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

EDITOR'S NOTE

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Supreme Court, U.S.

FILED

MAR 31 1995

OFFICE OF THE CLERK

No. 94-1316

: Is Ue Supreme Grurt Of Ue Waiter States

October Term, 1994

SOUTHVIEW FARM AND RICHARD H. POPP,

Petitioners,

V.

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 AMICUS CURIAE OF THE

NORTHEAST DAIRY PRODUCERS ASSOCIATION

IN SUPPORT OF PETITIONERS

George H. Lowe, Esq.

Counsel of Record

H. Dean Heberlig, Jr., Esq.

Thomas M. Shephard, Esq.

Bond, Schoeneck & King, LLP

One Lincoln Center

Syracuse, New York 13202

Telephone: (315) 422-0121

Counsel for Northeast Dairy

Producers Association

i

QUESTIONS PRESENTED

1. Whether a dairy farm, using its animal waste to

fertilize cropland adjacent to its cattle housing facilities, is a

“concentrated animal feeding operation" and thus a point

source subject to the permit requirements of ‘he Clean Water

Act.

2. Whether previously applied liquid manure, washed

from fields by a rain storm, constitutes an “agricultural

stormwater discharge,” exempt from the Clean Water Act's

definition of point sources.

3. Whether vehicles spreading manure onto cropland

or depressions in fields, neither of which directly discharge

pollutants into navigable waters, may constitute point sources

subject to the permit requirements of the Clean Water Act.

QUESTIONS PRESENTED

PRELIMINARY STATEMENT

INTEREST OF NEDPA AS AMICUS CURIAE ... .

I.

THE ISSUES PRESENTED BY THE PETITION

ARE OF VITAL IMPORTANCE

A. Local and State Economies are Dependent

Upon the Substantial Contributions of

Agriculture and the Dairy Industry. .....

Agricultural Products are Generated at Slim

and Decreasing Margins, and Under

Conditions Largely Beyond the Control of

Individual Farmers. Adding to the Costs of

Production Will Cripple the Industry... . . .

. The Recycling of Animal Waste is an

Essential Part of Farm Nutrient

Management Programs. It Renders

Substantial and Essential Benefits to the

Economic and Environmental Well-Being

of Farms and their Surrounding

De ae a RN ee ees oi” Se oe oe er ee ee ee ee

Fe nn ee

iii

TABLE OF CONTENTS (continued) Page

Il. THE SECOND CIRCUIT DECISION IS

INCONSISTENT WITH LAW AND |

INCOMPATIBLE WITH ESSENTIAL FARM

PRACTICES. IT WILL RENDER THESE

PRACTICES UNECONOMICAL, TO THE

EXTREME DETRIMENT OF THE INDUSTRY. . 9

A. The Second Circuit's Expansion of the

Point Source Discharge Definition to |

Vehicles and Depressions that Do Not

Discharge to Navigable Waters is

Unreasonable and Will Devastate American

PS as eo eee os 10 |

aon? he a Sn RIL as NEI ie anil nae nin saat

B. The Second Circuit's Application of the

CAFO Definition is Incompatible with

Viable Agricultural Practices and

Inconsistent with the Law... ........ 12

C. The Second Circuit Would Render the

Agricultural Stormwater Discharge

Exemption Enacted by Congress A

ee 15

D. The Second Circuit's Expansion of Point

Source Regulations will Add Substantially

to the Costs of Production, Rendering Farm

Practices and Businesses Uneconomical. . . .17

lil. THIS CASE PROVIDES AN APPROPRIATE

CONTEXT FOR THIS COURT TO ADDRESS

THE IMPORTANT QUESTIONS PRESENTED BY

TABLE OF CONTENTS (continued) Page

(RD 6 nk 6 6 O84 Re Oe eee 19

APPENDIX A

CASES Page

Concerned Area Residents for the Environment vs.

