discrete conveyance . . . from which pollutants are or

may be discharged.” 33 U.S.C. § 1362(14). A discharge of

pollutants does not violate the Act unless it emanates from a

point source.

38a

My ruling on the July 12 and August 22, 1989 discharges

makes this issue moot as far as those two alleged violations

are concerned. There was insufficient evidence of any

discharges on those two days, from a point source or

otherwise. Likewise, I have already held that the September

26, 1990 and April 15, 1991 discharges were agricultural

stormwater discharges, and therefore were’ not point-source

discharges.

That leaves only one discharge, on July 13, 1989. As to

that event, Karcheski testified on direct examination as

follows:

Q. Did you observe any of the manure that was there

exiting the property?

A. In the ditch.

Q. All right.

A. We didn’t notice much on the hills, because it was

like—it wasn’t solid stuff. It was just running off, and it

was in the ditch, and Kirk [Bly] had come up from that

way and said he had been following it down the ditch.

Karcheski Tr. 4/28/93 at 8-9.

Describing his observations on July 13, Bly testified that

As I approached the southeast corner of the field, it was

evident that a lot of manure had been applied, and I was

Starting to walk through a slurry type manure that was

flowing under the fence through the ditches and the

field.... I followed this flow, this lava-like flow of

manure down into the park where it meets a small stream

and followed that stream even farther to where it meets

another stream.

Q. Where does that stream go to?

A. That stream flows approximately a quarter mile to the

Genesee River.

‘it

39a

Bly Tr. 4/30/93 at 9.

Bly also testified that

{m]anure was flowing off the hilly areas of the field and

down into the low spots under the fence, off the field... .

I continued along the woods in the park to the easterly side

of the field and witnessed another event similar to the one

on the southeast side, the manure flowing off at a low spot

in the field, a depression into another small stream . ea

Id. at 9-10. He stated that he followed the manure in the

stream “in [Letchworth] park several hundred yards.” Jd. at

10.

Defendants raised the point-source issue on their prior

motions to dismiss and for summary judgment. I denied

those motions on the ground that there were issues of fact

about whether a point-source discharge occurred. Plaintiffs

having presented their proof at trial, the question now

becomes whether the evidence is sufficient to find that the

July 13 discharge was from a point source.’

The Second Circuit recently decided a case which further

delineates the nuances of the term “point source.” In United

States v. Plaza health Labs., Inc., 3 F.3d 643 (2d Cir.

1993), a two-judge majority held that the district court in a

criminal CWA case had erred in ruling that a human being

could be a point source.

Although my prior decisions in this action dealt with the

point-source issue at some length, the Plaza Health decision

necessitates some further discussion of the subject, not only

" Rather that decide this issue after closure of the proof but

before the case went to the jury, following clear Second Circuit

directives, see Mattivi v. South African Marine Corp. “Huguenot”,

618 F.2d 163, 166 (2d Cir. 1980); Gratian v. General Dynamics,

587 F.2d 121 (2d Cir. 1978), I submitted the issues to the jury and

left the matters to be resolved on post-verdict Rule 50 motions.

40a

because it is the Second Circuit’s most recent pronouncement

on the question, but also because it modifies in some respects

the contours of the case law in this area.

In reaching its conclusion that a person cannot be a point

source, the Court of Appeals noted that the “Clean Water

Act generally targets industrial and municipal sources of

pollutants...” 3 F.3d at 646. The court stated that this

focus is evidenced in part by the many references in the Act

to “owners or operators” of point sources.

The court found further support for this view in the

legislative history of the CWA. As an example, the court

quoted a Senate report referring to the need to distinguish

control of runoff from control “where there are specific

confined conveyances, such as pipes...” Id. at 647

(quoting S.Rep. No. 92-414, reprinted in 1972

U.S.C.C.A.N. 3668, 3744) (alteration in original). The

court went on to quote the following comments of Senator

Robert Dole which were added to the report:

Most of the problems of agricultural pollution deal with

non-point sources. Very simply, a non-point source of

pollution is one that does not confine its polluting

discharges to one fairly specific outlet, such as a sewer

pipe, drainage ditch or a conduit; thus, a feedlot would be

considered to be a non-point source as would pesticides

and fertilizers.

