     Case: 08-61093 Document: 00511411102 Page: 1 Date Filed: 03/15/2011




          IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT   United States Court of Appeals
                                                  Fifth Circuit

                                               FILED
                                                               March 15, 2011

                                No. 08-61093                   Lyle W. Cayce
                                                                    Clerk

NATIONAL PORK PRODUCERS COUNCIL; AMERICAN FARM BUREAU
FEDERATION; OKLAHOMA PORK COUNCIL; UNITED EGG
PRODUCERS; NORTH CAROLINA PORK COUNCIL; NATIONAL
CHICKEN COUNCIL; U.S. POULTRY & EGG ASSOCIATION; DAIRY
BUSINESS ASSOCIATION INC; NATIONAL MILK PRODUCERS
FEDERATION,

                                         Petitioners
v.

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY,

                                         Respondent

NATURAL RESOURCES DEFENSE COUNCIL, INC; SIERRA CLUB;
WATERKEEPER ALLIANCE ,

                                         Intervenors




                            Transferred from the
                 Judicial Panel on Multi-District Litigation


Before BARKSDALE, STEWART, and SOUTHWICK, Circuit Judges.
CARL E. STEWART, Circuit Judge:
      In 2003, the Environmental Protection Agency (EPA) revised its
regulations, implementing the Clean Water Act’s (CWA or the Act) oversight of
Concentrated Animal Feeding Operations (CAFOs). Several parties challenged
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                                     No. 08-61093

the 2003 revisions (hereinafter the 2003 Rule), and the Second Circuit reviewed
the challenges in Waterkeeper Alliance, Inc. v. Environmental Protection Agency,
399 F.3d 486 (2d Cir. 2005). In 2008, the EPA, responding to Waterkeeper,
revised its regulations (hereinafter the 2008 Rule or the Rule). Subsequently,
the Farm Petitioners1 jointly with the Poultry Petitioners 2 filed petitions for
review of the 2008 Rule with this court and the Seventh, Eighth, Ninth, Tenth,
and D.C. Circuits. Shortly after the issuance of the 2008 Rule, the EPA sent
guidance letters to members of Congress and to a CAFO executive (hereinafter
the EPA Letters or guidance letters). The Poultry Petitioners filed a petition for
review in this Circuit, challenging the EPA’s procedures for issuing rules that
the Poultry Petitioners allege were final.         These petitions for review were
consolidated by the Judicial Panel on Multi-district Litigation (JPML), pursuant
to 28 U.S.C. § 2112(a)(3), and this court was randomly selected to review the
parties’ challenges.     Subsequently, the Environmental Intervenors 3 filed a
motion to intervene in support of the EPA’s position. Also, the EPA filed a
motion to dismiss the Poultry Petitioners’ challenges to the guidance letters. We
GRANT the petitions in part, DENY the petitions in part, and GRANT the EPA’s
motion to dismiss.
                                I. BACKGROUND
      At issue here is the EPA’s regulation of animal feeding operations (AFOs).
AFOs are facilities that house, raise, and feed animals until they are ready for

      1
        The “Farm Petitioners” are the National Pork Producers Council, American Farm
Bureau Federation, United Egg Producers, North Carolina Pork Council, National Milk
Producers Federation, Dairy Business Association, Inc., Oklahoma Pork Council, National
Chicken Council, and U.S. Poultry & Egg Association.
      2
        The “Poultry Petitioners” are the National Chicken Council, and U.S. Poultry & Egg
Association. Although these parties are also “Farm Petitioners,” the arguments made in the
Poultry Petitioners’ brief apply only to them and not the other Farm Petitioners.
      3
        The “Environmental Intervenors” are the Natural Resource Defense Council, Sierra
Club, and Waterkeeper Alliance.

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                                       No. 08-61093

transport to processing facilities that prepare meat for shipment and, eventually,
consumption. Because these facilities house hundreds and sometimes thousands
of animals in confined spaces, they produce millions of tons of animal manure
every year.4 The management of this manure involves the collection, storage,
and eventual use of the manure’s nutrients as fertilizer.5                     Following its
collection, the manure is typically transported to an on-farm storage or
treatment system.6 Treated manure effluent or dry litter (chicken waste) is
typically applied to cropland as fertilizer.7 This fertilizing process is called land
application.8
       Because the improper management of this waste can pose a significant
hazard to the environment, the EPA focuses much of its attention on regulating
certain AFOs that meet the EPA’s definition of a CAFO.9 According to EPA
regulations, CAFOs are facilities where “[a]nimals . . . have been, are, or will be
stabled or confined and fed or maintained for a total of 45 days or more in any
12-month period . . . .”         40 C.F.R. § 122.23(b)(1)(i).         Our analysis of the
petitioners’ challenges to the 2008 Rule necessitates a discussion of the statutory
and regulatory scheme underlying the EPA’s oversight of CAFOs.


       4
        Sara R. Reichenauer, Issuing Violations Without Tangible Evidence: Computer
Modeling for Clean Water Act Enforcement, 95 IOW A L. REV . 1011, 1019 (2010).
       5
         Thomas R. Head, III, Local Regulation of Animal Feeding Operations: Concerns,
Limits, and Options for Southeastern States, 6 ENVTL . LAW . 503, 515 (Feb. 2000) (“In
particular, animal waste must be stored while awaiting disposal. Waste typically is stored in
large open-air tanks or anaerobic lagoons, which can be used to treat as well as store waste.”).

       6
           Id.
       7
           Id. at 515–16.
       8
           Id. at 516.
       9
        Reichenauer, 95 IOW A L. REV . at 1019–20 (“Data suggests that agriculture is the most
harmful source to our nation’s waters, causing the EPA to focus much of its attention on
agriculture entities, specifically CAFOs and potential CAFOs.”).

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A. Statutory Background
       In 1948, Congress enacted the Federal Water Pollution Control Act
(FWPCA).10 FWPCA encouraged states to enact uniform laws to combat water
pollution, recognizing “that water pollution control was primarily the
responsibility of state and local governments.”11 The state-run regulation of
discharges “involved a complex process in which the government was required
to trace in-stream pollution back to specific discharges, and, given the difficulty
of this task, enforcement was largely nonexistent.”12 The federal government’s
power to curtail water pollution was also limited under FWPCA. Thus, federal
action against a discharger could only proceed “with the approval of state
officials in the state where the discharge originated and after a complicated
series of notices, warnings, hearings, and conference recommendations.” 13 In
1972, FWPCA was amended to replace the state-run regulation of discharges
with an obligation to obtain and comply with a federally-mandated National
Pollutant Discharge Elimination System (NPDES) permit program. 14 These
amendments also transformed FWPCA into what is known today as the CWA.15
       The NPDES permit program, which is primarily articulated in 33 U.S.C.
§ 1342, allows the EPA to “issue a permit for the discharge of any pollutant, or
combination of pollutants . . . .” 33 U.S.C. § 1342(a)(1). To be clear, the CWA


       10
         Jeffrey M. Gaba, Generally Illegal: NPDES General Permits Under the Clean Water
Act, 31 HARV . ENVTL . L. REV . 409, 413 (2007).
       11
         Kenneth M. Murchison, Learning from More than Five-and-a-Half Decades of Federal
Water Pollution Control Legislation: Twenty Lessons for the Future, 32 B.C. EN VTL . AFF . L.
REV . 527, 530–31 (2005).
       12
            Gaba, 31 HARV . ENVTL . L. REV . at 414.
       13
            Murchison, 32 B.C. ENVTL . AFF . L. REV . at 531.
       14
            Id. at 541–42.
       15
            Id. at 536 n.71.

