Amicus Curiae Brief — Southview Farm v. Concerned Area Residents for the Environment

No. 94-1316 FILE

IN THE

Supreme Court of the Unite

October Term, 1994

SOUTHVIEW FARM and RICHARD H. POPP.

Petitioners,

against

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

BRIEF OF THE JOINT LEGISLATIVE COMMISSION

ON THE DAIRY INDUSTRY, JOHN R. KUHL, CHAIRMAN AS

AMICUS CURIAE IN SUPPORT OF THE PETITION

THOMAS G. CONWAY

Counsel of Record

NYS Leetslative Commission on the Dairy Industry

NYS Senate Chamber

Albany, NY 12247

(518) 455-2983

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TABLE OF CONTENTS

Page

BAe CIE ALT ERICSEES oc ccccncer nescence i

INTEREST OF THE AMICUS CURIAE ...... 1

SUMMARY OF ARGUMENT .............. 2

1. Wrrn Respecr To Tue C.A.F.O. Issue, Tus

Court SHOULD SUMMARILY ReEveRSE AND

REMAND Because THe Court Or APPEALS

Vmeuaten FED. R. APP. P. 29 2... cence 4

II. THis Courr SHoutp Review THe Two

Constructions Or THe CLEAN Water Act

INVoLveD IN Tuts Case Because THEey WILL

Have Far ReacHiInGc AND OngrRous Impacts

On FARMERS THROUGHOUT THE NATION ..... 5

Il. ConGress NEVER INTENDED To REGULATE Run-

OFF FRoM THE Crop_anps AND FIELps OF

I I rn a ee ee 8

IV. Conoress Never INrenpED To’ TRreEaT

CONVENTIONAL Dairy Farms WuicH Grow

THEIR Own Feep AnD ForaGe Crops As

CONCENTRATED ANIMAL FEEDING OPERATIONS . 13

CMT Sin ke heeds dba Od ae beeen dees 16

ee re eer err a 17

i

TABLE OF AUTHORITIES

Page

Cases

Department of Revenue of Oregon v. ACF Industries,

510 US. , 114 S. Ct. 843, 849 (1994) ..... 10

Gade v. National Solid Wastes Mg't. Assn.,

505 U.S. ___, 112 $.Ct. 2374, 2383 (1992) .... 10

International Paper Co. v. Ouellette,

479 US. 461, 466 (1987) ow. ec cece 6

Massachusetts v. Morash,

PS Bilis SEP CEPUE cc cnc sc ceceesceces 10

New York v. United States,

505 U.S. __, 112 S.Ct. 2408, 2425 (1992) ..... 10

Pavelic & LeFlore v. Marvel Entertainment,

ee Ete SO BAP AMPD 5 cet a sees nancsers 10

Sorenson v. Secretary of Treasury,

oe Bk RG. 10

Concerned Area Residents for the Environment v.

Southview Farm, 34 F.3d (2d Cir. 1994) ... 2,4,5,7

il

United Savings Ass'n. v. Timbers of Inwood

Forest, Assoc., 484 U.S. 365, 371 (1988) ...... 10

United States v. Riverside Bayview Homes, Inc.

ek eg er ee ee ere 6

Woods v. Interstate Realty Co.,

Be? Gah DG OEE CUED sabe dcedncaweades 7

Statutes & Regulations

ee Be I ooh cs Gt oe bees ee ks 8, 9

ee Se ED Nk ob one daa ee es a eee 9, 11

Bs EE ss oo bo Seo eee kweetnshieeees 14

Fed. Water Pollution Control Amendments of 1972,

nT ita 8, 9

Fe Ses Bs I a eh eek eandn ous s i

Coun. Pubite Acts 91-312, S65 2c wc ce acsece 1

Maine Rev. Stat. Ann., tit. 7 §2954 ............ 1

ee ae, Bi Oe ee, es ge ban ce va ene sans 1

Deady. ee, PE 4k vv ok oh cea wha we eas 1

i Ses EE kc Ck Gk haw hase hooks wes os

Vermont Stat. Ann., tit. 6, Ch. 161 ............ 1

Ga ee Gs oo a ehh ORS ESSE SERED 6

Ss oo bbe ea oe een eww ewe 8, 14

og Se Ae Pee ee ee er eer ry y

ill

Congressional Documents

2 U.S. Code Cong. & Admin. News, 3718 (1972) .. 11

Control of Pollution from Animal Feedlots:

Hearings Before a Subcommittee of the

Committee on Government Operations of the

House of Representatives, 93rd Cong.,

rr er rey rere 12, 13

Control of Pollution from Animal Feedlots

and Reuse of Animal Wastes, H.R. Rep.

No. 93-1012, 93rd Cong., 2d. Sess. (1974) ..... 13

Hearings Before the Subcommittee on Air

and Water Pollution, 92d Cong.