The court concluded that the term “point source” as

applied to a human being was at best ambiguous, and that the

rule of lenity in criminal cases unees a reversal of the

defendant’s conviction.

In a dissenting opinion, Judge Oakes stated that the term

“point source” has been applied to a wide range of polluting

techniques, a common feature of which is that the pollutants

“reach the navigable waters by human effort or by leaking

from a clear point at which waste water was collected by

human effort.” 3 F.3d at 651.

4la

Judge Oakes also considered what constitutes a nonpoint

source discharge, which, he stated, “is, generally, runoff:

salt from roads, agricultural chemicals from farmlands, oil

from parking lots, and other substances washed by rain, in

diffuse patterns, over the land and into navigable waters.”

3 F.3d at 652. To attempt to control such discharges, he

stated, “could require radical changes in land use patterns

which Congress evidently was unwilling to mandate without

further study.” Jd.

Despite Judge Oakes’s dissent, it is clear from reading both

the majority and dissenting opinions in Plaza Health that the

entire court did agree on one thing: that a point source, as

the Act itself states, must be “discrete” and “confined.” In

fact, Judge Oakes opined that persons may be nonpoint

sources when they deposit waste in a diffuse manner, such as

when they “spread fertilizer on the ground or deposit oil in

a driveway, leaving it to be washed into nearby rivers.” 3

F.3d at 655 n.6. Similarly, in stating that the Act should be

held to cover “a company [which] chooses to use the nation’s

waters as a dumpsite for waste it has created and gathered in

a manageable place,” Judge Oakes added in a footnote, “I

mean to distinguish a company whose agricultural or other

activity leaves pollutants dispersed on the land, which may

then find their way into the nation’s waters.” 3 F.3d at 655

n. 7. It is evident that even Judge Oakes would not find

such an entity liable under the CWA.

Several points may be drawn from Plaza Health. First, the

court appears to have stepped back somewhat from the line

of cases which have taken an expansive view of “point

source.” It is true that the court distinguished some of those

cases on the ground that Plaza Health was a criminal case in

which the rule of lenity applied, but the court did not state

that it would have reached a different conclusion in a civil

case. Also, while it would be an exaggeration to say that the

court adopted a restrictive reading of “point source,” Plaza

Health did set some limits on the applicability of that term,

42a

even where the means of conveyance of a pollutant is

discrete, as a human being surely is.

Second, Plaza Health emphasized that the focus of the

CWA is on industrial and municipal polluters. Although the

court was primarily concerned with distinguishing individual

human polluters, it is also true that the Act is aimed more at

industrial and municipal polluters than at agricultural

polluters.* The Act specifically protects certain agricultural

activities, notably in the exceptions for irrigation return flows

and agricultural stormwater discharges.

The timing of the adoption of the irrigation exception is

also indicative of Congress’ concern with limiting the reach

of the Act in the field of agriculture. On November 16,

1977, the Court of Appeals for the District of Columbia

Circuit issued a decision holding that the EPA lacked

authority to exclude irrigation return flows from the

definition of “point source.” Natural Resources Defense

Council, Inc. v. Costle, 568 F.2d 1369 (D.C. Cir. 1977).

The amendment inserting the irrigation exception in the Act

was enacted by Congress the very next month. Pub.L. 95-

217, § 33(b), 91 Stat. 1577 (Dec. 27, 1977).