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prohibits the discharge of pollutants into navigable waters. 33 U.S.C. § 1311.
However, if a facility requests a permit, it can discharge within certain
parameters called effluent limitations and will be deemed a point source. 33
U.S.C. §§ 1342, 1362(14).          Accordingly, the point source will be regulated
pursuant to the NPDES permit issued by the EPA or one of 46 States authorized
to issue permits.16       Relevant here, the definition of point source excludes
“agricultural stormwater discharges.” Id. § 1362(14). This occurs, for example,
when rainwater comes in contact with manure and flows into navigable waters.
See, e.g., Fishermen Against Destruction of Env’t, Inc. v. Closter Farms, Inc., 300
F.3d 1294, 1297 (11th Cir. 2002) (citing Concerned Area Residents for the Env’t
v. Southview Farm, 34 F.3d 114, 121 (2d Cir. 1994) (holding that “agricultural
stormwater discharge” exemption applies to any “discharges [that] were the
result of precipitation”)).
       If a CAFO discharges without a permit, it is strictly liable for discharging
without a permit and subject to severe civil and criminal penalties. 33 U.S.C.
§ 1319. For example, monetary sanctions can accrue at a rate of up to $50,000
per violation, per day, for criminally negligent violations, or up to $100,000 per
violation, per day, for repeated, knowing violations. Id. Criminal violators may
be subject to imprisonment. 40 C.F.R. § 122.41(a)(2).
B.     CAFO’s Regulatory Background
       The EPA enacted the first set of CAFO regulations in 1976. Since that


       16
          Currently, 46 states are authorized to administer their own permitting programs for
the discharge of pollutants into navigable waters in lieu of the federally administered NPDES
program. See ST A T E NPDES PR O G R A M AU T H O R I T Y , available at
http://www.epa.gov/npdes/images/State_NPDES_Prog_Auth.pdf. Where a state has been
authorized to administer its own program, the state becomes the NPDES permit-issuing
agency in lieu of the EPA. For these state programs, the EPA retains oversight and veto
authority, as well as authority to enforce any violation of the CWA or of a state-issued
discharge permit. See 33 U.S.C. § 1342(c), (d), and (i). For purposes of this opinion, references
to the EPA’s implementation of the CWA or the EPA’s regulations also refers to authorized
states’ implementation of the CWA.

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time, the substance of these regulations, regarding CAFOs, has changed only
twice, in 2003 and 2008. We discuss the applicable portions of these regulations
below.
      1.     1976 Regulations
      The 1976 regulations specified that CAFOs that wanted to discharge were
required to have a permit primarily based on the number of animals housed in
the facility. All large CAFOs, those with 1,000 or more animals, were required
to have an NPDES permit to discharge pollutants. 41 Fed. Reg. 11,458, 11,458
(Mar. 18, 1976).17    Medium CAFOs, those with 300 to 1,000 animals, were
required to have a permit if they emitted certain discharges. Id. Finally, most
small CAFOs, those with 300 animals or less, generally were not required to
have a permit. Id. However, the EPA could determine that a permit was
required on a case-by-case basis if a small CAFO emitted certain discharges
after an onsite inspection and notice. Id. Under this regulatory scheme, if a
discharging CAFO was required to have a permit, but did not have one, it would
be subject to civil or criminal liability.
      The 1976 regulatory scheme was in place for almost thirty years.
However, after being sued for failing to revise the effluent limitations for CAFO
operations, the EPA revised its regulations “to address not only inadequate
compliance with existing policy, but also the ‘changes that have occurred in the
animal production industries.’” Waterkeeper, 399 F.3d at 494 (citing 66 Fed. Reg.
2960, 2972 (Jan. 12, 2001)). Subsequently, in the 2003 Rule, the EPA shifted
from a regulatory framework that explained what type of CAFO must have a
permit to a broader regulatory framework that explained what type of CAFO
must apply for a permit.
      2.     The 2003 Rule & Waterkeeper

      17
         For purposes of clarity, we refer to overruled regulations or regulations being
challenged using the Federal Register, as opposed to the Code of Federal Regulations.

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        Under the 2003 Rule, all CAFOs were required to apply for an NPDES
permit whether or not they discharged. 68 Fed. Reg. 7176, 7266 (Feb. 12, 2003).
Specifically, every CAFO was assumed to have a “potential to discharge” and
had to apply for an NPDES permit. Id. at 7266–67. However, an option built
into the Rule permitted a CAFO to request from the EPA a “no potential to
discharge” determination. Id. If the CAFO proved that it did not have the
potential to discharge, the CAFO was not required to seek a permit. Id. The
2003 Rule also expanded the definition of exempt “agricultural stormwater
discharge” to include land application discharge, if the land application
comported with appropriate site-specific nutrient management practices. Id. at
7198.    However, if the land application was not in compliance with those
practices, the land application discharge would be an unpermitted discharge in
violation of the CWA. Id. at 7197.
        Furthermore, the 2003 Rule created a mandatory duty for all CAFOs,
applying for a permit, to develop and implement a site-specific Nutrient
Management Plan (NMP). Id. at 7176. An NMP required a CAFO to establish
“best management practices” (BMPs). Id. at 7213–14. The BMPs were designed
to ensure adequate storage of manure and wastewater, proper management of
mortalities and chemicals, and appropriate site-specific protocols for land
application. Id. at 7176. The BMPs were neither reviewed by the EPA nor were
they included in the terms of a CAFO’s permit to discharge.
        In Waterkeeper, the Environmental Petitioners (Waterkeeper Alliance,
Inc., Sierra Club, Natural Resources Defense Council, Inc., and the American
Littoral Society) and the Farm Petitioners (American Farm Bureau Federation,
National Chicken Council, and the National Pork Producers Council), many of
whom are petitioners or intervenors in the present matter, challenged the 2003
Rule on several grounds.     399 F.3d at 497.     Specifically, the petitioners
challenged the 2003 Rule’s duty to apply and the type of discharges subject to