Southview Farm, 34 F.3d 114 (2d Cir. 1994) . . 3, 10, 11

STATUTES

4 Uo 6 GUE Oh ee. CF. wt tt tte 7

F UBC. § OZ) ee amm. CISSR tte 7

DP Un OS Owe tt ee ee 10, 15

Jo Wu. § Ue Ge, PD. ww tt 10

33 U.S.C. § 1362 (14) (Supp. 1994)... .... 10, 16

REGULATIONS

pee A 16

i Gale et Eo ck 6 wk ee ee 13, 14

40 C.F.R. § 122.23, App. B(1994) ......... 14

MISCELLANEOUS AUTHORITY

American Farm Bureau Federation, Farm Facts... . 5

American Farmland Trust, Js Farmland

Protection a Community Investment? (1993). . . . . . 5

Department of Agricultural, Resource and

Managerial Economics, Cornell University,

E.B. 94-26, Census of Agriculture Highlights;

el Bee ee a > i 6S aw es 4,5, 6

vi

TABLE OF AUTHORITIES (continued)

Department of Agricultural, Resource and

Managerial Economics, Cornell University,

R.B. 94-07, Dairy Management Business

Summary; New York State 1993 .......... 6, 7

Stuart Klausner, Department of Soil, Crop

and Atmospheric Sciences, Cornell University,

SSWFPI, Nutrient Management: Crop Production

ue Wer Ga I gk ttt kk

New York Agricultural Statistics Service,

New York State Dept. of Agriculture and Markets

with United States Dept. of Agriculture, New York

Agricultural Statistics 1993-94. .......22.., 4,6

S. Rep. No. 95-370, 95th Cong., Ist Sess. 35

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

WE re a Oe ee ee ede

United States Environmental Protection Agency,

Office of Water, Nonpoint Source Guidance (1987). .

World Bank, World Development Report 1992 -

Development and the Environment i Paper a are

41 Fed. Reg. 11,458, at 11,459(1976). .......

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

. 10

" CA a ORG I oO om

No. 94-1316

IN 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

BRIEF AMICUS CURIAE OF THE

NORTHEAST DAIRY PRODUCERS ASSOCIATION

IN SUPPORT OF PETITIONERS

PRELIMINARY STATEMENT

The Northeast Dairy Producers Association

("NEDPA") submits this brief as amicus curiae, pursuant to

Rule 37.2 of the Rules of this Court, in support of

Petitioners, Southview Farm and Richard H. Popp (the

"Petitioners"). The written consents of Petitioners and

2

Respondents to the filing of this amicus curiae brief are

attached as Appendix A.

INTEREST OF NEDPA AS AMICUS CURIAE

NEDPA is an association of 75 forward-looking dairy

producers committed to an_ efficient, profitable,

environmentally-conscious and consumer-oriented dairy

industry in the northeast. NEDPA's members, located

primarily in New York State, own and operate farms on

which approximately 37,000 dairy cows are milked. The

production from these farms accounts for more than $111

million of gross annual sales. The 29 associate members of

NEDPA represent the interests of agribusiness, from

veterinarians and consultants to lenders and cooperatives.

NEDPA endeavors to encourage and provide forums

for the free exchange of ideas among producers, to provide

leadership and financial support for addressing industry

issues, to develop and support programs that encourage young

people to establish careers in the dairy industry and to work

with government to ensure a favorable business climate in the

northeast. To that end, NEDPA sponsors informational

meetings, conferences, tours and university research on

industry issues. In addition, NEDPA members are actively

involved in organizations representing the breadth of the dairy

industry, and agriculture generally, at the local, state,

regional and national level. NEDPA members are industry

and community leaders.

The questions presented in the Petition transcend the

interests of the parties to this case. The ultimate answers to

the questions are of particular importance to the future of

NEDPA and its members, and to the dairy industry in New

York, the northeast and throughout the United States. The

Second Circuit would implement a permit system and impose

3

strict regulations on long-standing farming practices and

research-based recommendations relating to the use and

management of animal wastes, which have never been the

subject of governmental controls. Crop management practices

that have been used for centuries would be impacted

irreversibly. Regulatory compliance and the necessary

. transformation of production methods would add significantly

to dairy production costs, placing an industry currently

suffering from declining operating margins in an even more

precarious position.

cans NEE AD. mage mon ea

Judicial imposition of “permitting requirements” on

farmers who are recycling natural, organic material to the

land, would be in direct contradiction of Congressional

legislation and Environmental Protection Agency ("EPA")

regulation exempting such actions, and is ill-advised and

irresponsible.

ARGUMENT

The decision of the Second Circuit (Concerned Area

Residents for the Environment v. Southview Farm, 34 F.3d

114 (2d Cir. 1994)) disregards the practical import and effect

of regulating animal waste management practices as point

source discharges. The holding also ignores Congressional

policy and directives relative to these issues and goes far

beyond the scope of regulation intended by Congress in the

Clean Water Act.