It is true, of course, that the Act does not provide a blanket

exception for all agricultural activities. In particular, it

includes a “concentrated animal feeding operation” within the

definition of “point source.” 33 U.S.C. § 1362(14). Yet

even this is equally exclusive as it is inclusive. Just as the

definition of “point source” effectively defines by exclusion

“nonpoint source,” i.e., every source of pollutants that is not

a point source,’ so the definition of “concentrated animal

* Judge Oakes was in agreement with the majority on this point

as well; he stated that “disposers of industrial and municipal waste

. . . Were the principal targets of the authors of the CWA... .”

3 F.3d at 655.

See Plaza Health, 3 F.3d at 652 n.2 (“The cases and

43a

feeding operation” as a lot or facility where more than 700

adult dairy cattle are kept for at least forty-five days in any

twelve-month period, and where crops are not grown over

any portion of the lot or facility, obviously leaves out many

types of cattle operations. 40 C.F.R. § 122.23(B)(1i), §

122.23(b)(3).

In drafting the CWA, then, Congress took pains to protect

certain types of agricultural activities from the controls

placed on point sources. In part, that appears to be a

product of Congress’ belief that most agricultural pollution

either comes from nonpoint sources, or poses problems of

management similar to those of nonpoint sources, which

simply do not lend themselves to the kind of control that the

CWA provides for with respect to industrial and municipal

point sources.’

It is also noteworthy that Congress enacted these

protections for agriculture despite, and quite likely because

of, the enormity of the problem posed by nonpoint source

pollution in general, and agricultural pollution in

particular.'' There can be no doubt that Congress has

commentators all seem to assume that all water pollution is either

point source pollution or nonpoint source pollution”) (Oakes, J.,

dissenting); George A. Gould, Agriculture, Nonpoint Source

Pollution, and Federal Law, 23 U.C. Davis L.Rev. 461, text

accompanying n. 83 (1990) (“The Act does not define ‘nonpoint

source,’ but theoretically this would include any water pollution

not caused by a point source”).

‘0 For example, in enacting the irrigation exception, Congress

appears to have shared the EPA’s concern that regulation of

irrigation return flows would place an ’extraordinary burden” on

the EPA, which would otherwise have faced the “spectre of

millions of applications for permits . . .” Natural Resources

Defense Council, 568 F.2d at 1377.

'! See 2 William H. Rodgers, Jr., Environmental Law: Air and

a44

become increasingly aware both of the extent of the nonpoint

source pollution problem, and of the role played by

agriculture in that problem.

As enacted in 1972, the CWA asked states to draft waste

treatment management plans, which would include

procedures for identifying nonpoint source pollution from

various activities, including agriculture. 33 U.S.C. §

1288(b)(2)(F). In 1977, Congress added the Rural Clean

Water Program, which sought to provide financial incentives

to farmers to implement “best Management practices” in

controlling nonpoint source pollution from their land. 33

U.S.C. § 1288(j). A 1985 Senate Report stated that it had

become “clear that nonpoint source pollution could no longer

be ignored. . . . As point sources are brought under control,

nonpoint pollution looms as a larger and larger problem.”

S.Rep. No. 50, 99th Cong., Ist Sess. 7-8 (1985) (quoted in

Robert D. Fentress, Comment, Nonpoint Source Pollution,

Groundwater, and the 1987 Water Quality Act: Section 208

Revisited?, 19 Envtl.L. 807, text accompanying n. 57

(1989)). In 1987, Congress passed the Water Quality Act,

which declared a “national policy that programs for the

control of nonpoint sources of pollution be developed and

implemented in an expeditious manner so as to enable the

goals of this Act to be met through the control of both point

and nonpoint sources of pollution.” 33 U.S.C. § 1251(a)(7).

The 1987 amendments set up additional state nonpoint source

management programs. 33 U.S.C. § 1329.

What is also apparent, however, is that Congress has been

reluctant to attempt outright federal control of agricultural

Water § 4.9 at 124-25 (1986) (noting estimates suggesting that

“nonpoint sources account for up to 99 percent of suspended solids

and usually between 50 to 90 percent of other conventional

pollutants”); Davidson, supra, text accompanying n. 10-11

(“[A]gricultural practices are the principal source of nonpoint

source pollution . . .”).