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regulation. Id. at 504.
      The Farm Petitioners asked the Second Circuit to vacate the 2003 Rule’s
“duty to apply” because it was outside of the EPA’s authority. The court agreed
and held that the EPA cannot require CAFOs to apply for a permit based on a
“potential to discharge.” Id. at 504–06. The Second Circuit explained that the
plain language of the CWA “gives the EPA jurisdiction to regulate and control
only actual discharges—not potential discharges, and certainly not point sources
themselves.” Id. at 505. In sum, the Second Circuit held that the CWA “on its
face, prevents the EPA from imposing, upon CAFOs, the obligation to seek an
NPDES permit or otherwise demonstrate that they have no potential to
discharge.” Id. at 506.
      The Environmental Petitioners took issue with the 2003 Rule’s exclusion
of agricultural stormwater discharge, resulting from land application, from the
definition of “point source discharge.” They argued that the CWA requires that
all discharges from a CAFO are point source discharges, “notwithstanding the
fact that agricultural stormwater discharges are otherwise deemed exempt from
regulation.” Id. at 507. The Second Circuit disagreed. The court explained that
the CWA is “ambiguous as to whether CAFO discharges can ever constitute
agricultural stormwater.” Id. Thus, the court examined whether the exemption
for certain land application discharges was grounded in a permissible
construction of the CWA. Id. The Second Circuit determined that congressional
intent and its precedent supported the EPA’s exclusion of agricultural
stormwater discharge, resulting from land application, from designation as a
point source. Id. at 507–09.
      The Environmental Petitioners also argued that the 2003 Rule was
unlawful because “(1) it empowers NPDES authorities to issue permits to
. . . CAFOs in the absence of any meaningful review of the [NMPs] those CAFOs
have developed; and (2) it fails to require that the terms of the [NMPs] be

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included in the NPDES permits.” Id. at 498. The Second Circuit agreed and
held that by failing to provide for EPA review of the NMPs, the 2003 Rule
violated the statutory commandments that the permitting agency must assure
compliance with applicable effluent or discharge limitations. Id. at 502–03.
        The parties also disputed “whether the terms of the [NMPs], themselves,
constitute effluent limitations that must be included in the NPDES permits.”
Id. at 502. The Second Circuit held that because the 2003 Rule failed to require
that the terms of NMPs be included in NPDES permits, the 2003 Rule violated
the CWA. The court explained that the CWA defined effluent limitation as “‘any
restriction established by a State or the Administrator on quantities, rates, and
concentrations of chemical, physical, biological, and other constituents which are
discharged from point sources . . .’” Id. at 502 (quoting 33 U.S.C. § 1362(11)).
Thus, because “the requirement to develop [an NMP] constitutes a restriction on
land application discharges only to the extent that the [NMP] actually imposes
restrictions on land application discharges[,]” the CWA’s definition of effluent
limitations encompassed an NMP. Waterkeeper, 399 F.3d at 502.
        3.      The Present Petitions for Review: The 2008 Rule
        At issue here is the 2008 Rule, the EPA’s response to the Second Circuit’s
decision in Waterkeeper. See 71 Fed. Reg. 37,744 (June 30, 2006). Also at issue
are three guidance letters issued by the EPA in response to questions raised by
members of the United States Congress and a farm executive about the 2008
Rule.        Below, we discuss in further detail the 2008 Rule and the Farm
Petitioners’ and Poultry Petitioners’ challenges to the 2008 Rule, as well as the
Poultry Petitioners’ challenge to the EPA’s issuance of the guidance letters.
                a.    The 2008 Rule
        As required by the Administrative Procedures Act (APA),18 on June 30,

        18
        The relevant portion of the APA, 5 U.S.C. § 553, requires that “[g]eneral notice of
proposed rule making shall be published in the Federal Register . . . .” Id. § 553(b).

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2006, the EPA published a notice of proposed rulemaking (hereinafter the
Proposed Rule) setting forth its response to the Second Circuit’s decision in
Waterkeeper. See 71 Fed. Reg. at 37,744. In place of the 2003 Rule’s duty to
apply for a permit, the Proposed Rule required that a CAFO owner or operator
apply for a permit only if the CAFO “discharges or proposes to discharge
pollutants”. Id. at 37,747 (internal quotation marks omitted). Furthermore, the
Proposed Rule responded to the Second Circuit’s holding about the incorporation
of NMP requirements into permits. Id. at 37,753–55. Specifically, the Proposed
Rule required that any NPDES permit issued to a CAFO include the
requirement to develop and implement an NMP, including land application
requirements. Id. at 37,551. Moreover, the NMP must be submitted, in its
entirety, with the CAFO’s permit application, must be reviewed by the agency
and the public, and must have its terms incorporated into the applicable permit
as enforceable effluent limitations. Id.
       The EPA received several hundred responses to the Proposed Rule. 73
Fed. Reg. 12,321-02, 12,324 (Mar. 7, 2008). Many of the comments asked the
EPA to specify when a CAFO “proposes” to discharge. Id. In response, on March
7, 2008, the EPA published a supplemental notice of proposed rulemaking
(hereinafter the Supplemental Proposed Rule).                See generally 73 Fed. Reg.
12,321-02. The Supplemental Proposed Rule provided that a CAFO does not



Furthermore, the Rule requires:

                After notice required by this section, the agency shall give
                interested persons an opportunity to participate in the rule
                making through submission of written data, views, or arguments
                with or without opportunity for oral presentation. After
                consideration of the relevant matter presented, the agency shall
                incorporate in the rules adopted a concise general statement of
                their basis and purpose.

Id. § 553(c).

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discharge or propose to discharge if “based on an objective assessment of the
conditions at the CAFO, that the CAFO is designed, constructed, operated, and
maintained in a manner such that the CAFO will not discharge.” Id. at 12,339.
Furthermore, if a CAFO operator makes this showing, the operator can apply for
voluntary certification. Id. The benefit of voluntary certification is that, in the
event of a discharge, an unpermitted CAFO will not be liable “for violation of the
duty to apply,” but will still be in violation of the CWA’s prohibition against
unpermitted discharges. Id.
      On November 20, 2008, the EPA published the 2008 Rule, which
incorporates the proposed regulations in the Proposed Rule and the
Supplemental Proposed Rule. See 73 Fed. Reg. 70,418 (Nov. 20, 2008). In sum,
the 2008 Rule clarifies the “duty to apply” liability scheme. Id. at 70,423. It
reiterates that CAFOs “propose to discharge” if they are “designed, constructed,
operated, or maintained such that a discharge would occur.” Id. Furthermore,
each CAFO operator is required to make an objective case-by-case assessment
of whether it discharges or proposes to discharge, considering, among other
things, climate, hydrology, topology, and the man-made aspects of the CAFO.
Id. at 70,424. It further clarifies that a CAFO can be held liable for failing to
apply for a permit, in addition to being held liable for the discharge itself. Id. at
70,426. The 2008 Rule also reiterates that certification is voluntary, but if a
CAFO does not certify, in an enforcement proceeding for failing to apply for a
permit, the CAFO would have the burden of proving that it did not propose to
discharge. Id. Finally, with regard to NMPs, the 2008 Rule restates that NMPs
are an enforceable part of an NPDES permit and clarifies that the terms of
NMPs would remain the same as the terms articulated in the 2003 Rule. Id. at
70,443.
      On December 4, 2008, the 2008 Rule became final for purposes of seeking