It is for these reasons that this Court should grant

certiorari. The Second Circuit should not be allowed to usurp

the powers of Congress and embark on its own program of

judicial legislation and regulation. Allowing its decision to

stand will significantly harm the dairy industry, specifically,

and agriculture generally.

i ii ill

4

I. THE ISSUES PRESENTED BY THE PETITION

ARE OF VITAL IMPORTANCE.

A. Local and State Economies are

Dependent Upon the Substantial

Contributions of Agriculture and

the Dairy Industry.

Agriculture is New York State's largest industry.

Roughly 8.2 million acres of land are utilized for agricultural

production. New York Agricultural Statistics Service, New

York State Department of Agriculture and Markets with

United States Department of Agriculture, New York

Agricultural Statistics 1993 - 1994 (hereinafter New York

Agricultural Statistics) 6. Land in agriculture accounts for

27% of New York's total land area. Jd. On this land base,

New York's farmer@ generate in excess of $2.6 billion in

agricultural product sales. Department of Agricultural,

Resource, and Managerial Economics, Cornell University,

E.B. 94 - 26, Census of Agriculture Highlights; New York

State, 1992 (hereinafter Census of New York Agriculture) 9.

More than 50% of these sales ($1.4 billion) are dairy

products. Jd.

Much of the cropland in New York, and the northeast,

is best suited for growing forage crops. These, in turn, are

converted most efficiently by dairy animals into saleable

products. /d. at 2. Asa result, dairying is the dominant

industry in most upstate New York counties, as well as

elsewhere in the northeast. As the third-ranking state in milk

production, New York's agricultural economy is critically

dependent upon the dairy industry. New York Agricultural

Statistics, at 12.

In almost every county of New York, farm

expenditures on inputs for production exceed $20 million,

5

adding significantly to each counties' economy. Census of

New York Agriculture, at 30 & 54. The importance of this

“value-added” element is also seen in the multiplier effect of

local agriculture. Common estimates place the agricultural

multiplier in the range of $3.00 - $5.00 (e.g., for every dollar

received from farmers for selling agricultural goods and

services, $3.00 - $5.00 are earned by local businesses and

processors serving farmers and their customers). American

Farmland Trust, /s Farmland Protection a Community

Investment? 3 (1993). No industry has a comparable

multiplier. By way of comparison, the estimated multipliers

for the service and trade industries are 25% and 30% less than

that for agriculture.

"Cost of community service studies,” demonstrating

the relationship between the real property tax revenues

generated by an industry and the cost of services provided to

that industry, reveal other benefits of agriculture to local

economies. Typically, such studies find that for every dollar

of revenue raised from the residential sector, local

municipalities spend approximately $1.12 on public services.

Id. at2, 21-24. For every dollar raised from agricultural

lands, only 33¢ is spent on services, leaving 67¢ to off-set

other public and community expenses. /d.

U.S. agriculture, and the dairy industry in particular,

has become a leader in the low-cost production of food.

American farmers are the world's most productive; each

farmer produces food and fiber for an estimated 128 people --

94.3 people in the United States and 33.7 people abroad.

American Farm Bureau Federation, Farm Facts, at 18 (Data

supplied by United States Department of Agriculture). Each

consumer in the United States is supported annually by the

Output from only one and one-quarter acres of land. Jd. at

21. Consumers in this country spend a smaller percentage (10

- 13%) of their income on food than consumers in other

6

countries. Jd. at 17; World Bank, World Development Report

1992 - Development and the Environment 236 - 37 (1992).

By comparison, French consumers spend 16 - 17% of their

income on food, Japanese 18%, Russian 28%, and Mexican

33-35%. Id.

Put simply, agriculture generates substantial direct and

indirect economic benefits for local and state economies,

while imposing few burdens upon them. Furthermore,

consumers in this country, as well as abroad, have come to

know, depend upon and demand the low-cost, high-quality

food produced by American farmers. Imposing additional

costs and unnecessary regulation on agriculture will not only

hurt individual farmers, but will also weigh heavily on other

sectors of our society.

B. Agricultural Products are Generated

at Slim and Decreasing Margins, and

Under Conditions Largely Beyond the

Control of Individual Farmers.

Adding to the Costs of Production

Will Cripple the Industry.

