ELR Citation: ELR 21480
No(s). 93-9229 (2d Cir. Sep 2, 1994)

The court holds that liquid manure spreading operations at a dairy farm constitute a point source within the meaning of §502(14) of the Federal Water Pollution Control Act (FWPCA) because the farm is a concentrated animal feeding operation (CAFO) and not subject to the agricultural stormwater exemption. The court first holds that the manure is a pollutant within the meaning of the Act because §502(6) defines pollutant to include solid waste, sewage, biological materials, and agricultural waste discharged into water. The court next holds that a swale in one of the farm's fields that collected liquid manure spread by tankers is a point source when coupled with a pipe that lead into a ditch and then into a stream. Based on case law, the court holds that the manure spreading vehicles are also point sources. The court next upholds a jury verdict that the farm violated the FWPCA on two days when the same activities occurred as on another day for which the court had already determined that an FWPCA violation occurred. The jury was justified in inferring that the activities on those three days probably had the same result. The fact that the evidence of the point source discharges is circumstantial does not render the jury's conclusion conjectural.

Turning to the farm's argument that discharges on rainy days were covered by the Act's agricultural stormwater exemption, the court finds that those discharges were not the result of rain. The court holds that the jury could properly find that the runoff was primarily caused by the over-saturation of the fields rather than the rain and that sufficient quantities of manure were present so that the runoff could not be classified as stormwater. The court further holds that the feed lot where the cattle were confined was a CAFO, and thus not an agricultural nonpoint source. Regulations define a CAFO as an animal feeding operation (AFO) containing more than 700 mature dairy cattle, and it is undisputed that the feed lot confines more than 700 such cattle. As to the farm's argument that the feed lot is not an AFO because crops are grown in the fields, the court holds that the regulatory provision defining an AFO as a lot that does not sustain vegetation pertains only to the lot in which the animals are confined. The court, therefore, holds that the district court erred in deciding that the farm does not operate a CAFO based on the growth of crops outside the area in which the cows are confined.

[The district court's opinion is published at 24 ELR 20402.]

Counsel for Plaintiffs
Donald W. O'Brien Jr.
Woods, Oviatt, Gilman, Sturman & Clarke
44 Exchange St., Rochester NY 14614
(716) 454-5370

Counsel for Defendants
John W. Clarke
Harris, Beach & Wilcox
Granite Bldg.
130 E. Main St., Rochester NY 14604
(716) 232-4440

Before Miner and Carter,^* JJ.