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judicial review. 73 Fed. Reg. at 70,418. As required by 33 U.S.C. § 1369(b),19
each of the Farm Petitioners and Poultry Petitioners20 (collectively, the Farm
Petitioners) timely filed petitions for review, challenging certain provisions of
the 2008 Rule, in various courts of appeals, namely, this court 21 and the
Seventh,22 Eighth,23 Ninth,24 Tenth,25 and District of Columbia 26 Circuits.


       19
            Section 1369 provides in relevant part:

                 (b) Review of Administrator’s actions; selection of court; fees

                 (1) Review of the Administrator’s action . . . in making any
                 determination as to a State permit program submitted under
                 section 1342(b) of this title, []in approving or promulgating any
                 effluent limitation or other limitation under section 1311, 1312,
                 1316, or 1345 of this title, [or] in issuing or denying any permit
                 under section 1342 of this title . . . may be had by any interested
                 person in the Circuit Court of Appeals of the United States for
                 the Federal judicial district in which such person resides or
                 transacts business which is directly affected by such action upon
                 application by such person. Any such application shall be made
                 within 120 days from the date of such determination, approval,
                 promulgation, issuance or denial, or after such date only if such
                 application is based solely on grounds which arose after such
                 120th day.

33 U.S.C. § 1369(b) (emphasis added).
       20
         Although the Poultry Petitioners challenge certain provisions of the 2008 Rule jointly
with the Farm Petitioners, they also filed a separate challenge to the EPA Letters. Thus, for
purposes of clarity, hereinafter, references to the Farm Petitioners refer to the Farm
Petitioners’ and Poultry Petitioners’ challenges to provisions of the 2008 Rule. References to
the Poultry Petitioners refer to the Poultry Petitioners’ separate challenge to the EPA Letters.
       21
            Nat’l Pork Producers Council v. Envtl. Prot. Agency, No. 08-61093 (5th Cir. 2008).
       22
        Dairy Bus. Ass’n Inc v. Envtl. Prot. Agency, No. 09-1574 (7th Cir. 2009); Nat’l Milk
Producers Fed’n v. Envtl. Prot. Agency, 08-4166 (7th Cir. 2008).
       23
            United Egg Producers v. Envtl. Prot. Agency, No. 08-3870 (8th Cir. 2008).
       24
            Natural Res. v. Nat’l Pork, No. 08-75023 (9th Cir. 2008).
       25
            Nat’l Pork Producers v. Envtl. Prot. Agency, No. 08-9584 (10th Cir. 2008).
       26
            N.C. Pork v. Envtl. Prot. Agency, No. 08-1387 (D.C. Cir. 2008).

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      Because an agency is required to notify the Judicial Panel on Multi-district
Litigation (JPML) if two or more petitions for review are filed that challenge an
agency’s promulgation of regulations, the EPA notified the JPML of the various
challenges. 28 U.S.C. § 2112(a)(3). Subsequently, per section 2112, this court
was randomly selected by the JPML, from the courts of appeals in which
petitions for review were filed, to address the parties’ challenges.         Id.
Accordingly, the petitions were consolidated and transferred to this court from
our sister circuits.
      On appeal, the Farm Petitioners primarily challenge the EPA’s “duty to
apply” for an NPDES permit, imposition of liability for failing to apply for a
permit, and the EPA’s regulation of a permitted CAFO’s land application.
      b.     The EPA Letters
      Shortly after the EPA issued the 2008 Rule, it issued three guidance
letters, a common practice following the issuance of complex regulations. See
generally Appalachian Power Co. v. Envtl. Prot. Agency, 208 F.3d 1015, 1020
(D.C. Cir. 2000).      On January 16, 2009, Benjamin H. Grumbles, Assistant
Administrator for the EPA’s Office of Water, sent a letter to Senator Thomas R.
Carper of Delaware; on the same day, Grumbles sent an identical letter to then-
congressperson Michael N. Castle of Delaware; and on March 4, 2009, James D.
Giattina, Director of the Water Protection Division for Region 4, sent a letter to
Jeff Smith, an executive for Perdue Farms, Inc.
      The guidance letters sent to the Delaware Congress members were in
response to their joint letter to the EPA concerning “the status of EPA’s
authorization of Delaware’s [state-run CAFO] program.” Grumbles explained
that Delaware’s CAFO program was denied status because it did not comply
with the CWA. Notably, the Delaware program requires a permit only if “a
CAFO meets the numerical animal limit, has a discharge into waters of the
state, and is in non-compliance with Delaware Nutrient Management

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Regulations.” The guidance letters further explained the EPA’s requirements
for a state-run CAFO program and that these requirements were the national
floor for these programs. They also stated that the CWA prohibits the discharge
of all pollutants by a CAFO. Moreover, “[t]he term pollutant is defined very
broadly in the CWA . . . . Potential sources of such pollutants at a CAFO could
include . . . litter released through confinement house ventilation fans.” The
guidance letters further explained that “any point source discharge of
stormwater that comes into contact with these materials and reaches waters of
the United States is a violation of the CWA unless authorized by a [permit].”
      The letter sent by Giattina was in response to questions posed by Smith,
regarding Smith’s concern that certain EPA field offices were incorrectly
interpreting the 2008 Rule. Relevant here, Smith asked whether operators of
dry litter farms need to apply for a permit “because of potential runoff from the
production area[, and if] so, are there examples of dry poultry litter operations
having a discharge?” The letter explained that all CAFOs must have permits
prior to discharging pollutants and that “pollutant” is defined broadly by the
CWA and the regulations could include litter released through confinement
house ventilation fans. The letter also discussed the agricultural stormwater
exemption, explaining that it “applies only to precipitation-related discharges
from land application areas . . . where application of manure, litter, or process
wastewater is in accordance with appropriate nutrient management practices,”
and not to “discharges from the CAFO production area.”
      As required by the APA, on April 12, 2009, within 120 days of the issuance
of the guidance letters, the Poultry Petitioners filed their petition for review,
challenging the EPA Letters. The Poultry Petitioners argue that the EPA
Letters constitute final agency actions subject to judicial review and, among
other things, were required to have undergone notice and comment per the
rulemaking procedures articulated in the APA. See 5 U.S.C. § 553. The EPA