45a

and other nonpoint source pollution, preferring instead to

leave most of the responsibility in this area to the States, and

to use incentives rather than compulsion. Fentress, supra,

text accompanying n. 85 (noting more “carrots” than

“sticks” in provisions dealing with nonpoint sources).

Regarding the irrigation return flow exemption, one

commentator has even stated that “the drafters intended all

agricultural drainage to be excluded from regulation and, as

nonpoint sources, to be covered instead only by the informal

planning processes” provided for elsewhere in the Act. John

H. Davidson, Thinking About Nonpoint Sources of Water

Pollution and South Dakota Agriculture, 34 §.D.L.Rev. 20,

text accompanying n. 114 (1988/1989).

With these considerations in mind, I conclude that the

evidence in this case was not sufficient to establish that the

July 13 incident was a point source discharge. The

pollutants witnessed by Bly and Karcheski that day consisted

of diffuse runoff, and in my view this was not the sort of

pollution that Congress intended to be covered by the Act.

The linchpin of plaintiffs’ attempt to show that this was a

point source discharge is the reference by Bly and Karcheski

to a “ditch,” which is part of the Act’s definition of a point

source. 33 U.S.C. § 1362(14). The term “ditch” suggests

a discrete channel; the most apt definitions of “ditch” in

Webster’s Third New International Dictionary (1981 ed.) are

“a long narrow excavation dug in the earth,” “a trench for

conveying water for drainage or irrigation,” and “a natural

Or artificial usu. narrow watercourse or waterway.”

The record, however, shows that on July 13 the liquid

simply, and quite naturally, flowed to and through the lowest

areas of the field. Describing the “ditch,” Karcheski said

that “there’s kind of like two rises, and like a ditch... A

low area running in between. . .” Karcheski Tr. 4/28/93 at

6. Similarly, Bly stated that “Manure was flowing off the

hilly areas of the field and down into the low spots under the

fence, off the field.” Bly Tr. 4/30/93 at 9-10. He said that

46a

at another part of the same field, he saw “the manure

flowing off at a low spot in the field, a depression into

another small stream...” /d. at 10.

The photographs taken by Bly of the October 4, 1991

incident, which occurred at the same area as the July 13,

1989 event, and which was intended to establish that the

violation at that field was a continuing one, also do not

reveal any “ditch.” It appears only that there were some

gentle rises or slopes in the field, which of course means that

there were relatively low spots as well. Plaintiffs’ Ex. 77.

The testimony and photographs do indicate that the liquid

eventually flowed off the field into a small stream or rivulet.

This stream, however, appears to have been a natural

watercourse, which in turn led to other streams and

eventually into the Genesee River.

The question, therefore, is how the pollutants reached this

stream, and I find that they did so in too diffuse a manner to

create a point source discharge. The liquid manure was

spread on the field, some of it settled into low-lying areas,

and some eventually reached the stream.

The type of discharge lacks some of the essential elements

of a point source discharge. The pollutants in this case were

not “collected” by human activity; in fact, the opposite

occurred—the manure was dispersed over the ground.

Further, once the manure was spread, defendants made no

effort to collect or channel it. They did not pour it into a

pool or lagoon, for example, nor did the field have any sort

of berm or dike intended to make it a self-contained system.

This case therefore contrasts with Oxford Royal Mushroom

Products, 487 F.Supp. 852, in which the waste water was

supposed to remain within the field, but flowed out through

a break in the surrounding berm.

In short, there was no “system” here, no “physical

structures and instrumentalities that systematically act[ed] as

a means of conveying pollutants . . . to navigable

47a

waterways.” Plaza Health, 3 F.3d at 646. As one

commentator has observed, a “man-induced gathering

mechanism plainly is the essential characteristic of a point

source,” 5 Robert E. Beck, Waters and Water Rights, § 53.-

01(b)(3) at 216-17 (1991). Such a “mechanism” was absert

here.