In 1993, the average net cash return per farm in the

State of New York was approximately $14,100. Census of

New York Agriculture, at 12. Between 1983 and 1993,

operating margins for New York dairy farmers declined by

75¢ per hundred weight of milk sold. Department of

Agricultural, Recourse, and Managerial Economics, Cornell

University, R.B. 94 - 07, Dairy Management Business

Summary, New York State 1993, at 3 (hereinafter Dairy

Business Summary). Considering that the price per hundred

weight of milk over this same period averaged $13.21, this

reduction in operating margin is substantial. New York

Agricultural Statistics, at 76.

7

Since 1937, the Secretary of Agriculture has regulated

the price paid to producers of raw milk through the milk

marketing order system. 7 U.S.C. § 601 et seq. (1980).

While these governmentally established prices are designed to

stabilize prices and establish price floors, they are, for all

practical purposes, the actual prices paid to producers. The

sheer number of producers makes it impossible for individual

farmers to exert market power and effect the price paid for

their milk. As a result, the price received by dairy producers

for their milk is a matter beyond their control. Dairy

producers cannot pass along any increases in the costs of

production. This is a situation they must accept and factor

into their business equation.

Given the limited ability to effect the price of outputs

and thereby pass along increased production costs, dairy

producers are left to control these costs, as best they can. Of

the total costs of producing milk, feed and crop expenses

constitute approximately 30%. Dairy Business Summary, at

27. Much of this expense derives from purchased grains and

feed concentrates needed to provide a nutritionally balanced

ration to dairy cattle. In a manner similar to the price

controls placed upon milk, the Secretary of Agriculture

regulates the price of many feed grains. 7 U.S.C. § 1421 et.

seq. (1988). Asa result, producers have little to no control

over the cost of purchased feed inputs. Furthermore, even if

dairy producers can manage the costs of "home grown" feed

stuffs, the degree of management is always subject to an

unknown and unmanageable factor -- the weather.

Because dairy producers do not control the price of

their product and cannot exert substantial control over one of

the largest components of their expenditures, management of

all remaining production costs is of great importance. The

Second Circuit's holding would impose substantial additional

8

costs on the production of dairy products; costs which will

fall directly on individual farmers.

C. The Recycling of Animal Waste is an

Essential Part of Farm Nutrient

Management Programs. It Renders

Substantial and Essential Benefits to

the Economic and Environmental

Well-Being of Farms and their

Surrounding Landscapes.

In the face of declining operating margins, dairy

farmers have adopted more effective and efficient feeding

strategies and crop management systems to reduce the costs

of production and maintain profitability. Utilization of

naturally occurring, organic animal wastes as part of a

nutrient management program is an essential component of

any dairy production and crop management system.

Agriculture, and the dairy industry in particular, have

long recycled the naturally occurring, organic, animal waste,

known as manure, as part of their production and

management efforts. Rather than treat these byproducts as

refuse for disposal, farmers have, consistent with

recommendations from agricultural scientists, used and

recycled manure as part of their management efforts. By

recycling nutrients from animals to crops and back to the

animals again, farmers can increase crop and animal

productivity and minimize nutrient losses that damage the

environment. Stuart Klausner, Department of Soil, Crop and

Atmospheric Sciences, Cornell University, 9SWFPI, Nutrient

Management: Crop Production and Water Quality 3 - 4, 34

(1995). The benefits of nutrient management include reduced

dependency on chemical fertilizers, improved soil quality, and

the efficient and economic production of feed and animal

products. Jd.

Lemmas

9

The Second Circuit's holding would wipe out long-

standing, recommended practices and inhibit the productive

use of animal waste, in favor of its treatment as mere refuse

and offal. The holding would also impede industry efforts to

increase efficiency and production, both of which ultimately

benefit consumers. The regulations and practices that will be

forced upon the industry as a result of the holding will

substantially increase the costs of production to individual

farmers, with the resulting impact felt on the farm, in the

grocery store and on local economies.

Il. THE SECOND CIRCUIT DECISION IS

INCONSISTENT WITH LAW AND

INCOMPATIBLE WITH ESSENTIAL FARM

PRACTICES. IT WILL RENDER THESE

PRACTICES UNECONOMICAL, TO THE

EXTREME DETRIMENT OF THE INDUSTRY.

The alleged Clean Water Act violations at issue in this

case relate to the application of liquid manure onto cropland

from tank spreaders and a spray pivot system. At no time did

Southview dump manure into navigable waters. The alleged

discharge was not from a discrete point, but was diffuse

runoff from cultivated croplands. This migration of

previously applied manure occurred after rain storms. The

resulting stormwater runoff from the fields contained some of

the previously applied manure.

