Government-issued pollution permits must publicly detail waste-management plans

• Animal waste-management plans for large farms must be listed on pollution permits to ensure public scrutiny in enforcing the Clean Water Act, a federal appellate court ruled.

March 10, 2005 — The federal Clean Water Act can be adequately enforced only when animal waste-management plans for corporate farms are made public, the U.S. Court of Appeals (2nd Cir.) decided, voiding Environmental Protection Agency water-pollution guidelines.

The guidelines shroud plans for how large farms manage their animals’ waste, a clear violation of the Clean Water Act, the three-judge appellate panel in Manhattan ruled Feb. 28. The case was never heard by a lower court because disputes over the act are automatically heard in federal appellate court.

In 2003, the EPA enacted a rule governing large farms that pollute water when nitrogen and phosphorus from animal feces seeps into waterways, encouraging algae growths that hoard oxygen needed by plants and fish. While most water pollution permits list specific pollutant limits, the new rule entrusted farmers to develop and implement their own waste-management plans without listing their terms on publicly available permits.

Environmental groups including the Waterkeeper Alliance and the Natural Resources Defense Council sued. NRDC attorney Nancy K. Stoner said that the groups argued that it is not sufficient to say large farms have to design their own permits. “That’s not what the Clean Water Act requires that the public have access to. They actually have to have access to the terms of the permits,” she said.

The EPA argued that the forced creation of the plans satisfied the act’s pollution-limit requirements and that making the details public was unnecessary.

Judge Robert A. Katzmann, writing for a unanimous three-judge panel, disagreed with EPA. The requirement to develop a waste-management plan is a pollution restriction only insofar as its terms actually impose restrictions, he wrote. To say that the order to create a plan alone satisfies the act’s requirement that permits be issued with explicit limitations “is to allow semantics to torture logic,” he concluded.

The act “unequivocally and broadly” declares that public participation in its enforcement “shall be provided for, encouraged, and assisted by” the EPA, Katzmann wrote. By not requiring that the waste-management plans be detailed in government pollution permits, the rule created an information vacuum that crippled the public’s ability to comment on a permit’s application or enforcement, he said. “This is unacceptable,” he wrote.

Stoner said publicizing pollution limits helps public enforcement. Sometimes, permit compliance is “verifiable from outside the [farm] facility” by average citizens, she said, “like were they applying manure during rain . . . or were they applying manure within an area along a stream?'”

The EPA must now change its regulations to implement the court’s ruling, Stoner said. “What exactly will EPA do to make the permits available to the public, the court doesn’t say, it just says they have to do something. So they could put them on a Web site, or they could make them available by mail.”

Stoner noted that other permits have been made public in the Federal Register.

(Waterkeeper Alliance, Inc v. EPA; Counsel: Eric E. Huber; New York, N.Y.) — RL

© 2005 The Reporters Committee for Freedom of the Press

Return to: RCFP Home; News Page