Furthermore, I do not believe that the vehicles or other

devices used to spread the manure on the fields can be

considered point sources under these facts. For one thing,

they were not “gathering mechanisms” discharging pollutants

into navigable waters. Rather, they dispersed the fertilizer

onto the ground, some of which eventually reached

waterways.

This is not to say that polluters may always escape liability

under the Act merely by dumping pollutants on the ground.

There may be situations where the casual connection is so

immediate that the spreading mechanism could be deemed a

point source, as, for example, where the pollutant is poured

onto a dike at the edge of a river. In this case, though, the

connection between defendants’ activity and the alleged

discharge was too far-removed to consider the tractors or

spreaders as point sources. Virtually every manmade

pollutant at some time was gathered or collected somewhere,

and if a point source discharge could be found merely by

tracing the pollutants back to the time at which they were last

collected, practically every discharge would be a point source

discharge. For example, solid fertilizer sold in bags may

have been stored in a shed or truck before being spread on

the fields. Surely neither the shed nor the truck would be

considered a point source in this scenario.

I also believe that defendants’ actions here were the kind

of activity that Congress wanted to keep beyond the reach of

the Act. The manner in which the manure was spread, and

entered the waterways, presents many of the same

characteristics of agricultural pollution in general which

Congress has found inappropriate for point-source-based, or

48a

“end of pipe” controls. On any given day, farmers

throughout the country may be applying fertilizer to their

fields. Some chemicals from that fertilizer may end up in

navigable waters.'* Trying to trace those chemicals to

particular fields or applications, and determining whether the

discharges were due to an overapplication of fertilizer, to

irrigation return flows, or to stormwater runoff, would

impose immense problems.

In that sense, these manure applications were similar to

irrigation return flows. Speaking of the exemption for the

latter, one writer has stated that

[t]estimony in field hearings suggested that effluent limits

based on technological methods may not be appropriate for

control of return flow pollutants and the [Senate]

committee determined that these sources were practically

indistinguishable from any other agricultural runoff, which

may Or may not involve a similar discrete point of entry

into a watercourse. All such sources, regardless of the

manner in which the flow was applied to the agricultural

lands, and regardless of the discrete nature of the entry

point, are more appropriately treated under the

requirements of section 208(b)(2)(F).

Davidson, supra, text accompanying n. 115 (citing S.Rep.

No. 370, 95 Cont., 1st Sess. 35 (1977)).

In short, Congress believed that control of this kind of

pollution could best be accomplished not through

conventional technology-based systems, but through “radical

changes in land use patterns” which Congress has sought to

encourage, but which thus far it. has been “unwilling to

mandate without further study.” Plaza Health, 3 F.3d at

652-53 (Oakes, J., dissenting).

2 See Gould, supra, text accompanying n. 57 (citing evidence

that “half the nitrogen applied to fields does not reach the plants

but eniers streams and groundwater”).

49a

I reach this conclusion cognizant of my prior rulings that

there were sufficient questions of fact on this issue to

overcome defendants’ summary judgment and dismissal

motions. My decision today does not repudiate those prior

rulings. A denial of summary judgment in no way precludes

a subsequent entry of judgment as a matter of law after the

evidence has been heard at trial, see, e.g., Voutour v. Vitale,

761, F.2d 812, 822 (1st Cir. 1985), cert. denied, 474 U.S.

1100, 106 S.Ct. 879, 88 L.Ed.2d 916 (1986); Casts Co. v.

Gulf Ins. Co., 723 f.2d 1494, 1502 (10th Cir. 1983), and I

do not hold that under no set of facts could plaintiffs have

prevailed on this issue, or that a discharge of manure can

never be a point source discharge. This decision today is

based on the evidence actually presented at trial; that

evidence did not show a point source discharge.