SE ee 4 es oka aoe eo ee ees 13, 14

Hearings: Control of Pollution From Animal

Feedlots, H. Rep. Comm. on Government

Operations, 93rd Cong. Ist Sess., (1973) ...... 15

Senate Report No. 92-414 reprinted in

2 U.S. Code Cong. & Admin. News

bo Bi: eae e ry har er rE e 10, 11

iV

Miscellaneous

Methods and Practices for Controlling Water

Pollution from Agricultural Nonpoint Sources,

(U.S. Envir. Protection Agency, 1973)

(E.P.A. 430/9-73-015) ............. 6, 8, 11-15

Bath, D., et al., Dairy Cattle: Principles

Practices, Problems, Profits, (Lea &

Pe Sa TEE ctkbevaseernesescs 6, 14

Milk Production: February 1995, (U.S. Dept.

of Agriculture, National Agricultural

CK eee ree ee Te ee eee 6

Perceptions About E.P.A.'s Actions in the

Southview Farm Case, U.S. Envir. Protection

Agency, Office of Water, (Dec. 12, 1994) ....7,8

U.S. Environmental Protection Agency,

Common Environmental Terms, p. 9 (1974) .... 15

No. 94-1316

In The Supreme Court of the

United States

OcrosBer TERM, 1994

SOUTHVIEW FARM AND RICHARD H. POPP,

Petitioners,

¥,

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

BRIEF OF AMICUS CURIAE

JOINT LEGISLATIVE COMMISSION ON

THE DAIRY INDUSTRY - JOHN R. KUHL, CHAIRMAN

This brief is filed upon the written consent

of the parties pursuant to Supreme Court Rule 37.2.

INTEREST OF AMICUS CURIAE

The New York Joint Legislative Commission on the

Dairy Industry is a bipartisan and bicameral body

composed of five members of the state Senate and five

members of the Assembly. The Chairman, Senator John

R. ‘Kuhl, Jr., is also Chairman of the Senate Agriculture

Committee. The Commission maintains a research staff

of dairy industry experts and has conducted public

hearings and issued research reports on dairy industry

issues since it was established in 1986.

The Commission was established because the

Legislature found the existence of "severe economic

pressures which are affecting and which may affect the

industry and dairy farmers in particular." (1986 N.Y. Laws,

Chap. 50) Five other northeastern states made similar

findings of emergency economic conditions for dairy

farmers when the farm price of milk dropped sharply in

1991.

The amicus curiae holds a comprehensive statutory

mandate to investigate and analyze the economic,

environmental, marketing and regulatory pressures

affecting the dairy industry and to recommend policies

designed to maintain its economic vigor. The dairy

industry provides employment for 60,000 New York

citizens in the production, processing and distribution

‘Conn. Public Acts 91-312, §45; Mass. Gen. L., Ch.

94A, $10 (Executive finding); Vermont Stat. Ann., tit. 6,

Ch. 161; Maine Rev. Stat. Ann., tit. 7 §2954; N.J. Stat.

Ann., §4:12A-1 (Executive finding).

2

components of the industry. (id.) Despite the steady loss

of dairy farms, New York remains the third largest milk

producing state in the nation. (id.)

SUMMARY OF ARGUMENT

1. Three business days before oral arguments in the

Court of Appeals, the court accepted an amicus curiae

brief from the U.S. Environmental Protection Agency

which, for the first time, raised the issue of whether the

dairy farm was a "Concentrated Animal Feeding

Operation". That issue Had not been briefed by either

party. The Court of Appeals refused a request by

Southview for time to file an answering brief. That action

violated FED. R. APP. P. 29. The unanswered

government brief formed the basis of the court's

alternative holding that Southview Farm is a C.A.F.O.

This "so far departed from the accepted and usual course

of judicial proceedings .. as to call for an exercise of this

Court's power of supervision." Sup. Ct. R. 10(1)(a). The

appropriate disposition would seem to be summary

reversal pursuant to Rule 16.

2. The Court of Appeals holding that a manure

spreader is a "point source" under the Clean Water Act

has vast implications for all forms of animal agriculture

throughout the nation. Even the U.S. Environmental

Protection Agency has disapproved this holding. Manure

spreaders are always used in rural terrain which is laced

3

with brooks, streams, gullies, drainage ditches, and ponds.

All of these are "waters of the United States," within the

technical meaning of that term. Accordingly, for all

practical purposes, the decision below subjects manure

spreaders to NPDES permit requirements, effluent

limitations, and other regulation, as well as citizen

initiated litigation. Virtually all dairy farms in the United

States dispose of manure on crop lands and fields. There

are almost 150,000 dairy farm operations in the United

States. All will be affected by the "point source” holding

of the Court of Appeals.

