Plaintiff,
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`v.
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`ORANGE COUNTY COASTKEEPER, a
`California non-profit corporation,
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`Equestrian Services II, Inc., d/b/a Sycamore
`Trails Stables, a California corporation;
`HFT1 LLC, a California Limited Liability
`Company,
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`Case No.: 8:20-cv-1694
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`COMPLAINT FOR
`DECLARATORY AND
`INJUNCTIVE RELIEF AND
`CIVIL PENALTIES
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`(Federal Water Pollution Control
`Act, 33 U.S.C. §§ 1251 et seq.)
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`Case 8:20-cv-01694 Document 1 Filed 09/08/20 Page 1 of 20 Page ID #:1
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`Sarah Spinuzzi (SBN 305658)
`Email: sarah@coastkeeper.org
`ORANGE COUNTY COASTKEEPER
`3151 Airway Avenue, Suite F-110
`Costa Mesa, CA 92626
`Phone: (714) 850-1965
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`Attorney for Plaintiff
`ORANGE COUNTY COASTKEEPER
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`UNITED STATES DISTRICT COURT
`CENTRAL DISTRICT OF CALIFORNIA
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`Defendants.
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`Orange County Coastkeeper (“Coastkeeper” or “Plaintiff”), by and through its
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`counsel, hereby alleges:
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`COMPLAINT
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`Case 8:20-cv-01694 Document 1 Filed 09/08/20 Page 2 of 20 Page ID #:2
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`I.
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`PRELIMINARY STATEMENT
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`1. This is a civil suit brought under the citizen suit enforcement provision of the
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`Federal Clean Water Act. 33 U.S.C. §§ 1251 et seq. This Court has subject matter
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`jurisdiction over the parties and this action because it arises under federal law. The
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`events giving rise to Plaintiff’s action and the violations described in this Complaint
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`occurred, and continue to occur, within this judicial district. See 33 U.S.C. § 1365(a)(1).
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`2. This action arises out of the unlawful pollution of Trabuco Creek caused by
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`Defendant Equestrian Services II, Inc., d/b/a Sycamore Trails Stables (“Sycamore
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`Trails”) and Defendant HFT1, LLC. (“Land Owner”) (Collectively, “Defendants”), the
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`owners and/or operators of Sycamore Trails Stables (“Stables” or “Facility”). The
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`Facility stables approximately 450 horses, which are present for the majority of the year.
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`3. Defendants have operated the Facility in violation of the Clean Water Act by
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`failing to obtain permit coverage for the discharge of pollutants from a Medium
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`Concentrated Animal Feeding Operation (“CAFO”).
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`4. Failure to obtain mandatory permits for activities at the Facility violates the
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`Clean Water Act’s prohibition on unpermitted discharges of pollutants into Waters of the
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`United States. These failures are demonstrated by Defendants’ discharges of horse
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`manure and bedding, sediment, trash, fertilizers, rubberized horse footing, and other
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`“non-stormwater” into Trabuco Creek and onsite federal waters, and the discharge of
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`polluted storm water that comes into direct contact with hundreds of stabled horses
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`directly into Trabuco Creek.
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`5. The Clean Water Act enables non-profit organizations such as Orange County
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`Coastkeeper to file lawsuits to enforce the Clean Water Act. 33 U.S.C. § 1365.
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`6. Based upon its investigation to date, Coastkeeper alleges that Defendants are
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`responsible for at least 1,825 violations of Section 301 of the Clean Water Act, 33
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`U.S.C. § 1311.
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`7. Defendants’ acts and omissions have harmed, and continue to harm, both the
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`mission of Plaintiff Orange County Coastkeeper and the interests of its members who
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`COMPLAINT
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`case no: 8:20-cv-1694
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`Case 8:20-cv-01694 Document 1 Filed 09/08/20 Page 3 of 20 Page ID #:3
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`use Trabuco Creek, San Juan Creek downstream of the Facility, and Doheny State
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`Beach, where the San Juan Creek meets the Pacific Ocean.
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`8. Coastkeeper seeks declaratory and injunctive relief, as well as civil penalties,
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`to end the unlawful acts and omissions of Defendants that continue to cause irreparable
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`damage to water quality. Coastkeeper also seeks recovery of reasonable costs of suit,
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`including attorney, witness, expert, and consultant fees, pursuant to Section 505(d) of the
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`Clean Water Act, 33 U.S.C. § 1365(d).
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`II.
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`JURISDICTION AND VENUE
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`9. This is a citizen enforcement action brought under the Federal Water Pollution
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`Control Act, 33 U.S.C. §§ 1251 et seq., more commonly called the Clean Water Act
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`(“Clean Water Act” or “Act”). See 33 U.S.C. § 1365. This Court has subject matter
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`jurisdiction over the parties and this action pursuant to Section 505(a)(1) of the Clean
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`Water Act, 33 U.S.C. § 1365(a)(1), and 28 U.S.C. §§ 1331 and 2201 (an action for
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`declaratory and injunctive relief under the Constitution and laws of the United States).