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subsequently filed a motion to dismiss the Poultry Petitioners’ claim, arguing
that we do not have jurisdiction to hear challenges to guidance letters that are
merely articulations of current rules and regulations.
      Our analysis of the Farm Petitioners’ claims and Poultry Petitioners’
claims proceeds as follows. Part II is divided into two parts. In subpart A, we
discuss the Farm Petitioners’ challenges. We GRANT the petition in part and
DENY the petition in part. In subpart B, we address the Poultry Petitioners’
challenge to the EPA Letters. We DISMISS their petition for lack of jurisdiction
per the EPA’s motion.
                                 II. Analysis
A.    Farm Petitioners’ Challenges
      The Farm Petitioners’ challenges to the 2008 Rule can be sub-divided into
two parts. First, they effectively challenge the “duty to apply” liability scheme.
Second, they challenge the Rule’s regulation of CAFO land application
discharges. Below we address each of these challenges in turn.
      1.    Duty to Apply Liability Scheme
      The duty-to-apply liability scheme has three parts. To begin, the 2008
Rule requires CAFOs that discharge or propose to discharge to apply for an
NPDES permit—the duty to apply. If a CAFO discharges and does not have a
permit, the CAFO will not only be liable for discharging without a permit, but
also prosecuted for failing to apply for a permit—failure to apply liability.
However, a CAFO can circumvent this liability if the CAFO operator can
establish that the CAFO was designed, constructed, operated, and maintained
in a manner such that the CAFO will not discharge. The Farm Petitioners argue
that certain parts of the liability scheme are in excess of the EPA’s statutory
authority and other parts are violations of the APA.
      Our review of the Farm Petitioners’ challenges rests, for the most part, on
the Second Circuit’s determination in Waterkeeper and whether the EPA’s


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                                  No. 08-61093

actions are within the scope of its statutory authority. As such, our analysis is
guided by the principles enunciated in Chevron U.S.A., Inc. v. Natural Resources
Defense Council, Inc., 467 U.S. 837 (1984). If Congress has “directly spoken to
the precise question at issue” and “the intent of Congress is clear, that is the end
of the matter; for the court, as well as the agency, must give effect to the
unambiguously expressed intent of Congress.” Chevron, 467 U.S. at 842–43
(footnote omitted).    If the court determines that the statute is silent or
ambiguous with respect to the specific question at issue, then we consider
“whether the agency’s answer is based on a permissible construction of the
statute.” Id. at 843. We use the traditional tools of statutory construction to
determine whether Congress has spoken to the precise point at issue. Tex. Sav.
& Cmty. Bankers Ass’n v. Fed. Hous. Bd., 201 F.3d 551, 554 (5th Cir. 2000).
      We conclude that the CWA provides a comprehensive liability scheme, and
the EPA’s attempt to supplement this scheme is in excess of its statutory
authority.
             a.     Duty to Apply
      The 2003 Rule’s “duty to apply” required all CAFOs to apply for an NPDES
permit or demonstrate that they do not have the potential to discharge. 68 Fed.
Reg. at 7266.     In Waterkeeper, the Second Circuit held that the 2003 Rule’s
“duty to apply” was ultra vires because the EPA exceeded its statutory authority.
Waterkeeper, 399 F.3d at 504. The court explained that the CWA is clear that
the EPA can only regulate the discharge of pollutants.             To support its
interpretation, the Second Circuit examined the text of the Act. The court noted:
(1) 33 U.S.C. § 1311(a) of the CWA “provides . . . [that] the discharge of any
pollutant by any person shall be unlawful,” (2) section 1311(e) of the CWA
provides that “[e]ffluent limitations . . . shall be applied to all point sources of
discharge of pollutants,” and (3) section 1342 of the Act gives NPDES authorities
the power to issue permits authorizing the discharge of any pollutant or

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                                  No. 08-61093

combination of pollutants.” Waterkeeper, 399 F.3d at 504. Accordingly, the
Second Circuit concluded that
            in the absence of an actual addition of any pollutant to
            navigable waters from any point, there is no point
            source discharge, no statutory violation, no statutory
            obligation of point sources to comply with EPA
            regulations for point source discharges, and no
            statutory obligation of point sources to seek or obtain
            an NPDES permit in the first instance.

Id. at 505. The Second Circuit’s decision is clear: without a discharge, the EPA
has no authority and there can be no duty to apply for a permit.
      The EPA’s response to this part of the Waterkeeper analysis is the 2008
Rule’s requirement that CAFOs that discharge and CAFOs that “propose” to
discharge apply for a permit. We address the latter category first.
                  i.     CAFOs that Propose to Discharge
      Because the issues presented in Waterkeeper are similar to the issues
presented here, we find the Second Circuit’s analysis to be instructive and
persuasive. Accordingly, we decline to uphold the EPA’s requirement that
CAFOs that propose to discharge apply for an NPDES permit.
      At first blush it seems that the EPA, by regulating CAFOs that “propose”
to discharge, is regulating CAFOs that want to discharge. However, as the Farm
Petitioners’ counsel explained at oral argument, the EPA’s use of the term
“propose” is not the same as the common understanding of the term—“to form
or declare a plan or intention.”       W EBSTER’S T HIRD N EW I NTERNATIONAL
D ICTIONARY 1819 (8th ed. 1993). Instead, the EPA’s definition of a CAFO that
“proposes” to discharge is a CAFO designed, constructed, operated, and
maintained in a manner such that the CAFO will discharge. Pursuant to this
definition, CAFOs propose to discharge regardless of whether the operator wants
to discharge or is presently discharging. This definition thus requires CAFO
operators whose facilities are not discharging to apply for a permit and, as such,

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runs afoul of Waterkeeper, as well as Supreme Court and other well-established
precedent.
      Specifically, the Supreme Court explained:
             [T]he National Pollutant Discharge Elimination System
             [requires] a permit for the ‘discharge of any pollutant’
             into the navigable waters of the United States, 33
             U.S.C. § 1342(a). The triggering statutory term here is
             not the word ‘discharge’ alone, but ‘discharge of a
             pollutant,’ a phrase made narrower by its specific
             definition requiring an ‘addition’ of a pollutant to the
             water.