3. Run-off from the croplands and fields of dairy

farms was never intended to be regulated by the Clean

Water Act. The drafters of the Act intended agricultural

run-off to be treated as "non-point sources," subject to a

non-regulatory strategy involving research, education and

management directed by the states. The language of the

Act itself, and its legislative history, explicitly refer to

agricultural runoff as a non-point source. When the Act

was adopted in 1972, Congress was fully aware that

spreading manure on fields and crops was the standard

and best method of disposal.

4. The term "Concentrated Animal Feeding

Operation,” as used in the Clean Water Act, should be

read in the light of common agricultural usage. A "feeding

operation" ("feeder cattle") is a term used in distinction

from a "milking operation" ("milkers"). Congress intended

to regulate feedlots for beef cattle, which were then

4

emerging as a potentially serious source of pollution.

Feedlots concentrate manure directly on the ground in

confined open lots. Dairy farm operations, even very large

ones, do not concentrate manure because it is collected

and widely dispersed on fields where crops and forage are

grown to feed the cows. E.P.A.'s original regulations

correctly construed the Act as excluding agricultural

operations which raised their own crops or forage. The

Court of Appeals eliminated that exclusion by construing

it so narrowly that the crops and forage must be raised

inside the dairy barn for the exclusion to apply. This was

simply a judicial repeal of the statutory and regulatory

exclusion.

I.

WITH RESPECT TO THE C.A.F.O. ISSUE, THIS

COURT SHOULD SUMMARILY REVERSE AND

REMAND BECAUSE THE COURT OF APPEALS

VIOLATED FED. R. APP. P. 29.

Three business days before oral arguments in the Court

of Appeals, the court accepted an amicus curiae brief from

the U.S. Environmental Protection Agency. The

government brief argued that the dairy farm was a

"Concentrated Animal Feeding Operation." That was the

first time the issue was introduced in the case. (Petition,

12) The Court of Appeals refused Southview's motion for

time to file an answering brief. (id.) That action violated

5

fundamental fairness as well as the explicit terms of Fed.

R. App. P. 29. The amicus curiae recognizes that it is not

the usual function of an amicus to raise procedural issues

from which it has suffered no prejudice. But it is

submitted that this error so prejudiced the proper

functioning of the appellate process that this Court may

and should take cognizance of the matter sua sponte. The

unanswered government brief formed the basis for the

court's holding that Southview Farm is a C.A.F.O. (34

F.3d at 123) Southview and the Farm Bureau, as amicus

curiae, were the sole litigators in a position to critique the

government's argument from the standpoint of agricultural

realities. They were simply shut out of the adjudicative

process. This directly resulted in a holding which is

premised on false assumptions about basic farming

practices. The refusal to hear one side of the argument

"so far departed from the accepted and usual course of

judicial proceedings ... as to call for an exercise of this

Court's power of supervision.” Sup. Ct. R. 10(1)(a). The

appropriate disposition would seem to be summary

reversal and remand pursuant to Rule 16 with respect to

the C.A.F.O. issue.

II.

THE COURT SHOULD REVIEW THE TWO

CONSTRUCTIONS OF THE CLEAN WATER ACT

INVOLVED IN THIS CASE BECAUSE BOTH WILL

6

HAVE FAR REACHING AND ONEROUS IMPACTS

ON FARMERS THROUGHOUT THE NATION

The Court of Appeals held that a manure spreader is

a "point source" under the Clean Water Act. (34 F.3d at

119) Even the U.S. Environmental Protection Agency has

refused to support this holding. (See p. 7, infra.) This

holding has vast implications for all forms of animal

agriculture throughout the nation. Manure spreaders are

always used in rural terrain. This is laced with brooks,

Streams, gullies, drainage ditches, and ponds. All of these

are “waters of the United States," within the technical

meaning of that term. /nternational Paper Co. v. Ouellette,

479 U.S. 481, 486 (1987) ("[T]he Act applies to virtually all

surface water in the country ...."); United States v. Riverside

Bayview Homes, 474 U.S. 121 (1985); 40 C.F.R. §122.2

Accordingly, the decision below subjects manure spreaders

to NPDES or SPDES perinit requirement, effluent

limitations, citizen enforcement actions, as well as

government initiated civil and criminal enforcement

actions.

Virtually all dairy farms in the country dispose of

manure on fields and use spreading equipment. See

Methods and Practices for Controlling Water Pollution from

Agricultural Nonpoint Sources, 53 (U.S. Envir. Protection

Agency, 1973) (E.P.A. 430/9-73-015) D. Bath et al., Dairy

Cattle: Principles Practices, Problems, Profits, p. 15, Table

1.10 (Lea & Febiger, Phila. 1985) There are almost

150,000 dairy farm operations in the United States. Milk

Production: February 1995, p. 20 (U.S. Dept. of

7

Agriculture, National Agricultural Statistics Service) All

but a few will be affected by the decision below.