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`10. Coastkeeper sent a letter by certified mail to Defendants on February 10,
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`2020 (“Notice Letter”). In the Notice Letter, Coastkeeper notified Defendants of their
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`violations of the Clean Water Act and of Coastkeeper’s intention to file suit for such
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`violations after sixty (60) days as required by 40 C.F.R. § 135.2(a)(1) (Mar. 19, 1991).
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`11. The Notice Letter was also sent to the necessary state and federal regulatory
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`agencies, as required by Section 505(b) of the Clean Water Act, 33 U.S.C. §
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`1365(b)(1)(A).
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`12. More than sixty (60) days have passed since the Notice Letter was sent to
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`Defendants and the regulatory agencies.
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`13. Coastkeeper is informed and believes that the federal or state agencies have
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`neither commenced nor are diligently prosecuting any action to redress the violations
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`alleged in the Notice Letter and in this Complaint. See 33 U.S.C. § 1365(b)(1)(B).
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`///
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`COMPLAINT
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`case no: 8:20-cv-1694
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`Case 8:20-cv-01694 Document 1 Filed 09/08/20 Page 4 of 20 Page ID #:4
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`14. This action is not barred by any prior administrative penalty under Section
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`309(g) of the Clean Water Act, 33 U.S.C. § 1319(g).
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`15. Venue is proper in this Court under 28 U.S.C. § 1391(b)(1) because a
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`substantial part of the events or omissions giving rise to Coastkeeper’s claims occurred
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`in this judicial district, and under 33 U.S.C. § 1365(c)(1) because the sources of the
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`violations described in this Complaint are located within this judicial district.
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`16. Plaintiff seeks relief from Defendants’ violations of the procedural and
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`substantive requirements of Section 301(a) of the Clean Water Act, 33 U.S.C. § 1311(a).
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`III. PARTIES
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`A. Orange County Coastkeeper
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`17. Plaintiff Orange County Coastkeeper (“Coastkeeper” or “Plaintiff”) is a
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`non-profit public benefit corporation organized under the laws of the State of California.
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`Coastkeeper’s office is located at 3151 Airway Avenue, Suite F-110, Costa Mesa,
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`California 92626.
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`18. Coastkeeper has over 1,400 members who live and/or recreate in and
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`around Orange County, including at Trabuco Creek, San Juan Creek, and Doheny State
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`Beach. Coastkeeper’s mission is to protect the region's water resources so they
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`are swimmable, drinkable and fishable for present and future generations. To further its
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`mission, Coastkeeper actively seeks federal and state agency implementation of the
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`Clean Water Act and, where necessary, directly initiates enforcement actions on behalf
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`of itself and our members.
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`19.
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`In addition, Coastkeeper’s members use and enjoy Trabuco Creek to swim,
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`birdwatch, picnic, fish, hike, wade, bike, horseback ride, conduct scientific study and
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`research, and/or for aesthetic enjoyment in and around these waters.
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`20. Coastkeeper’s members use and enjoy the coast near the San Juan Creek
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`Mouth (downstream of Trabuco Creek) and Doheny State Beach to sail, swim, boat,
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`kayak, windsurf, birdwatch, picnic, fish, paddle, standup paddleboard, surf, wade,
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`COMPLAINT
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`Case 8:20-cv-01694 Document 1 Filed 09/08/20 Page 5 of 20 Page ID #:5
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`conduct scientific study and research, and/or for aesthetic enjoyment in and around these
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`waters.
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`21. Defendants’ actions individually, collectively, and in culmination with the
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`activities of other landowners adjacent to Trabuco Creek, result in numerous injuries to
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`Coastkeeper’s interests, such as: loss, destruction or damage to wetlands and waterways;
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`diminished aesthetic enjoyment; loss of open space and habitat for wildlife, including
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`wading birds and federally protected species like Southern California Coast Steelhead;
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`degraded water quality; and diminished quality of life.
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`22. Defendants’ failure to comply with the procedural and substantive
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`requirements of the Clean Water Act negatively affects and impairs Coastkeeper’s
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`members’ use and enjoyment of these waters.
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`23. The interests of Coastkeeper’s members have been, are being, and will
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`continue to be adversely affected by Defendants’ failure to comply with the Clean Water
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`Act. Continuing the commission of the acts and omissions alleged in this Complaint will
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`irreparably harm Coastkeeper’s members, for which they have no plain, speedy, or
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`adequate remedy at law.
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`24. Coastkeeper’s members will continue to be harmed until Defendants bring
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`their activities into compliance with the law.
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`25. The relief sought herein will redress the harms to Coastkeeper caused by
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`Defendants’ activities.
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`B. Equestrian Services II, d/b/a Sycamore Trails Stables
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`26. Equestrian Services II, Inc. is an active California corporation with its
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`principal place of business located at 26282 Oso Road, San Juan Capistrano, CA 92675.
