ELR Citation: 41 ELR 20151
No(s). 290323 (Mich. Ct. App. Mar 29, 2011)

A Michigan appellate court upheld the state environmental agency's concentrated animal feeding operation (CAFO) rule. The challenged rule falls within the scope of the agency's statutory rulemaking authority, is rationally related to the agency's statutory mandate to protect Michigan's waters from pollution, and is neither arbitrary nor capricious as a matter of law. As such, the agency was fully authorized to require CAFOs to either seek and obtain an NPDES permit—irrespective of whether they actually discharge pollutants—or satisfactorily demonstrate that they have no potential to discharge. The fact that the state agency adopted portions of federal regulations struck down in Waterkeeper Alliance, Inc. v Environmental Protection Agency, 399 F.3d 486, 35 ELR 20049 (2d Cir. 2005), does not necessarily mean that the corresponding state regulation is invalid. Rather, the powers conferred upon the agency by Michigan's Natural Resources and Environmental Protection Act are broader than the powers conferred upon EPA by the CWA, and the reasoning of the Waterkeeper decision does not apply in this case.