The Environmental Protection Agency has issued a

position paper which states:

"In the Southview Farm case, the Circuit Court

agreed with the citizen plaintiffs’ alternative

argument that, ‘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 sources under the case

law.’ Southview Farm, 34 F.3d 114, 119 (2d Cir.

1994). EPA does not endorse this interpretation

and believes it was unnecessary for the Court to

reach this point because Southview Farm operated

a ‘large’ CAFO. As a large CAFO, the means of

conveyance (i.e., manure spreading vehicles) was

irrelevant for determining whether there was a point

discharge." [Perceptions About E.P.A.'s Actions in the

Southview Farm Case, U.S. Envir. Protection Agency,

Office of Water, p. 3 (Dec. 12, 1994)] (See

Appendix.)

In fact, the determination of the Court of Appeals was,

as the court characterized it, an alternative holding. (34

F.3d at 119) Alternative holding stands as stare decisis.

Woods v. Interstate Realty Co., 337 U.S. 535, 537 (1949).

E.P.A.'s official recognition that the Court of Appeals

was in error is alone a compelling reason for this Court to

grant certiorari to dispel the confusion. The agency's

8

disavowal of the holding does not protect farmers because

they are now open to citizen enforcement actions.

The CAFO holding of the Court below will impact all

farms having 300 mature dairy cattle and which discharge

manure "through a manmade ditch, flushing system or

other similar manmade device." 40 C.F.R. $122, App. B

("and either one of the following conditions are met”)

Almost all farms utilize manmade drainage systems and

devices. See E.P.A., Methods and Practices for Controlling

Water Pollution from Agricultural Nonpoint Sources, p. 3-18

(1973) Accordingly, virtually all farms with 300 or more

animals will become "medium size CAFO's” under E.P.A.'s

rules. (See Perceptions and Facts About the Southview

Farm Decision, p. 1.)

III.

CONGRESS NEVER INTENDED TO REGULATE AS

A POINT SOURCE RUNOFF FROM FARM FIELDS

AND CROPLANDS

The statutory text of the Clean Water Act, 86 Stat. 816,

twice refers to runoff from agricultural land as a non-point

source.

One provision, explicitly categorizes "runoff from

manure disposal areas and from land used for livestock

and crop production" as a nonpoint source. 33 U.S.C.

9

§1288(b)(2)(F)? Another section refers to “agricultural

and silvicultural activities, including runoff from fields and

crops and forest lands” as "nonpoint sources of pollutants.”

33 U.S.C. §1314(f)? Both sections were enacted by

Congress in the Federal Water Pollution Control

Amendments of 1972, 86 Stat. 816, the same legislation

which defined the term "point source." 86 Stat. 816, 886

The Court of Appeals overlooked both sections. The

Court erroneously concentrated on the definition of "point

source" in isolation from the rest of the statute. (31 F.3d

733 U.S.C. §1288(b)(2)(F) in relevant part provides:

"Any plan shall include ... (F) a process to (i) identify, if

appropriate, agriculturally and silviculturally related

nonpoint sources of pollution, including return flows from

irrigated agriculture, and their cumulative effects, runoff

from_manure disposal areas, and from land used for

livestock and crop production, and (ii) set forth

procedures and methods ... to control to the extent

feasible such sources;"

°33: U.S.C. §1314(f) in relevant part provides:

"The Administrator ... shall issue ... information

including (1) guidelines for identifying and evaluating the

nature and extent of nonpoint sources of pollutants, and

(2) processes, procedures, and methods to control

pollution resulting from - (A) agricultural and silvicultural

activities, including runoff from fields and crops and forest

lands;"

10

114, 117-118.) Department of Revenue of Oregon v. ACF

Industries, 510 U.S. ___, 114 S. Ct. 843, 849 (1994); Gade

v. National Solid Wastes Mg't. Assn., 505 U.S. , 182

S.Ct. 2374, 2383 (1992); New York v. United States, 505

U.S. ___, 112 S.Ct. 2408, 2425 (1992) This Court has

made it clear that "A provision that may seem ambiguous

in isolation is often clarified by the remainder of the

statutory scheme - because the same terminology is used

elsewhere in a context that makes its meaning clear ..."

United Savings Ass'n. v. Timbers of Inwood Forest, Assoc.,

484 U.S. 365, 371 (1988); Massachusetts v. Morash, 490

U.S. 107, 115 (1989); Pavelic & LeFlore v. Marvel

Entertainment, 493 U.S. 120, 123 (1989); Sorenson v.