In sum, I find that there was insufficient evidence to prove

that pollutants were discharged from a point source on July

13, 1989 from defendants’ fields, as required for a CWA

violation.

5. Trespass Claim

Defendants maintain that the trespass claim should be

dismissed because the testimony of plaintiffs’ experts was

insufficient to establish that defendants’ manure was

responsible for nitrates in plaintiffs’ wells. Specifically,

defendants contend that the expert testimony was too

speculative and was not supported by adequate facts, and that

the testimony of one expert, Dr. Jeffrey Chiarenzelli, was

impermissibly based on the opinion of the other expert, Dr.

Dale Baker.

The portions of the trial transcript submitted by defendants

in support of their motion reveal that defendants did not

object to the testimony that they now seek to challenge. See

Def.Ex. J,K. To the extent that defendants contend that the

testimony of these two men was not admissible, then, I find

that defendants waived this issue by failing to make a timely

50a

objection at trial. See United States v. Bilzerian, 926 F.2d

1285, 1294-95 (2d Cir.) (since expert’s general testimony

was not objected to at trial, admissibility issue was waived),

cert. denied, — U.S. —, 112 S.Ct. 63, 116 L.Ed.2d 39

(1991).

I also reject defendants’ argument that the expert testimony

was insufficient to support the jury verdict on the trespass

claim. Defendants are incorrect in their assertion that

plaintiffs’ experts’ opinions were based wholly on speculation

or conjecture unsupported by any facts or data.

Baker, for example, opined that Southview’s manure

application caused nitrates to enter ground water through a

process known as nitrification. He stated that this process is

caused by microorganisms, and occurs at temperatures above

fifty degrees. Def.Ex. J at 25. He also stated that these

nitrates will enter the ground water if there are no crops

present to take up the nitrates, and that because nitrates are

water soluble, “if water moves, nitrates move with it.

There’s no retardation of the nitrates by the soil.” Jd. at 26.

Chiarenzelli based his opinion that nitrates found in the

plaintiffs’ wells had come from Southview Farm on his

understanding of water flow and the topography of the area

in question. Def.Ex. K at 105-06. He explained how he

arrived at his opinion, and his testimony was not simply

unsupported speculation.

Defendants’ argument that Chiarenzelli’s opinion was

worthless because it was based on the opinions of Baker is

without merit. Baker stated that he believed that the nitrates

in the plaintiffs’ wells came from Southview because

Southview was “the only significant nitrate source up-

gradient of the plaintiffs’ wells.” Def. Ex. K at 105.

I note again that defendants made no objection to the

admission of this opinion on this ground at trial. They

therefore waived any argument that the testimony was

inadmissible. Bilzerian, 926 F.2d at 1294-95.

S5la

Second, the only authority offered by defendants for the

proposition that an expert cannot base an opinion on the

opinion of another expert, United States v. 102.93 Acres of

Land, 154 F.Supp. 258 (E.D.N.Y. 1957), aff’d, 257 F.2d

805 (2d Cir. 1958), is distinguishable in that the expert in

that case based his conclusions on “the advise and counsel of

others who were not called as witnesses.” Jd. at 261

(emphasis added). Thus, that case implicated a concern that

was not present in the instant case, namely, the inability of

the adverse party to cross-examine the expert whose opinions

underlie the witness’ opinion. Baker testified that Southview

was indeed a source of nitrates, and defendants had the

opportunity to, and did, cross-examine him concerning that

opinion. Cf. American Bearing Co. v. Litton Indus., Inc.,

540 F.Supp. 1163, 1172 (E.D. Pa. 1982) (finding

inadmissible economist’s testimony based on alleged out-of-

court statement of another expert who testified prior to

economist, since other expert made no such statement when

testifying, and defendant had no opportunity to cross-examine

him about it.)