The Second Circuit's holding represents a tortured

interpretation of the definitions of “point source discharge"

and “concentrated animal feeding operation." It also

completely disregards the Congressional exemption and

underlying policies adopted to benefit agriculture. The

holding violates the long-standing legal principles of

separation of power and judicial restraint. If allowed to

i0

stand, the holding will damage agriculture, individual

farmers, local and state economies and consumers.

A. The Second Circuit's Expansion of the

Point Source Discharge Definition to

Vehicles and Depressions that Do Not

Discharge to Navigable Waters is

Unreasonable and Will Devastate

American Agriculture.

Point sources of pollutant discharge, which are

regulated by pollution discharge elimination system permits,

are restricted to a “discernable, confined and discrete

conveyance." 33 U.S.C. § 1362(14) (Supp. 1994). They

include pipes, ditches, channels and the like, through which

pollutants are discharged to navigable waters. Jd. By

contrast, 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,

atmospheric deposition, or percolation." U.S. EPA, Office

of Water, Nonpoint Source Guidance 2 (1987). Nonpoint

sources of pollution are regulated by the states through their

land use decisions. 33 U.S.C. §§ 1288 and 1329 (1986 &

Supp. 1994). By definition the term point source “does not

include agricultural storm water discharges and return flows

from irrigated agriculture.” 33 U.S.C. § 1362(14) (Supp.

1994). Congressional intent could not be more clearly or

more directly stated.

Departing from the point/nonpoint dichotomy

established by Congress, the Second Circuit made the extreme

finding that vehicles spreading manure onto cropland, in

accordance with standard crop fertilization procedures,

constitute point sources of discharge. 34 F.3d 114, 119. In

a like manner, the Court opined that a depression in a field is

11

itself a point source. Jd. at 118 - 19. Each of the Court's

holdings disregards the "discreteness" or the "directness," or

lack thereof, of the “discharge” being analyzed. The holdings

make discharges to the ground and discharges to low spots on

a farm direct discharges to navigable waters.

The Second Circuit's own recitation of the facts

illustrates the remoteness and defuse nature of any

"discharge" -- liquid manure was spread onto cropland

containing a swale. There is no indication the liquid manure

then flowed directly to a navigable water. Instead, following

a rainfall, some of the manure, now mixed with rain water,

spread, ultimately reaching a pipe that ran under a stonewall

bounding the cropland; the pipe in turn lead to a ditch, and

the ditch lead to a stream. Jd. at 118 - 21. This is not a

direct discharge; it is stormwater runoff.

In effect, the Second Circuit's new point source

discharge definition would subject any manure spreading

vehicle and any open cropland to point source permitting

restrictions. Its interpretation is apparently based upon the

supposition that derivatives of materials spread upon cropland

could, at some later point, reach navigable waters. With the

sweep of its pen, the Second Circuit has effectively redefined

long-recognized nonpoint sources as point sources.

The Second Circuit's unwarranted and unreasonable

extension of the point source discharge definition would

subject all of New York's approximately 9,700 dairy farms,

as well as the estimated 140,000 dairy farms in the United

States, to the requirement of obtaining a “point source"

permit. This judicially-created permit requirement of the

Second Circuit is in direct conflict with the express language

of the Clean Water Act and its implementing regulations,

which seek to control direct discharges to navigable waters.

The decision would impose a tremendous burden on dairy

12

producers. The need to correct the decision becomes all the

more imperative when one considers the size of the program

and administrative budget that will be needed to undertake

such a permitting program. Legislative and administrative

processes are designed to examine and evaluate such issues.

The provisions of the National Environmental Policy Act

("NEPA"), Administrative Procedure Act ("APA") and

related statutes apply. Judicial legislation is not the process

by which such a fundamental change in permitting

requirements is enacted.

B. The Second Circuit's Application of

the CAFO Definition is Incompatible

with Viable Agricultural Practices and

Inconsistent with the Law.

Under the Second Circuit's holding, the definition of

a concentrated animal feeding operation ("CAFO") is

rendered nonsensical. The Second Circuit misunderstands the

dairy production process when it determines that, in order to

avoid the CAFO characterization, Southview, and similarly

situated dairy farms, must grow vegetation in areas of animal

confinement. The Second Circuit's holding also evidences a

misunderstanding of the ability of farmland, on which crops

are grown, to absorb, assimiiate and utilize, to the benefit of

the business and the environment, animal wastes. Lastly, the

Court underestimates the central and essential role that these

processes play in the production of agricultural products.