Secretary of Treasury, 475 U.S. 851, 860 (1986).*

The legislative history of the Federal Water Pollution

Control Amendments of 1972 also demonstrates Congress’

clear intent to classify agricultural runoff as a nonpoint

source. Senate Report No. 92-414 -eprinted in 2 U.S. Code

Cong. & Admin. News 3677 (1972) ("The bill also requires

the Administration to conduct research into better

methods of controlling pollutants from nonpoint sources

‘Another canon of statutory construction is also

involved. This court has noted that the Clean Water Act

"anticipates a partnership between the States and the

Federal government, animated by a shared objective," and

in such a context, preemption of the states’ role should not

be readily found. New York v. United States,505 U.S. __,

112 S. Ct. 2408, 2424 (1992).

11

such as agricultural runoff."); id., §3705 "One of the most

significant aspects of this year's hearings on the pending

legislation was the information presented on the degree to

which nonpoint sources contribute to water pollution.

Agricultural runoff, animal wastes, soil erosion, fertilizers,

pesticides and other farm chemicals are a part of runoff

(Emph. supplied) The extended commentary on

Section 304(e)(2)(A) 33 U.S.C. §1314, is particularly

Significant. The Senate report notes that the section

requires the Administrator of E.P.A. "to issue information

to the States and to the public on the processes,

procedures, and methods to control pollution related to

nonpoint sources. Included within this category are

activities such as agriculture." 2 U.S. Code Cong. & Admin.

News, 3718 (1972) It is clear that Congress was very much

aware that sediment from agricultural runoff "is by volume

our major pollutant" and that "Fertilizer and pesticide

runoff are also major agricultural nonpoint sources." (id. )

Congress specifically chose to deal with agricultural runoff

in a non-regulatory way.

The study of methods for controlling "runoff from fields

and crop ... lands" was conducted as required by §304(e),

33 U.S.C. §1314(f). The Administrator of E.P.A., in

consultation with the U.S. Department of Agriculture,

issued the required report, entitled Methods and Practices

for Controlling Water Pollution from Agricultural Nonpoint

Sources (1973) (E.P.A. Doc. No. 430/9-73-015) This

document demonstrates the Administrator's

contemporaneous understanding of the 1972 legislation.

12

An entire chapter is devoted to the appropriate handling

of animal wastes. (id. 53-58) The report notes that,

"Land is a nonpoint source of pollutants to water

systems, mainly by means of erosion. The

application of animal wastes to land can increase

pollution if proper practices are not followed. When

animal wastes are properly applied to land, the

practices is a highly effective and acceptable means

for disposal." (id. 53)

The report treats as nonpoint sources “animal wastes

applied to agricultural land," including "waste removed

from feeding facilities" and "storm runoff and snow melt."

(id.) There is an entire section devoted to “Wastes

Removed from Animal Confinement Facilities” (id., 53-

54), and "Methods of Waste Application,” to land. (id. 54)

The agency was fully aware of the widespread practice of

spreading manure by mechanical equipment. "The surface

application methods include surface and_ sprinkler

irrigation techniques, and tank spreaders .... The tank

spreader methods require more labor than irrigation

methods.” (id.) The Report also recognizes the need for

water erosion control methods (id. 55; 3-24), including

"natural or outlets ... for safe disposal of runoff from

fields” (id. 18), as well as the use of pipe outlets. (id.) All

of these devices are treated as nonpoint sources.

Subsequently, Congress held extensive oversight

hearings on E.P.A.'s enforcement policy with respect to

feedlots, but never disturbed the policy of treating

agricultural runoff as a nonpoint source. Control of

Pollution from Animal Feedlots: Hearings Before a

13

Subcommittee of the Committee on Government Operation

of the House of Representatives, 93rd Cong., 1st Sess.

(1973); Control of Pollution from Animal Feedlots and

Reuse of Animal Wastes, H.R. Rep. No. 93-1012, 93rd

Cong., 2d. Sess. (1974) Congress’ only intervention has

been to narrow the definition of point source in order to

exempt agricultural activities.

IV.

CONGRESS NEVER INTENDED TO TREAT

CONVENTIONAL DAIRY FARMS WHICH GROW

THEIR OWN FEED AND FORAGE CROPS AS

CONCENTRATED ANIMAL FEEDING OPERATIONS

Before adoption of the Water Pollution Control

Amendments of 1972, the Senate Subcommittee on Air

and Water Pollution held a hearing exclusively addressed

to feedlot operations. Hearings Before the Subcommittee on

Air and Water Pollution, 92d Cong. 1st Sess. (1971) The

testimony and appendices establish that the primary

problem facing Congress was the recent development of

beef feedlots - large concentrations of animals in confined

open spaces. (id., 2517, 2547, 2553, 2565.) Dairy farms,

even large ones, concentrate animals, but not waste. The

animal waste is deposited initially on the barn floor, then

collected and dispersed on the land, where it is taken up

and controlled by crops and vegetation. See Methods and

Practices for Controlling Water Pollution from Agricultural

14

Nonpoint Sources, 53-57, (U.S. Environmental Protection

Agency, 1973) The use of pasture land was not, in 1972,

and is not now, the primary source of nutrition for dairy

cows.’ Pasturage cannot provide adequate nutrients for

milk production in the volume necessary to sustain a dairy

farm.