Moreover, 102.93 Acres was decided prior to the adoption

of the Federal Rules of Evidence, which expressly permit an

expert to based an opinion even on otherwise inadmissible

evidence if that evidence is “of a type reasonably relied upon

by experts” in the same filed. Fed.R.Evid. 703. This rule

has been held to permit an expert in one field to base on

opinion in part on the opinions of other experts in other

fields. See United States v. 1,014.16 Acres of Land, 558

F.Supp. 1238 (W.D.Mo. 1983), (real estate appraiser could

consider opinions of forester and hydrologist in arriving at

estimate of property’s value, and forester could consider

hydrologist’s data to frame opinion on effect flooding would

have on foliage), aff'd, 739 F.2d 1371 (8th Cir. 1984).

This view is perfectly sensible. As the district court

observed in 1,014.16 Acres, “[a]n expert cannot be an expert

in all fields, and it is reasonable to expect that experts will

52a

rely on the opinions of experts in other fields as background

material for arriving at an opinion.” 558 F.Supp. at 1242.

The import of Chiarenzelli’s testimony, then, was merely

that if one accepted Baker’s opinion that nitrates from

Southview entered streams and ground water, those nitrates

would tend to be carried toward plaintiffs’ property. If the

jury did not credit Baker’s opinion that the water contained

nitrates, they simply would have been unconcerned with the

direction of the flow of the water. This was effectively no

different from having an expert given an opinion based on

hypothetical facts, on the expectation that the jury will find

those facts to exist in the actual case before them.

I am equally unpersuaded by defendants’ argument that the

experts were unable to state with certainty that there was a

causal connection between defendants’ activities and the

nitrates in plaintiffs’ wells. First, Baker did not need to

testify on that matter. He was called to testify about the

leaching of nitrates from manure into ground water, not

about the movement of that ground water from defendants’

to plaintiffs’ property.

Defendants’ argument that Baker’s opinion was “totally

speculative as evidenced by his statements that “it [nitrate]

probably does [leach into the groundwater] by the time fall

comes’...,” Def. Mem. at 24, takes Baker’s testimony out of

context. Baker made this statement in response to a question

whether “all of the nitrate that’s left in the soil ...

necessarily leach[es] into the ground water ...” Def.Ex. J at

77. He explained that when the weather turned cold in the

fall, nitrification would be less likely to occur, so that some

nitrates might remain in the soil. Merely because he did not

state to an absolute certainty that one hundred percent of the

nitrates present would have leached out of the soil by the end

of the growing season did not render speculative his opinion

that leaching did occur.

53a

Similarly, Chiarenzelli’s testimony was not merely

speculative about the existence of a connection between

nitrate contamination of plaintiffs’ wells and defendants’

activities at Southview Farm. At one point during cross-

examination, defense counsel asked him, “But you concluded

that it was highly likely [that there was a connection], even

though you could not establish a direct connection; isn’t that

correct?” Chiarenzelli responded, “Right, you can almost

never establish a direct connection.” Viewed in context,

Chiarenzelli’s testimony did not mean that he was simply

guessing about this matter; as defense counsel himself stated,

Chiarenzelli had “concluded that it was highly likely that

there was a causal connection.” Def. Ex. K at 135.

Furthermore, Chiarenzelli stated earlier in his testimony that

in his opinion, “the nitrates in the plaintiffs’ wells can only

be coming from fields owned, rented and operated by

Southview Farm.” /d. at 105. His statement about never

being able to establish a direct connection, then, could

reasonably be taken to mean only that it was virtually

impossible to prove the connection beyond all doubt, and that

it was necessary to infer the connection from circumstantial

evidence.

I conclude that Baker’s and Chiarenzelli’s testimony was

properly before the jury and that it gave the jury a sufficient

basis for their verdict on the trespass claim. Defendants

were free to explore further the foundation of the experts’

opinions through cross-examination, and to argue before the

jury at the close of the case that the experts were not worthy

of credence. See Daubert v. Merrell Dow Pharmaceuticals,

— U.S. —, —, 113 S.Ct. 2786, 2798, 125 L.Ed. 2d 469

(1993) (noting value of cross-examination and presentation of

contrary evidence as preferred means of challenging value of

expert testimony). Beyond that, the weight to be given the

experts’ opinions was for the jury to consider, and in my

view this evidence was sufficient to support the verdict

concerning the trespass claims.