The Court's holding is not only incompatible with

agricultural practices, but also with the express language and

intent of the applicable regulations.’ A straight forward

' The Second Circuit's apparent misapprehension is understandable in light

of the fact that the CAFO characterization of Southview Farm was never

13

reading of the regulations reveals that Southview Farm and

the activities at issue in this case simply do not fall within the

CAFO definition.

A farm must first qualify as an “animal feeding

operation" in order to even be considered as a CAFO.

Excluded from regulated animal feeding operations are

livestock farms that grow crops or vegetation “over any

portion of the lot or facility." 40 C.F.R. § 122.23 (1994)

(emphasis added). The use of the disjunctive "or" evidences

a crucial regulatory distinction between a “lot” and the

"facility." By definition, livestock farms with active cropland

areas are not “animal feeding operations." The preamble to

the CAFO regulations further evidences the intent to exempt

farms that possess cropland and recycle manure to the

cropland. Specifically, in reviewing the entire CAFO

regulatory scheme, the EPA stated that "no permits would be

required from owners or operators of operations which

recycle all pollutants to the land...." 41 Fed. Reg. 11,458,

at 11,459 (1976).

In its holding, the Second Circuit ignored both the

language and the express intent of the animal feeding

operation definition. The Court effectively divided a single

operating dairy farm, of inextricably interdependent parts,

into an artificial grouping cf nonviable, separate and distinct

units. Southview Farm, and dairy farms all over the United

States, have recycled animal wastes generated on one portion

briefed by either party to this case. Rather, the CAFO issue was raised for

the first time in an amicus brief filed by the United States three (3) working

days before oral argument and long after the parties’ briefs had been

submitted. Despite the single-sided briefing of this issue, the Second Circuit

denied Petitioner's motion for leave to file supplemental brief, opting not to

balance the arguments and receive a complete briefing of an issue that

ultimately proved central to the decision.

io

of the facility by applying them to the cropland on other

portions of the same facility. The process has been ongoing

for centuries. The Second Circuit would inhibit this long-

standing, beneficial use of animal waste and the profitable

production of dairy products by arbitrarily dividing farms into

regulated “non-vegetated lots" and unregulated croplands.

The distinction makes no sense and ignores the realities of

modern farming. There can be no serious question that crops

were grown on Southview Farm. As such, it does not come

within the animal feeding operation definition.

Even if Southview Farm qualified as an animal feeding

operation, to fit within the CAFO definition, it must meet two

further criteria. First, one of two animal unit thresholds must

be satisfied. Second, pollutants must be “discharged into

navigable waters from a manmade ditch, flushing system or

other similar man-made device; or pollutants are discharged

directly into waters of the United States which originate

outside of and pass over, across, or through the facility or

otherwise come into direct contact with the animals confined

in the operation.” 40 C.F.R. §122.23 and App. B (1994).

Although Southview Farm meets the first, animal unit

criterion, it fails the second. At no time were pollutants

discharged into navigable waters through a "manmade" device

as that term is expressly defined. Manmade devices are

limited to those "constructed by man and used for the purpose

of transporting waste." 40 C.F.R. §122.23, App. B (1994).

(emphasis added). There is no evidence that Petitioners

discharged the defuse runoff at issue in this case into

navigable waters through such a manmade device. In

addition, no pollutants were directly discharged into navigable

waters that pass through the facility or come into direct

contact with animals housed there.

15

The Second Circuit's holding evinces a

misunderstanding of agricultural production processes and a

misapplication of the express provisions of the applicable

regulations. The misunderstanding underscores the

importance of obtaining the parties’ full briefing of each issue

that comes before a court. The Court's failure to allow full

briefing in this case is critical, especially when the issue upon

which full briefing was denied became the lynchpin to the

ultimate decision.

C. The Second Circuit Would Render the

Agricultural Stormwater Discharge

Exemption Enacted by Congress A

Complete Nullity.

The Second Circuit's holding would neuter the

agricultural stormwater discharge exemption expressly granted

by Congress and enacted by the EPA. In amending the

Clean Water Act in 1977 to exclude “return flows from

irrigated agriculture," Congress stated that "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)." S. Rep. No. 95-370,

95th Cong., Ist Sess. 35 (1977) reprinted in 1977

U.S.C.C.A.N. 4326, 4360. Section 208 refers to the

nonpoint source control provisions of the Clean Water Act.