S.D. Warren Co. v. Maine Bd. of Envtl. Protection, 547 U.S. 370, 380–81 (2006).
Likewise, several circuit courts have held that the scope of the EPA’s authority
under the CWA is strictly limited to the discharge of pollutants into navigable
waters.
      Notably, in the seminal case Natural Resources Defense Council, Inc. v.
Environmental Protection Agency, 859 F.2d 156 (D.C. Cir. 1988), the D.C. Circuit
explained more than 20 years ago that the CWA “does not empower the agency
to regulate point sources themselves; rather, EPA’s jurisdiction under the
operative statute is limited to regulating the discharge of pollutants.” Id. at 170.
In Waterkeeper, the Second Circuit echoed this interpretation of the CWA and
explained that “unless there is a discharge of any pollutant, there is no violation
of the Act . . . .”   399 F.3d at 504.    More recently, in Service Oil, Inc. v.
Environmental Protection Agency, 590 F.3d 545 (8th Cir. 2009), the Eighth
Circuit reiterated the scope of the EPA’s regulatory authority and concluded that
“[b]efore any discharge, there is no point source” and the EPA does not have any
authority over a CAFO. Serv. Oil, Inc., 590 F.3d at 550.
      These cases leave no doubt that there must be an actual discharge into
navigable waters to trigger the CWA’s requirements and the EPA’s authority.
Accordingly, the EPA’s authority is limited to the regulation of CAFOs that

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                                  No. 08-61093

discharge. Any attempt to do otherwise exceeds the EPA’s statutory authority.
Accordingly, we conclude that the EPA’s requirement that CAFOs that “propose”
to discharge apply for an NPDES permit is ultra vires and cannot be upheld.
                  ii. Discharging CAFOs
      Although the CWA forecloses the EPA’s regulation of a CAFO before there
is a discharge, the question remains: Can the EPA require discharging CAFOs
to apply for an NPDES permit?        This analysis necessitates application of
Chevron’s two-step inquiry. Chevron step one requires the court to determine,
if Congress, through the CWA, has spoken directly on the issue of whether the
EPA can require a discharging CAFO to apply for a permit. Chevron, 467 U.S.
at 842–43. As there is no language in the CWA that creates a “duty to apply” for
an NPDES permit, our analysis centers on Chevron step two—whether the
regulation “is based on a permissible construction of the statute.” Id.
      We accord “deference to agencies under Chevron because of a presumption
that Congress, when it left ambiguity in a statute meant for implementation by
an agency, understood that the ambiguity would be resolved, first and foremost,
by the agency, and desired the agency (rather than the courts) to possess
whatever degree of discretion the ambiguity allows.” Tex. Clinical Labs, Inc. v.
Sebelius, 612 F.3d 771, 775 (5th Cir. 2010). However, a Chevron step two
analysis depends on “a number of factors. These include: the consistency of the
interpretation and the length of adherence to it, undisturbed by Congress; the
explicitness of the congressional grant of authority to the agency, with greater
deference in cases of more specific delegation; and the degree of agency expertise
necessarily drawn upon in reaching its interpretation.” Quarles v. St. Clair, 711
F.2d 691, 706–07 (5th Cir. 1983).
      The primary purpose of the NPDES permitting scheme is to control
pollution through the regulation of discharges into navigable waters. See 33
U.S.C. § 1342. Therefore, it would be counter to congressional intent for the

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court to hold that requiring a discharging CAFO to obtain a permit is an
unreasonable construction of the Act. In fact, the text of the Act indicates that
a discharging CAFO must have a permit. The CWA explains that discharging
without a permit is unlawful, 33 U.S.C. § 1311, and punishes such discharge
with civil and criminal penalties, 33 U.S.C. § 1319. This has been the well-
established statutory mandate since 1972. It logically follows that, at base, a
discharging CAFO has a duty to apply for a permit.
      In summary, we conclude that the EPA cannot impose a duty to apply for
a permit on a CAFO that “proposes to discharge” or any CAFO before there is an
actual discharge. However, it is within the EPA’s province, as contemplated by
the CWA, to impose a duty to apply on CAFOs that are discharging.
                b.     Failure to Apply Liability
      The 2008 Rule provides that a CAFO can be held liable for failing to apply
for a permit. The Farm Petitioners contend that the EPA does not have the
authority to create this liability. We agree. As previously noted, if Congress has
“directly spoken to the precise question at issue” and “the intent of Congress is
clear, that is the end of the matter; for the court, as well as the agency, must
give effect to the unambiguously expressed intent of Congress.” Chevron, 467
U.S. at 842–43 (footnote omitted). Here, the CWA is clear about when the EPA
can issue compliance orders,27 bring a civil suit for an injunction 28 or penalties,29
or bring criminal charges for penalties.30 Specifically, 33 U.S.C. § 1311 allows
the EPA to impose liability if it “finds that any person is in violation of any
condition or limitation which implements [violations of]”: the discharge


      27
           33 U.S.C. § 1319(a).

      28
           Id. § 1319(b).
      29
           Id. § 1319(d).
      30
           Id. § 1319(c).

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prohibition,31 certain water-quality based effluent limitations,32 national
standards of performance for new sources,33 toxic and pretreatment effluent
standards,34 the EPA’s information-gathering authority,35 provisions permitting
the discharge of specific aquaculture pollutants,36 any permit condition or
limitation,37 and provisions governing the disposal or use of sewer sludge.38
Notably absent from this list is liability for failing to apply for an NPDES
permit.
      Moreover, section 1319 is the only provision in the Act to provide for
penalties. Assuming that the punishment for failing to apply for a permit are
section 1319’s penalties, the EPA still runs up against the CWA’s clear
articulation that only certain violations of the Act can be enforced using section
1319’s penalties. See 33 U.S.C. § 1319; see, e.g., Serv. Oil, Inc., 590 F.3d at 550
(“Congress in § 1319(g)(1) granted EPA limited authority to assess
administrative monetary penalties for violations of specific statutory provisions
related to the core prohibition against discharging without a permit, or contrary
to the terms of a permit.”); Colt Indus., Inc. v. United States, 880 F.2d 1311, 1314
(Fed. Cir. 1989) (“EPA is not authorized under either the Clean Air or Clean
Water [A]cts to seek compensatory damages; it is limited to injunctive relief and


      31
           Id. § 1311.
      32
           Id. § 1312.
      33
           Id. § 1316.
      34
           Id. § 1317.
      35
           Id. § 1318.
      36
           Id. § 1328.
      37
           Id. § 1342.
      38
           Id. § 1345.