The "concentrated animal feeding operation" provision

in 33 U.S.C. §1362(14) was addressed primarily to beef

feedlots. The term "feeding operation" itself distinguishes

it from a "breeding" or "dairy operation." In agriculture,

"feeder" animals are animals being fattened for slaughter.

The remote origins of the statutory language can be found

in regulations of the Kansas Board of Health presented to

the Kansas City hearing. Hearings, supra, p. 2561. They

refer to areas "in which no vegetation, intended for animal

food, is growing." (id.) E.P.A.'s initial understanding of

the statutory term was correct. It excluded "a lot of

facility" were "crops, vegetation, forage growth, or post

harvest residues are not sustained .." 40 C.F.R.

§122.23(b)(ii) The House Committee on Government

Operations held oversight hearings in 1973 on E.P.A.'s

proposed NPDES regulations. The Committee received

in evidence comments by the Secretary of Agriculture to

the E.P.A. Administrator. The Secretary suggested the

following definition:

*See D. Bath et al., Dairy Cattle: Principles, Practices,

Problems, Profits, 155-156 (Phila. 1985).

15

"A ‘Concentrated Animal Feeding Operation’ is a

feed lot, feed yard, or confined feeding facility

having more than 300 animal units at one time.

Feed lots, feed yard, or confined feeding facilities

shall mean the feeding of livestock on sites or

facilities from which wastes must be removed and

that are not normally used for raising crops, or on

which no vegetation intended for livestock feeding is

growing.”

This expresses the original and correct understanding of

the statutory term. See also definition of "feedlot" in US.

Environmental Protection Age ncy, Common Environmental

Terms, p. 9 (1974)

The 1973 E.P.A. report, Methods and Practices for

Controlling Water Pollution from Agricultural Nonpoint

Sources, also throws light on the agency's original

understanding of the term "post harvest residues". That

report contains the following definitions on page 73:

“crop residue - The portion of a plant or crop left in

the field after harvest.

"crop residue management - Use of that portion of

the plant or crop left in the field after harvest for

protection or improvement of the soil."

°Hearings: Control of Pollution From Animal Feedlots,

H. Rep. Comm. on Government Operations, 93rd Cong.

Ist Sess., p. 873 (1973).

16

The most familiar example of "post harvest residues"

would be the stubble of corn stalks left on farm fields.

The original Congressional and administrative intent to

exclude conventional farms which grow their own feed and

forage has been totally nullified by the Court of Appeals.

The result of the court's construction is that crops,

vegetation, forage growth or post harvest residues must be

grown inside the barn or dairy cows must be raised solely

on pasture with no shelter at all. This simply amounts to

judicial nullification of the statutory intent and repeal of

the words of the regulations.

CONCLUSION

For all the foregoing reasons the amicus curiae urges

this Court to grant the Petition for Certiorari.

Respectfully submitted,

Thomas G. Conway

Counsel of Record

NYS Legislative Commission

on the Dairy Industry

NYS Senate Chamber

Albany, New York 12247

(518) 455-2983

March 30, 1995

ie wcll

APPENDIX

U.S. ENVIRONMENTAL PROTECTION AGENCY

Office of Water

Washington, D.C. 20460

PERCEPTIONS AND FACTS

ABOUT THE SOUTHVIEW FARM DECISION

December 12, 1994

PERCEPTION #1. All farmers may face regulatory

controls for manure spreading.

REALITY: The Southview Farm case is about

concentrated animal feeding operations, as defined by

EPA regulations, not farming operations generally. Under

the express terms of the Clean Water Act, concentrated

animal feeding operations (CAFOs) are specifically subject

to permit requirements. Other farming operations are not

subject to CWA permit requirements; most feedlots are

not subject to the permit requirements. This case did not

change the law on this point.

Not all feedlots are CAFOs. The first threshold question

is whether a feedlot is an "animal feeding operation

(AFO)," i.e., a lot or facility where animals are (1)

stabled/confined and fed/maintained for a total of 45 days

or more in any 12-month period and (2) crops, vegetation,

forage growth or post harvest residues are not sustained

over any portion of the lot or facility. Not all AFOs are

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CAFOs. CAFOs are AFOs that meet certain criteria

based on size, manner of waste conveyance, and, in some

cases, whether a representative of the permitting authority

has visited the AFO personally.