33 U.S.C. § 1288 (1986). Congressional intent could not be

clearer.

Congress also voiced its policy relative to agricultural

runoff at the time it amended the Clean Water Act to regulate

certain forms of industrial and municipal stormwater runoff

as point source discharges. At the point in time when

Congress specifically brought industrial and municipal

stormwater runoff under the point source regulations,

16

Congress expressly exempted “agricultural stormwater

discharges" from the point source definition. 33 U.S.C.

§1362(14) (Supp. 1994) (amending 33 U.S.C. § 1362(14)

(1986)). By definition, agricultural stormwater discharges are

not “point sources." Id.

As stated by the EPA:

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

land, and forest lands. .. .

40 C.F.R. § 122.3 (1994).

The phrase stormwater was further clarified by the

EPA in the agricultural context when it explained that "storm

water runoff includes runoff caused by rainfall . . . which

flows overland instead of percolation into the soils...."

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

The “discharge” at issue in this case is precisely the

type of occurrence that Congress and EPA have specifically

addressed. The alleged discharge from Southview Farm

constituted a diffuse migration of rainwater, containing

manure which had been previously applied to cropland. Such

runoff fits squarely within the exemption for agricultural

stormwater. The Second Circuit has chosen to ignore the

broad exemption created by Congress and implemented by the

EPA. Indeed, the Second Circuit has interpreted the

exemption out of existence.

m alia atten” sal BB at

17

D. The Second Circuit's Expansion of

Point Source Regulations will Add

Substantially to the Costs of

Production, Rendering Farm Practices

and Businesses Uneconomical.

The direct costs of compliance with the Second

Circuit's expanded point source regulations are obvious:

permitting fees, legal fees, laboratory fees, engineering fees,

monitoring activities and recordkeeping. As applied to

modern dairy farms, the costs of these efforts, by any

measure, will be substantial. For instance, daily monitoring

and recordkeeping of the waste produced by 100 animals and

subsequently disbursed on 100 acres of land (an average or

even small farm in today's agriculture) would involve a great

deal of time and voluminous records.

The not-so-apparent costs of regulating the application

of animal waste to cropland as a point source are, however,

even more substantial. Given the Second Circuit's

unwillingness to accept Congress’ agricultural stormwater

exemption, producers could only hope to avoid the point

source characterization of rain-driven runoff by applying

manure during extended periods of dry weather. Producers

would likely be required to possess increased storage capacity

and twice the equipment in order to apply animal waste

during these limited windows of permissible application. For

the remainder of the year, the substantial additional

investments in equipment would lie idle. Even then, a

subsequent rainfall could result in what the Second Circuit

would characterize as a point source discharge. Similarly, the

additional time required to implement new production

methods and ensure compliance will substantially increase

labor costs. Finally, insurers and lenders in the agricultural

sector are watching with a close eye and are concerned that

18

the costs of insurance and credit will rise as a result of the

Second Circuit's decision.

The Second Circuit's imposition of point source

permitting will add substantially to the costs of recycling

manure produced on the farm. These added costs or the

alternate cost of disposal and purchase of substitute chemical

fertilizers will place extreme financial pressures on an

industry already working on reduced margins.

Il, THIS CASE PROVIDES AN APPROPRIATE

CONTEXT FOR THIS COURT TO ADDRESS

THE IMPORTANT QUESTIONS PRESENTED

BY THE PETITION.

The impacts of the Second Circuit holding in this case

will be felt both on the farm and in surrounding local and

state economies. Costs of regulatory compliance will further

erode the diminishing operating margins realized by dairy

farmers. The mandated permitting of all manure spreading

vehicles and cropland will substantially add to operating costs.

The broad and extreme interpretation of the concentrated

animal feeding operation provision will force the industry

toward smaller, less efficient and more costly operations.

The refusal to recognize the agricultural stormwater

exemption will place ail manure application processes at risk

due to the inability to accurately predict or control weather.

The loss of farms and farm production that will result will

impact local economies dependant upon their agricultural tax

base and the agricultural multiplier to support their

economies. In addition, there will be a cost to be paid by the

consumer, who has come to know, depend upon and demand

low-cost, high-quality food.

ee ee ee

19

It is precisely for these reasons that Congress chose to

regulate the defuse discharges associated with agricultural

practices as nonpoint discharges to be controlled through state

and lecal land use decisions. It is also precisely for these

reasons that the point source discharge and concentrated

animal feeding operation definitions should be interpreted

consistent with viable agricultural practices and express

Congressional mandates. Congress adopted the agricultural

stormwater discharge exemption for legitimate and practical

reasons. The Second Circuit should not be allowed to

override Congressional policy through tortured interpretations

of clear and unequivocal terms. This is clearly an occasion

for judicial restraint -- not judicial legislation.

