Sierra Club Mackinac Chapter v. Deq
| Decision Date | 15 January 2008 |
| Docket Number | Docket No. 269181. |
| Citation | 277 Mich. App. 531,747 N.W.2d 321 |
| Parties | SIERRA CLUB MACKINAC CHAPTER, Petitioner-Appellant, v. DEPARTMENT OF ENVIRONMENTAL QUALITY, Respondent-Appellee. |
| Court | Court of Appeal of Michigan — District of US |
Hicks, Mullett & Gregg, PLLC (by Liisa R. Speaker), Lansing, and Field Jerger, LLP (by Scott Jerger), Portland, OR, for the petitioner.
Michael A. Cox, Attorney General, Thomas L. Casey, Solicitor General, and Alan F. Hoffman, Assistant Attorney General, for the respondent.
Before: WHITBECK, C.J., and TALBOT and ZAHRA, JJ.
Petitioner Sierra Club Mackinac Chapter (the Sierra Club) appeals by leave granted the trial court's order affirming a declaratory ruling issued by the Department of Environmental Quality (DEQ). The DEQ issued the declaratory ruling as a result of administrative proceedings brought by the Sierra Club challenging the DEQ's administration of certain elements of the Federal Water Pollution Control Act,1 commonly known as the Clean Water Act.
This case presents three issues for our consideration. First, we must consider whether the Sierra Club properly sought judicial review of the DEQ's declaratory ruling in state court. Second, we must consider whether the discharge rates of a concentrated animal-feeding operation's (CAFO) nutrient management plan are "effluent limitations" as the Clean Water Act defines them. And third, if we conclude that such nutrient management plans are effluent limitations, then we must consider whether the DEQ must include the nutrient management plan in the terms of the general permit itself, subject to public review and comment before the DEQ approves the permit.
With respect to the first issue, we conclude that the Sierra Club properly sought judicial review of the DEQ's ruling in state court. Under the circumstances here, state court, rather than federal court, is the proper forum for review of a state agency's declaratory ruling. Regarding the second issue, we conclude that the discharge rates of a CAFO's nutrient management plan are effluent limitations, as the Clean Water Act defines them. We conclude that such discharge rates are effluent limitations because they affect the rates of discharge from a point source into navigable waters. Therefore, in the interest of maintaining the biological integrity of the nation's navigable waters, such discharge rates must be subject to the DEQ's meaningful review. Regarding the third issue, because the Clean Water Act requires public participation in the development, revision, and enforcement of any effluent limitation, we conclude that the DEQ must include a CAFO's nutrient management plan in the terms of the general permit. Such CAFO nutrient management plans will therefore be subject to public review and comment before the DEQ approves the permit. Accordingly, we reverse and remand.
This case concerns the application and construction of § 301 of the Clean Water Act.2 The Clean Water Act is a federal regulatory statute that is designed "to restore and maintain the chemical, physical, and biological integrity of the Nation's waters."3 The Clean Water Act prohibits the "discharge of any pollutant" into "navigable waters" from any "point source," except when authorized by a permit issued under the National Pollutant Discharge Elimination System (NPDES).4 The federal Environmental Protection Agency (EPA) or the states, pursuant to federally approved permit systems within their jurisdictions, issue NPDES permits for discharges into navigable waters.5 State discharge standards and limitations cannot be less stringent than the federal standards and limitations.6
The Clean Water Act defines "point source" as "any discernible, confined and discrete conveyance, including but not limited to any pipe, ditch, channel, tunnel, conduit, well, discrete fissure, container, rolling stock, concentrated animal feeding operation, vessel or other floating craft, from which pollutants are or may be discharged."7 The "point source" of pollutants at issue here is a concentrated animal feeding operation or "CAFO."8 The Clean Water Act defines a CAFO by a prescribed number of animals that it stables or confines.9 A "large CAFO" houses hundreds or thousands of livestock.10 According to the Sierra Club, confined livestock and poultry operations in the United States—198 in Michigan—generate millions of tons of manure and waste each year, more than three times the raw waste generated by humans in the United States.