54a

CONCLUSION

Based on the jury verdict rendered on May 19, 1993,

judgment is entered in favor of all the plaintiffs on their

trespass claim in the following amounts:

Karcheski Family $1000.00

Lois E. Link/

Daniel L. Wilson $1000.00

Fagan Family $1.00

Ferris Family $100.00

Kirk Schroeder $1000.00

Bly Family $1000.00

Defendants’ motion for judgment as a matter of law is

denied as to the trespass claim.

Based on the jury’s verdict, judgment is entered in favor of

defendants on plaintiffs’ nuisance and negligence claims, and

on plaintiffs’ Clean Water Act claims with respect to the

following dates: November 14, 1989; November 15, 1989:

November 16, 1989; February 19, 1991; October 18, 1991:

and July 23, 1992. ~

Defendants’ motion for judgment as a matter of law is

granted in part, and judgment is entered in favor of

defendants on all of plaintiffs’ remaining Clean Water Act

claims, specifically: July 12, 1989; July 13, 1989; August

22, 1989; September 26, 1990; and April 15, 1991.

IT IS SO ORDERED.

55a

RELEVANT STATUTORY

AND REGULATORY PROVISIONS

33 U.S.C. § 1311(a) provides:

Except as in compliance with this section and sections

1312, 1316, 1317, 1328, 1342, and 1344 of this title,

the discharge of any pollutant by any person shall be

unlawful.

33 U.S.C. § 1362(6) provides in relevant part:

The term “pollutant” means dredged spoil, solid

waste, incinerator residue, sewage, garbage, sewage

Sludge, munitions, chemical wastes, biological

materials, radioactive materials, heat, wrecked or

discarded equipment, rock, sand, cellar dirt and

industrial, municipal, and agricultural waste

discharged into water.

33 U.S.C. § 1362(12) provides in relevant part:

The term “discharge of a pollutant” and the term

“discharge of pollutants” each means (A) any addition

of any pollutant to navigable waters from any point

source.

33 U.S.C. § 1362(14) provides:

The term “point source” means 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. This term does not include agricultural

stormwater discharges and return flows from irrigated

agriculture.

56a

40 C.F.R. § 122.23 provides in relevant part:

(a) Perniit requirement. Concentrated animal feeding

operations are point sources subject to the NPDES

permit program.

(b) Definitions.

(1) “Animal feeding operation” means a lot or facility

(other than an aquatic animal production facility)

where the following conditions are met:

(i) Animals (other than aquatic 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.

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(3) “Concentrated animal feeding operation” means an

“animal feeding operation” which meets the criteria in

Appendix B of this part, or which the Director

designates under: paragraph (c) of this section.

feeding operations.

(1) The Director may designate any animal feeding

operation as a concentrated animal feeding operation

upon determining that it is a significant contributor of

pollution to the waters of the United States.

57a

40 C.F.R. § 122.3 provides in relevant part:

The following discharges do not require NPDES

permits:

* * =

(e) Any introduction of pollutants from non point-

source agricultural and silvicultural activities,

including storm water runoff from orchards, cultivated

Crops, pastures, range lands, and forest lands, but not

discharges from concentrated animal feeding

operations as defined in § 122.23, discharges from

concentrated aquatic animal production facilities as

defined in § 122.24, discharges to aquaculture projects

as defined in § 122.25, and discharges from

silvicultural point sources as defined in § 122.27.

(f) Return flows from irrigated agriculture.

40 C.F.R. § 122.26(13) provides:

Storm water means storm water runoff, snow melt

runoff, and surface runoff and drainage.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.