Concerned Area Residents for the Env't v. Southview Farm - 34 F.3d 114 (2d Cir. 1994)

Rule:

The Clean Water Act of 1977, 33 U.S.C.S. §§ 1251 et seq. 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.S. § 1311(a). A pollutant includes solid waste, sewage, biological materials, and agricultural waste discharged into water. 33 U.S.C.S. § 1362(6). A "discharge" is any addition of any pollutant to navigable waters from any point source. 33 U.S.C. S. § 1362(12). The term "point source" includes any discernible, confined and discrete conveyance, including but not limited to any concentrated animal feeding operation. This term does not include agricultural stormwater discharges and return flows from irrigated agriculture. 33 U.S.C.S. § 1362(14).

Facts:

Plaintiff citizens sued defendant dairy farm, asserting a claim for trespass and alleging that defendant violated the Clean Water Act of 1977 (CWA), 33 U.S.C. §§ 1251 et seq., through its liquid manure spreading operation. A jury found that defendant was guilty of five CWA violations and trespass. The trial court granted judgment to defendants as a matter of law on the CWA violations, holding that the defendant did not operate a concentrated animal feeding operation (CAFO) within the meaning of the CWA, and was thus, subject to the agricultural exemption. The trial court let the trespass verdict stand. Plaintiffs appealed.

Issue:

Was the defendant’s liquid manure spreading operation a point source within the meaning of the Clean Water Act of 1977, and therefore, not subject to the agricultural exemption? 

Answer:

Yes.

Conclusion:

The court concluded that the trial court erred in deciding that defendant did not operate a concentrated animal feeding operation (CAFO) within the meaning of the CWA. The CAFO vegetation criteria, found in 40 C.F.R. 122.23 (b)(1), applied to the animal lot, not defendant's adjoining farm acreage. Therefore, defendant's CAFO could be defined as a point source under the CWA and was not an agricultural nonpoint source operation, exempted from federal regulation under the § 208 planning process, 33 U.S.C.S. § 1288. Accordingly, the judgment setting aside the jury's verdict was reversed and remanded.