UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

FOOD & WATER WATCH; SNAKE No. 20-71554 RIVER WATERKEEPER, INC., Petitioners, Environmental Protection Agency v.

U.S. ENVIRONMENTAL ORDER AND PROTECTION AGENCY, OPINION Respondent.

On Petition for Review of an Order of the Environmental Protection Agency

Argued and Submitted May 6, 2021 Portland, Oregon

Filed December 16, 2021

Before: William A. Fletcher and Michelle T. Friedland, Circuit Judges, and Frederic Block,* District Judge.

Order; Opinion by Judge W. Fletcher

* The Honorable Frederic Block, United States District Judge for the Eastern District of New York, sitting by designation. 2 FOOD & WATER WATCH V. USEPA

SUMMARY**

Clean Water Act

The panel granted a petition for panel rehearing, withdrew the opinion filed September 16, 2021, and replaced it with a superseding opinion that granted a petition for review brought by environmental organizations challenging a National Pollutant Discharge Elimination System (“NPDES”) Permit issued by the Environmental Protection Agency (“EPA”) for Concentrated Animal Feeding Operations (“CAFOs”) in Idaho.

The Clean Water Act prohibits the discharge of any pollutant by any person from any point source into the navigable waters of the United States except when the discharge is authorized by a permit issued under the NPDES. CAFOs house, feed, and raise thousands of animals in confined locations, and they generate animal manure, which can pose substantial risks to the environment and public health. Manure is typically stored in lagoons, and animal waste that leaks from lagoons can reach groundwater that can, in turn, reach navigable waters. The EPA has regulated CAFOs since the mid-1970s. The EPA regulates both production areas and land-application areas of CAFOs. Production areas include animal confinement areas, manure storage areas including lagoons, raw materials storage areas, and waste containment areas. Land-application areas are fields where manure, litter, and process wastewater are applied as fertilizer.

** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. FOOD & WATER WATCH V. USEPA 3

The panel held that the petitioners’ challenge was timely. The parties agreed that petitioners challenged the Idaho Permit within 120 days of the issuance. The panel rejected the EPA’s contention that the Permit largely relied on a 2003 Rule and that the petition was therefore untimely.

The panel agreed with petitioners’ contention that the Permit lacked sufficient monitoring provisions to ensure compliance with the Permit’s “zero discharge” requirements for both production and land-application areas, and therefore, it was arbitrary, capricious, and an abuse of discretion, and not in accordance with the law. The statutory and regulatory framework gives discretion to the EPA in crafting appropriate monitoring requirements for each NPDES permit, but the EPA’s discretion is not unlimited.

Concerning production areas, the panel held the Permit had sufficient monitoring requirements for above-ground discharges from production areas. The CAFOs were required to perform daily inspections, and these mandated inspections were, in effect, monitoring requirements. The panel deferred to the EPA’s expertise, and held that these provisions were sufficient to ensure compliance with the Permit’s zero- discharge effluent limitations from production areas.

The panel held that th