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                                  No. 08-61093

the maximum monetary penalties prescribed by 42 U.S.C. § 7413(b), and 33
U.S.C. § 1319, respectively.”). Accordingly, the imposition of “failure to apply”
liability is outside the bounds of the CWA’s mandate.
      The Eighth Circuit’s analysis in Service Oil is instructive. In that case, the
court examined whether the EPA can assess administrative penalties for failing
to apply for an NPDES permit. As the EPA argues here, it also argued in
Service Oil that section 1318, which gives the EPA its information-gathering
authority, also gives the EPA power to impose liability for failing to apply for an
NPDES permit. 590 F.3d at 550. The Eighth Circuit rejected this argument.
In concluding that the EPA cannot assess such penalties, the court commented
on the scope of the EPA’s regulatory authority. The court explained that “the
agency’s authority to assess monetary penalties by administrative proceeding is
limited to unlawful discharges of pollutants.” Id.; see also Envtl. Prot. Info. Ctr.
v. Pac. Lumber Co., 469 F. Supp. 2d 803, 826 (N.D. Cal. 2007) (finding 33 U.S.C.
§ 1342(p) does not authorize liability for “failure to apply” for NPDES permit
coverage, but only for non-compliance with permit terms).
                         *            *            *
      For more than 40 years, the EPA’s regulation of CAFOs was limited to
CAFOs that discharge. The 2003 Rule marked the first time that the EPA
sought to regulate CAFOs that do not discharge. This attempt was wholly
rejected by the Second Circuit in Waterkeeper. 399 F.3d at 504. Again, with the
2008 Rule, the EPA not only attempts to regulate CAFOs that do not discharge,
but also to impose liability that is in excess of its statutory authority. Although
Chevron makes clear that we must give deference to the agency’s interpretation
of a statute, “courts are not obliged to stand aside and rubberstamp their
affirmance of administrative decisions that they deem inconsistent with the
statutory mandate or that frustrate the congressional policy underlying a
statute.” Tex. Power & Light Co. v. FCC, 784 F.2d 1265, 1269 (5th Cir. 1986)

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(citations and internal quotation marks omitted); see also Buffalo Crushed Stone,
Inc. v. Surface Transp. Bd., 194 F. 3d 125, 128–29 (D.C. Cir. 1999) (“[D]eference
is not without limit. We will reject an agency’s interpretation if an alternative
reading is compelled by the regulations’ plain language . . . .” (citation and
internal quotation marks omitted)).
      To this end, the Supreme Court has explained: “Agencies may play the
sorcerer’s apprentice but not the sorcerer himself.” Alexander v. Sandoval, 532
U.S. 275, 292 (2001). In other words, an agency’s authority is limited to what
has been authorized by Congress. See id. Here, the “duty to apply”, as it applies
to CAFOs that have not discharged, and the imposition of failure to apply
liability is an attempt by the EPA to create from whole cloth new liability
provisions. The CWA simply does not authorize this type of supplementation to
its comprehensive liability scheme. Nor has Congress been compelled, since the
creation of the NPDES permit program, to make any changes to the CWA,
requiring a non-discharging CAFO to apply for an NPDES permit or imposing
failure to apply liability. Thus, we echo the sentiments of the Second Circuit in
Waterkeeper:
            While we appreciate the policy considerations
            underlying the EPA’s approach in the CAFO Rule,
            however, we are without authority to permit it because
            it contravenes the regulatory scheme enacted by
            Congress . . . . To the extent that policy considerations
            do warrant changing the statutory scheme, such
            considerations address themselves to Congress, not to
            the courts.

Waterkeeper, 399 F.3d at 505 (citations and internal quotation marks omitted).
      2.    Land Application
      The Farm Petitioners argue that the EPA’s requirement that all NMPs




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                                      No. 08-61093

address protocols for land application exceeds the EPA’s statutory authority.39
Our analysis of this issue necessitates a brief overview of the relevant parts of
the 2003 Rule and the Second Circuit’s discussion of the 2003 Rule in
Waterkeeper.
       As previously noted, the 2003 Rule established a mandatory duty for all
CAFOs applying for a permit to develop and implement an NMP, which required
a CAFO to establish BMPs.           The BMPs were designed to ensure adequate
storage of manure and wastewater, proper management of mortalities and
chemicals, and relevant here, appropriate site specific protocols for land
application. See 68 Fed. Reg. at 7176. However, NMPs (and thus BMPs) were
not required to be part of a CAFO’s NPDES permit.
       In Waterkeeper, the parties disputed “whether the terms of the [NMPs],
themselves, constitute effluent limitations that must be included in the NPDES
permits.” 399 F.3d at 502. The Second Circuit held that because the 2003 Rule
failed to require that the terms of NMPs be included in NPDES permits, the
2003 Rule violated the CWA. The court explained that the CWA defined effluent
limitation as “‘any restriction established by a State or the Administrator on
quantities, rates, and concentrations of chemical, physical, biological, and other
constituents which are discharged from point sources . . .’” Id. (citing 33 U.S.C.
§ 1362(11)).    Because “the requirement to develop [an NMP] constitutes a
restriction on land application discharges,” the court held, there was no doubt
that the CWA’s definition of effluent limitation encompassed an NMP.
Waterkeeper, 399 F.3d at 502 (emphasis added).                Thus, the Second Circuit
concluded that the EPA must incorporate CAFOs’ site-specific NMPs into their
permits.
       Accordingly, the 2008 Rule requires that “[a] permit issued to a CAFO


       39
          As previously explained, treated manure from CAFOs is typically applied to cropland
as fertilizer. This fertilizing process is called land application.

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                                  No. 08-61093

must include a requirement . . . to develop and implement” an NMP. 73 Fed.
Reg. at 70,437. The Farm Petitioners argue that the EPA’s response to the
Second Circuit’s mandate is impermissible because it allows CAFOs to regulate
all land application, even if the land application is applied pursuant to an NMP.
They further contend that, in violation of the CWA’s jurisdictional limits and
Waterkeeper, the EPA requires CAFOs that seek permit coverage only for
production area discharges to apply also for coverage for land application areas.
      The Farm Petitioners’ arguments are problematic because they are
challenging a requirement promulgated in the 2003 Rule. Thus, the Farm
Petitioners’ arguments had to be made within the 120-day time period for
challenging rules promulgated by an agency. 33 U.S.C. § 1369(b)(1). The 120-
day time limit is well-established, and this court has explained that the
limitation is strictly enforced. See Tex. Mun. Power Agency v. Envtl. Prot.
Agency, 799 F.2d 173, 175 (5th Cir. 1986). The only exception to this limitation
is if the grounds for the challenge arose after the 120-day time period. Id. It is
clear that the grounds for the challenges made by the Farm Petitioners did not
arise after the 120-day time period. Notably, the Farm Petitioners, many of
whom were parties in Waterkeeper, had the opportunity to respond to arguments
made by other petitioners in that case, advocating that the NMP terms be
included in a CAFO’s permit.      They did not.    Thus, the Farm Petitioners’
arguments, regarding NMPs and the protocols for land application, brought
almost six years after they were promulgated, are time barred.
B.    Poultry Petitioners’ Challenges
      As previously noted, after the EPA issued the 2008 Rule, it issued three
guidance letters.     Identical letters were sent to Senator Carper and
Representative Castle. The third letter was sent to a farm executive. The
Poultry Petitioners’ claims center on the substance of the EPA Letters. The
guidance letters state that poultry growers must apply for NPDES permits for