In an effort to dispose of the enormous amounts of liquid and solid waste generated at CAFOs, many CAFO owners and operators apply manure as fertilizer to agricultural fields adjacent to the confinement facilities.11 Although nutrients in the manure can act as a fertilizer when CAFO owners or operators properly apply it, when such owners or operators excessively or improperly apply it, manure has a number of potentially harmful pollutants that can infiltrate surface and ground waters.12
In 1973, the EPA delegated authority to Michigan to administer its own NPDES program. Under the provisions of Michigan's Natural Resources and Environmental Protection Act (NREPA) relating to protection of water resources,13 the MDEQ is responsible for issuing NPDES permits in Michigan and ensuring that those permits comply with applicable federal law and regulations. Every NPDES permit must set forth effluent (liquid waste) limitations, which are "restriction[s] .... on quantities, rates, and concentrations of chemical, physical, biological, and other constituents which are discharged from point sources into navigable waters[.]"14
In 2003, to address water pollution associated with improper or excessive application of manure by CAFOs, the EPA promulgated the "CAFO Rule,"15 which required that all CAFO owners or operators either (1) apply for an individual NPDES permit or (2) submit a notice of intent for coverage under a NPDES general permit.16 To receive a permit, in addition to the generally applicable NPDES permit requirements, CAFOs must satisfy various specific conditions, including developing and implementing a nutrient management plan.17 A nutrient management plan is a plan to manage the nutrients, that is, manure, litter, and process wastewater, that a CAFO puts on its agricultural fields.
According to the DEQ, the federal CAFO Rule "set forth a framework for states and other permitting authorities to use as a baseline for the development of their own CAFO permitting programs." In light of the changes to the federal scheme, Michigan promulgated its own administrative rules specific to the NPDES for CAFOs,18 which the EPA reviewed. Like its federal counterpart, Michigan's Administrative Code requires all CAFO owners or operators "to apply either for an individual NPDES permit, or a certificate of coverage under an NPDES general permit, unless the owner or operator has received a determination from the department, made after providing notice and opportunity for public comment, that the CAFO has `no potential to discharge ....'"19 Like the federal system, the DEQ requires that Michigan CAFOs develop and implement comprehensive nutrient management plans.20
In February 2005, a federal court examined and partially vacated the federal CAFO Rule. In Waterkeeper Alliance Inc v. United States Environmental Protection Agency, the United States Court of Appeals for the Second Circuit addressed how the EPA [was] handling federal nutrient management plans. Specifically, the petitioners in Waterkeeper, a group of concerned citizens and environmental interest groups, argued that the federal "CAFO Rule was unlawful because: (1) it empower[ed] NPDES authorities to issue permits to Large CAFOs in the absence of any meaningful review of the nutrient management plans those CAFOs have developed; and (2) it fail[ed] to require that the terms of the nutrient management plans be included in the NPDES permits."21 After extensive analysis of the regulations and the Clean Water Act, the Waterkeeper court agreed with the petitioners and found, in relevant part, that the CAFO Rule (1) "fails to require that permitting authorities review the nutrient management plans developed by Large CAFOs before issuing a permit that authorizes land application discharges," (2) fails to require the inclusion of nutrient management plans in NPDES permits, and (3) "violates the Clean Water Act's public participation requirements" by "effectively shield[ing nutrient management plans] ... from public scrutiny and comment."22
Underlying Waterkeeper's second and third findings was the conclusion that under the plain language of the Clean Water Act, the terms of each nutrient management plan were "effluent limitations."23 With respect to the first finding, the court reasoned that "[b]y not providing for permitting authority review of these application rates, the CAFO Rule fails to adequately prevent Large CAFOs from `misunderstanding or misrepresenting' the application rates they must adopt in order to comply with state technical standards."24 In other words, "[t]he CAFO Rule does not ensure that the Large CAFOs will, in fact, develop nutrient management plans—and waste application rates—that comply with all applicable effluent limitations and standards."25 As the court observed, the Clean Water Act "demands regulation in fact, not only in principle."26
On June 11, 2004, the DEQ issued a general permit, entitled General Permit No. MIG010000 (General Permit I), for Michigan CAFO owners based on the federal CAFO Rule and state administrative rules governing the NPDES program. According to the DEQ, it issues general permits whenever it determines that a specific category of discharges is so similar in type and quality that one permit will provide sufficient control over any discharge in that category. The DEQ...
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...(Ky. 2005): 16.5(3) MICHIGAN__________________________________________________________ Sierra Club Mackinac Ch. v. Dep't of Envtl. Qual., 747 N.W.2d 321 (Mich. Ct. App. 2008): 12 app. B Sierra Club Mackinac Ch. v. Dep't of Envtl. Qual., 766 N.W.2d 857 (Mich. 2009): 12 app. B MINNESOTA______......