CONCLUSION

For the reasons stated, the Northeast Dairy Producers

Association respectfully requests that this Court grant

certiorari.

March 29, 1995

Respectfully submitted,

George H. Lowe, Esq.

Counsel of Record

H. Dean Heberlig, Jr., Esq.

Thomas M. Shephard, Esq.

Bond, Schoeneck & King, LLP

One Lincoln Center

Syracuse, New York 13202

(315) 422-0121

Counsel for Northeast Dairy

Producers Association

APPENDIX A

CONSENT OF ALL PARTIES TO THE

FILING OF AN AMICUS CURIAE BRIEF BY

THE NORTHEAST DAIRY PRODUCERS

ASSOCIATION IN SUPPORT OF

PETITIONERS

MAYER, BROWN & PLATT

eaRuUN 190 SOUTH LA SALLE STREET 3) a-7@2-0800

ervesdis TELEX 180006

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HOUSTON CHICAGO. ILLINOIS 60603-344' 318-700-771"

LOS ANGELES

naw vor*

TOoxYO

WANG TCN

February 6, 1995

Thomas Shephard, Esq.

Bond, Schoneck & King

1 Lincoln Center

Syracuse, NY 13202

Dear Tom:

I hereby consent to the filing of an amicus brief on behalf

of the Northeast Dairy Producers Association, et Bae in support

of nt nig eee in soubbyiew Farm. inc. Vv.

%

Yours truly,

eg we

MD or

Counsel of Record

for the Petitioner

TSB:am

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7894023 ,2,3,4,5)5

Woods, Oviatt, Gilman,

Sturman G& Clarke ssome: son or von ae

Writer's Direct Dial Number: 2 Seam Seems, Sot Floor

Rotasamen Maw York 144) 4

(716) 987-2810

March 21, 1995

Thomas M. Shephard, Esq.

Bond, Schoeneck & King, LLP

One Lincoln Center

Syracuse, New York 13202-1355

Re: Concerned Area Residents for the Environment, et al

v. Southview Farm et ano

Dear Mr. Shephard:

I am in receipt of your letter, dated March 20, 1995, in

connection with the above-referenced matter.

Please be advised that, on behalf of the plaintiffs, I hereby

consent to your filing an amicus brief on behalf of the Northeast

4 Dairy Producers Association. I am enclosing a signed copy of this

a letter, as per your request.

truly yours,

Dan O'Brien

DOB: es

Enclosure

BonbD, SCHOENECK & KING, LLP

RNAV ERE LARS LAME TY PROP

ATTORNEYS AT LAW

BOMB. SCHOENECH & KING. LiF OME LINCOLN CENTER SOO. BCNHSO MOO & Mime Pa

& ROQSTERBO UTED SYRACUSE, NEW YORK 13203-1355 Stree

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Donald W. O'Brien, Jr., Esa.

Woods, Oviatt, Gilman.

Surman & Clarke

44 Exchange Street

Rochester, New York 14614

Re: Southview Farm and Richard H. Popp v.

Concerned Area Residents for the Environment. et al.

Dear Mr. O'Brien:

On behalf of the Northeast Dairy Producers Association, we request your

consent, as attorney for Respondents, Concerned Area Residents for the Environment

("C.A.R.E.”), to file a brief as amicus curiae in the above-noted matter. Please signify your

consent to the filing of an amicus brief by the Northeast Dairy Producers Association by

Signing on the line provided below and return one copy of this lemer to me at the address listed

above.

Please cail if you have any quesuons. Thank you for your assistance in this

Very truly yours,

BOND, SCHOENECK & KING, LLP

~~

By: Gia Ne a

Thomas M. Shephard ~

TMS/cma

Donald W. O'Brien, jr., Esq.

March 20, 1995

Page 2

Consent of Respondents, C.A.R.E., to the filing of an amicus curiae brief by the Northeast

Dairy Producers Association

i \ a

. By: L) Pore <a CA

Donald W. O'Brien, Jr.

Woods, Oviatt, Gilman, Surman

& Clarke

Attomeys for Respondents, C.A.R.E.

sitet aaa aa