ELR Citation: ELR 21005
No(s). 89-1991 (5th Cir. May 14, 1991)

The court holds that a cattle feedlot owner's failure to obtain a national pollutant discharge elimination system (NPDES) permit constituted a continuing violation of the Federal Water Pollution Control Act (FWPCA) and that future discharges from the feedlot will constitute intermittent FWPCA violations. The court withdraws its opinion at 21 ELR 20660 holding that the plaintiffs have standing to bring an FWPCA citizen suit against the feedlot owner, but have failed to prove ongoing violations on the merits. The court first holds that the defendant's feedlot is a point source, because its operations constitute concentrated animal feeding operations within the meaning of FWPCA §502(14). The defendant's feedlot is well above the size requirement, it discharged into navigable waters, and it discharged wastewater as the result of rains that did not amount to a 25-year, 24-hour storm event. The court next holds that the defendant is not excepted from the NPDES permit requirement by an Environmental Protection Agency (EPA) regulation requiring animal feeding operations to be designed, constructed, and operated to contain all process generated wastewaters and runoff from a 25-year, 24-hour rainfall event. This requirement is one of the basic criteria for issuing a permit, not an exception to the permit requirement. Further, EPA does not have discretion under the FWPCA to except classes of point sources from the permit requirement. Applying the holding of the Supreme Court in Gwaltney of Smithfield Ltd. v. Chesapeake Bay Foundation, Inc., 18 ELR 20142, and the holding of the Fourth Circuit on remand in Gwaltney, 20 ELR 20341, the court holds that the plaintiffs have standing to maintain an FWPCA citizen suit for civil penalties. By demonstrating that the defendant is a point source and does not have an NPDES permit, the plaintiffs proved violations that continue on or after the date the complaint is filed. The plaintiffs also proved the continuing likelihood of intermittent or sporadic discharges, because the district court found that the defendant's feedlot may discharge wastewater in the event of a future chronic rainfall event that does not reach the 25-year, 24-hour level. Finally, the court holds that the defendant's improvements to its wastewater disposal system did not moot the plaintiffs' suit, because the defendant cannot adduce evidence from which it is absolutely clear that its FWPCA violations cannot reasonably be expected to recur.

Counsel for Appellant
Stuart N. Henry
Henry, Kelly & Burch
2103 Rio Grande, Austin TX 78705
(512) 479-8125

Counsel for Appellee
Roger James George Jr.
Graves, Dougherty, Hearon & Moody
515 Congress Ave., P.O. Box 98, Austin TX 78767
(512) 480-5617

Before CLARK, Chief Judge, and REAVLEY and KING, Circuit Judges.