Generally, only owners and operators of CAFOs may face

regulatory controls for spreading of the manure produced

by their facility. A CAFO exists if it is (1) a "large" AFO

(with over 1000 animal units) or (2) a "medium-sized"

AFO (between 300 and 999 animal units that has a “direct

discharge through a manmade conveyance" to waters of

the United States or through which waters of the United

States pass). Finally, if the owner or operator of a CAFO

does not cause an addition of manure to waters of the

United States, that CAFO would not need a permit.

Permits are required only to authorize the discharge of

pollutants from a CAFO. Some CAFOs that do not

discharge nonetheless do obtain permits as to provide a

"permit shield” in the event of unanticipated, protracted

storm events.

PERCEPTION #2. Permitting authority has now been

extended for federal and state regulators to all aspects of

manure handling, including operation of vehicles.

REALITY: Permitting authority under the Clean Water

Act does not extend to operation of vehicles or any other

aspect of manure handling unrelated to the "addition of

pollutants from a point source to waters of the United

States." Under the Clean Water Act, a CAFO is

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specifically defined as a “point source" and thus discharges

from such operations are subject to CWA permit

regulation. Most other farming operations would not be

"point sources” within the meaning of the CWA under the

agricultural storm water discharge exemption. Even

manure discharges from CAFOs may qualify for the

agricultural storm water exemption, but that was not the

case with Southview Farm.

The court in Southview Farm said that the issue in

determining whether the exemption applies is whether

discharges are the result of precipitation, and not whether

discharges occur during the rainfall or mix with rain water

runoff. Testimony was presented to the jury to indicate

that Southview Farm spread manure in anticipation of rain

to take advantage of the exemption. Though discharges

occurred during rainfall events, the discharges were not

the result of precipitation but rather the over-saturation of

the fields with manure.

PERCEPTION #53. The definition of CAFO has now been

expanded beyond EPA's historic program and regulations.

REALITY: The interpretation of the vegetation criterion

is not an expansion of historic interpretations of the point

source permit program for CAFOs. As the amicus brief

explained, the explanation of the vegetation criterion was

based on the administrative record supporting the CAFO

regulations published in 1974. EPA recognizes that not all

States administering approved point source permit

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programs interpret the CAFO regulations in a consistent

manner. The relative complexity of the CAFO regulation

itself has resulted in inconsistent State reporting of sources

of water quality impacts pursuant to CWA section 305(b).

To remedy what EPA perceived to be inconsistent

interpretations of the CAFO regulations nationwide, in

1991, EPA convened a workgroup of EPA Regions and

approved States to develop a guidance manual on

interpretation of the regulation. EPA met with

feedlot/producer groups to seek out review and comment.

Explanations of the regulations in the amicus brief are

consistent with the draft guidance manual.

PERCEPTION #4. All farmers may be subject to citizen

suits for discharges without a permit for runoff from

fields where manure was spread.

REALITY: Only owners and operators of unpermitted

concentrated animal feeding operations may be subject to

citizen suits, where there are discharges from the CAFO

to navigable waters, not all farmers. Moreover, only

owners and operators of "large" feedlots may be subject to

citizen suits for "runoff," or sheet flow from fields.

"Medium-sized" feedlots will not be subject to citizen suits

for "runoff" because such feedlots are not concentrated

animal feeding operations unless (1) the "runoff" is to

waters of the United States that pass through the area of

animal confinement or (2) the feedlot discharges "directly"

to waters of the United States through a manmade

conveyance.

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PERCEPTION #5. All manure spreaders are point

sources.

REALITY: Manure spreading operations are not

necessarily point sources under the Clean Water Act. As

explained previously, CAFOs are the only feedlots subject

to regulation under the point source permit program. If

a feedlot is not a CAFO, it is not a point source. In the

Southview Farm case, the Circuit Court agreed with the

citizen plaintiffs' alternative argument that, "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 sources under the case

law." Southview Farm, 34 F.3d 114, 119 (2d Cir. 1994).

EPA does not endorse this interpretation and believes it

was unnecessary for the Court to reach this point because

Southview Farm operated a "large" CAFO. As a large

CAFO, the means of conveyance (i.e., manure spreading

vehicles) was irrelevant for determining whether there was

a point source discharge.

If Southview Farm had been a medium-sized CAFO, the

means of conveyance would be relevant because a

medium-sized AFO is not a CAFO unless the discharge is

through a manmade conveyance or the discharge occurs

directly into waters of the United States passing through

the area of animal confinement. If neither of those two

means of conveyance criteria were met, a medium-sized

AFO would not be a CAFO unless designated by the

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permitting authority after an on-site inspection.