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                                        No. 08-61093

the releases of dust through poultry confinement house ventilation fans. The
Poultry Petitioners argue that this requirement is a substantive rule because it
creates new legal consequences and affects individual rights and obligations.
Thus, because the EPA failed to subject this rule to proper notice and comment,
as required by the APA, the Poultry Petitioners argue that this court should set
aside the EPA Letters’ pronouncement as unlawful. The EPA asks that we
dismiss the Poultry Petitioners’ claim because 33 U.S.C. § 1369(b)(1) governs
whether this court has jurisdiction to review an agency action, and the EPA
Letters do not fit within subsection 1369(b)(1)’s parameters. We agree and, for
the following reasons, dismiss the Poultry Petitioners’ claims.
       The CWA establishes a bifurcated jurisdictional scheme whereby courts
of appeals have jurisdiction over some categories of challenges to EPA action,
and the district courts retain jurisdiction over other types of complaints. Chem.
Mfrs. Ass’n v. Envtl. Prot. Agency, 870 F.2d 177, 265 (5th Cir. 1989). Specifically,
33 U.S.C. § 1369(b)(1) authorizes original jurisdiction to courts of appeals to
review certain agency “final actions.”40 Relevant to the Poultry Petitioners’


       40
         Specifically, section 1369(b)(1) grants courts of appeals original jurisdiction to review
agency “final actions”:

               (A) in promulgating any standard of performance under section
               1316 of this title,

               (B) in making any determination pursuant to section
               1316(b)(1)(C) of this title,

               (C) in promulgating any effluent standard, prohibition, or
               pretreatment standard under section 1317 of this title,

               (D) in making any determination as to a State permit program
               submitted under section 1342(b) of this title,

               (E) in approving or promulgating any effluent limitation or other
               limitation under section 1311, 1312, 1316, or 1345 of this title,

               (F) in issuing or denying any permit under section 1342 of this

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                                     No. 08-61093

claims, this court can review an agency’s final action (1) approving or
promulgating certain effluent limitations, § 1369(b)(1)(E), and (2) issuing or
denying certain permits, § 1369(b)(1)(F).
       As a threshold matter, in order for this court to have jurisdiction, the
guidance letters must constitute an agency final action. The Supreme Court
explained in Bennett v. Spear, 520 U.S. 154 (1997), that an agency action is final
only if it meets two criteria. Id. at 177–78. First, the action must mark the
“consummation” of the agency’s decision-making process; it cannot be tentative
or interlocutory.    Id.   Second, the action must be one by which “rights or
obligations have been determined” or from which “legal consequences will flow.”
Id.
       In regard to the first Bennett prong, we note that guidance letters can
mark the “consummation” of an agency’s decision-making process. See Her
Majesty the Queen in Right of Ontario v. Envtl. Prot. Agency, 912 F.2d 1525,
1532 (D.C. Cir. 1990) (holding that the EPA’s guidance letters constitute final
agency actions because they “serve[d] to confirm a definitive position that has
a direct and immediate impact on the parties . . . .”); Ciba-Geigy Corp. v. Envtl.
Prot. Agency, 801 F.2d 430, 437 (D.C. Cir. 1986) (finding that the EPA’s guidance
letters constituted final agency actions because there was “no reason to believe
that the EPA Director of Pesticide Programs lack[ed] authority to speak for EPA
on th[e] issue or that his statement of the agency’s position was only the ruling
of a subordinate official that could be appealed to a higher level of EPA’s
hierarchy.” (internal quotations omitted)). However, that the guidance letters
can meet the first Bennett prong is not enough. See Bennett, 520 U.S. at 177




             title, and

             (G) in promulgating any individual control strategy under section
             1314(l) of this title . . .

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                                   No. 08-61093

(“[T]wo conditions must be satisfied for agency action to be ‘final’ . . . .”). There
must also be evidence that the guidance letters have made a substantive change
in the EPA’s regulation of CAFOs. See id. at 178.
      To meet the second Bennett prong, the guidance letters must affect the
Poultry Petitioners’ rights or obligations or create new legal consequences. Id.
Although the guidance letters do, as the Poultry Petitioners note, obligate them
to obtain a permit if they discharge manure or litter through ventilation fans or
face legal consequences, the EPA Letters neither create new legal consequences
nor affect their rights or obligations. Here, the guidance letters merely restate
section 1342’s prohibition against discharging pollutants without an NPDES
permit. Agency actions that have no effect on a party’s rights or obligations are
not reviewable final actions. Fairbanks N. Star Borough v. U.S. Army Corps of
Eng’rs, 543 F.3d 586, 593–94 (9th Cir. 2008) (explaining that the second Bennett
prong was not met where “rights and obligations remain unchanged.”); Nat’l
Ass’n of Home Builders v. Norton, 415 F.3d 8, 15 (D.C. Cir. 2005) (“[I]f the
practical effect of the agency action is not a certain change in the legal
obligations of a party, the action is non-final for the purpose of judicial review.”).
Moreover, an agency’s actions are not reviewable when they merely reiterate
what has already been established. See, e.g., Am. Paper Inst. v. Envtl. Prot.
Agency, 882 F.2d 287, 289 (7th Cir. 1989) (a policy statement providing the
EPA’s views concerning tolerances for dioxin in permits for paper mills was not
a final action, because “telegraphing your punches is not the same as delivering
them”); S. Holland Metal Finishing Co. v. Browner, 97 F.3d 932, 935–37 (7th Cir.
1996) (interpretative ruling, construing regulations, was not final action); City
of San Diego v. Whitman, 242 F.3d 1097, 1101–02 (9th Cir. 2001) (letter
indicating that the Ocean Pollution Reduction Act of 1994, Pub. L. No. 103-431
§§ 1–2, 108 Stat. 4396–97 (1994), would apply to a city’s as-yet-unfiled
application to renew its NPDES permit was not a final action). The EPA Letters

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                                  No. 08-61093

do not change any rights or obligations and only reiterate what has been well-
established since the enactment of the CWA—CAFOs are prohibited from
discharging pollutants without a permit. Thus, they do not meet the two-part
Bennett test and are not reviewable, final agency decisions.
      Accordingly, we grant the EPA’s motion to dismiss because we lack
jurisdiction to consider the Poultry Petitioners’ challenge to the EPA Letters.
                              III. CONCLUSION
      For the foregoing reasons, the petitions are granted in part, denied in part,
and dismissed in part. We hereby vacate those provisions of the 2008 Rule that
require CAFOs that propose to discharge to apply for an NPDES permit, but we
uphold the provisions of the 2008 Rule that impose a duty to apply on CAFOs
that are discharging. We vacate those provisions of the 2008 Rule that create
liability for failing to apply for an NPDES permit. Additionally, we uphold the
provisions of the 2008 Rule that allow permitting authorities to regulate a
permitted CAFO’s land application and include these requirements in a CAFO’s
NPDES permit. Finally, we dismiss the Poultry Petitioners’ challenge of the
guidance letters for lack of jurisdiction.




                                        29