Therefore, the existence of manure spreading devices as

a medium-sized AFO is relevant to determine whether it

is a CAFO. For small AFOs, to be a point source, the

feedlot would need to both (1) discharge through a

manmade device (e.g., use manure spreaders) and (2) be

designated as a CAFO by the permitting authority. Thus,

extending the Southview Farm Court's reasoning to

medium-sized and small AFOs is misplaced. The Court's

“alternative” holding on this point was dicta.REALITY: All

manure spreaders are not necessarily point sources. In the

Southview case, the Circuit Court stated that the manure-

spreading devices used on Southview property were point

sources. However, in this particular case because the

number of animals met the size requirement of a large

CAFO (an AFO with over 1000 animal units), this point

was dicta. This means that the discussion of whether the

manure spreader was a point source was irrelevant in the

case because Southview was determined to be a point

source, a CAFO.

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U.S. ENVIRONMENTAL PROTECTION AGENCY

Office of Water

Washington, D.C. 20460

PERCEPTIONS ABOUT EPA'S ACTIONS

IN THE SOUTHVIEW FARM CASE

December 12, 1994

PERCEPTION #1. EPA intends to broaden its regulatory

control over farmers, as evidenced by the filing of the

amicus brief in Southview Farm case.

REALITY: The United States filed the amicus brief in the

Southview Farm case to correct the District Court's legal

interpretation of existing EPA regulations. The District

Court below had concluded that Southview Farm was not

an AFO based on the vegetation criterion described

previously. The District Court held that, because

Southview Farm grew crops in fields adjacent to the

feedlot, the feedlot was not an AFO. In the amicus brief,

EPA explained that the Agency interpreted the vegetation

criterion differently -- that only vegetation in the lot or

facility where animals are stabled/confined and

fed/maintained should be considered to determine

whether a feedlot is an AFO. To conclude otherwise

would render the definition of CAFO meaningless because

it disregards "concentration" of animals. EPA presumes

that most, if not all, feedlots have some vegetation nearby.

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EPA did not intend to broaden regulatory controls, but

merely to clarify that a “large” feedlot was, according to

existing regulations, a concentrated animal feeding

operation. If uncorrected, the legal position announced in

the District Court below would have effectively eliminated

all existing regulatory controls over operations clearly

intended to be subject to CWA permitting by Congress.

In the amicus brief, EPA also attempted to explain the

"agricultural storm water discharge" exemption. EPA

argued that even "large" CAFOs would not be subject to

the CWA point source program if, for instance, a CAFO

spread manure on agricultural fields consistent with

accepted agricultural practices (e.g., not at rates in excess

of normal agronomic rates, not when the ground is over-

saturated, etc.). EPA did argue that not all additions of

pollutants from an agricultural field would be exempt, so

that agricultural fields would not provide a "nonpoint

haven" where any other industrial point source discharger

could evade the CWA through land application of

industrial wastes. The Court did not incorporate EPA's

interpretation of the exemption because the Southview

Farm matter did not involve such facts.

PERCEPTION #2. EPA intends to encourage citizens to

sue farmers for manure spreading and offers no

protection if they do sue.

REALITY: EPA has no intention of encouraging CWA

citizen suits against farmers for manure spreading. EPA

fete

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recognizes that manure spreading in and of itself is a

routine, accepted agricultural practice which accomplishes

two beneficial goals; removal and distribution (usually

upon cropland) from the animal confinement area and

increased fertility of cultivated land. EPA's regulation of

CAFOs under the point source (NPDES) program is

concerned only with the proper collection, retention,

storage, handling, and disposal of animal wastes by

CAFOs, and not all farmers generally.

PERCEPTION #3. EPA regulators give no credit to

farmers for the practices they adopt voluntarily.

REALITY: As explained below, the United States argued

in the amicus brief that the “agricultural storm water

discharge" exemption could be interpreted to exclude from

the point source permitting program storm water

discharges from manure spreading according to accepted

agricultural practices. The Court did not accept EPA's

interpretation because, as the jury found, the facts in

Southview Farm did not present the opportunity to apply

such an interpretation.

EPA, in partnership with USDA and Conservation

Districts, has a long history of support to farmers, both in

technical assistance and outreach and financial aid in

grants and pass-through funding from the federal to the

State and local level for development of best management

practices (BMPs) and local demonstration projects in

agricultural water use efficiency. Some examples include

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(1) the CWA section 319 grants EPA provides to States to

implement State nonpoint source management programs,

which are frequently voluntary and incentive-based and (2)

the Farm-A-Syst program, which encourage self-evaluation

or "reality checking" for farmers in assessing the economy

and efficiency of their farming practices.

In supporting these endeavors, EPA recognizes that most

BMPs are a direct result of common sense on the part of

the farmer, and are employed because the return on the

investment of time and resources usually presents a better

than "break-even" advantage. EPA has provided over 371

million dollars ($371M) to states from fiscal years 1990

through 1995 - most funding goes to agricultural activities.