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`Equestrian Services II, Inc. does business under the name “Sycamore Trails Stables.”
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`27. Equestrian Services II, Inc. owns the Facility.
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`28. The Registered Agent for the Facility is Ronald B. Hanson.
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`29. At all times relevant to this Complaint, the Equestrian Services II, Inc. has
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`owned, and is legally responsible for, the Facility.
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`COMPLAINT
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`Case 8:20-cv-01694 Document 1 Filed 09/08/20 Page 6 of 20 Page ID #:6
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`C. HFT1, LLC.
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`30. Defendant HFT1, LLC is an active California limited liability company for
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`the purposes of property investment.
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`31. The registered agent for service of process is Roxanne Hanson-Euhus,
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`located at 19327 Camino Del Aguila, Escondido, CA 92025.
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`32. Based on information available to Coastkeeper, Coastkeeper alleges that
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`HFT1, LLC is the property owner of 26282 Oso Road, San Juan Capistrano, CA 92675 –
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`the land upon with Sycamore Trails operates its equestrian stabling business.
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`33. Ronald F. Hanson is a manger or member of HFT1, LLC.
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`34. Both Ronald F. Hanson and Roxanne Hanson-Euhus are also officers of
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`Equestrian Services II, Inc.
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`35. Coastkeeper alleges that Ronald F. Hanson and Roxanne Hanson-Euhus, as
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`officers of HFT1, LLC and Equestrian Services II, Inc., have knowledge and control of
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`the operations occurring at Sycamore Trails Stables.
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`36. Collectively, Equestrian Services II, Inc. d/b/a Sycamore Trails Stables and
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`HFT1, LLC are the owners and/or operators of the Facility and responsible parties under
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`the Clean Water Act.
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`IV. FACTUAL BACKGROUND
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`A.
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`Sycamore Trails Stables
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`Activities
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`37. Coastkeeper alleges that Sycamore Trails provides equestrian stabling,
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`riding rings, access to equestrian trials, and other related services.
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`38. Based on publicly available information obtained from OC Animal Care, an
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`agency of the County of Orange, Sycamore Trails has stables and is permitted for up to
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`476 horses.
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`39. Coastkeeper alleges that the Facility stables over 150 horses for more than
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`45 days in any 12-month period.
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`40. Coastkeeper alleges that no crops are sustained at the Facility, and horses
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`are not permitted to graze.
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`41. Based on satellite images of the Facility and the general topography of the
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`area, Coastkeeper alleges that storm water passes through stables and/or animal
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`walkways, coming into contact with manure and other pollutants, and then immediately
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`discharging into the adjacent Trabuco Creek.
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`42. Upon information and belief, Coastkeeper also alleges that man-made
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`devices convey storm water from the Facility to Trabuco Creek.
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`Non-stormwater and Storm Water Pollution
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`43. Coastkeeper alleges that Defendants have been, and are continually,
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`discharging pollutants into Trabuco Creek.
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`44. The discharged pollutants include, but are not limited to, “non-storm
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`water,” such as horse manure, bedding, sediment, equine footing, trash, and other
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`materials associated with equine operations, as well as polluted run-off and storm water.
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`45. Based on information available to Coastkeeper, it alleges that when it rains,
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`storm water falls onto the facility and runs through riding rings, stabling areas, and horse
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`walkways – coming into direct contact with manure, bedding, footing, feed, and trash
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`before discharging to Trabuco Creek.
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`46. Water flows generally towards the bank of Trabuco Creek, carrying with it
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`pollutants including bacteria, nitrogen, phosphorus, and trash.
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`47. Coastkeeper believes and thereon alleges that each time it rains at the
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`Facility, polluted water is discharged from the facility without a permit.
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`48. Unlawful discharges will occur each time it rains until such a time as the
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`Facility gains NPDES permitting and implements an approved Nutrient Management
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`Plan. Each discharge of pollutants into waters of the United States without an NPDES
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`permit for a CAFO is a violation of Section 301 of the Clean Water Act, 33 U.S.C.
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`§1311.
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`49. Coastkeeper is further informed and believes that pollutants may also be
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`discharged from the Facility during dry weather.
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`COMPLAINT
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`Case 8:20-cv-01694 Document 1 Filed 09/08/20 Page 8 of 20 Page ID #:8
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`50. Based upon information obtained from the South Orange County
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`Wastewater Authority, Coastkeeper is informed, believes, and thereon alleges that the
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`Facility discharges process wastewater from its horse wash racks directly into Trabuco
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`Creek or storm drains that convey process wastewater to Trabuco Creek.
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`51. Coastkeeper is informed and believes, and thereon alleges that process
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`wastewater from the wash racks routinely discharges, and is reasonably likely to
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`continue to be discharged, directly into Trabuco Creek in the future.
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`52. Coastkeeper further alleges that pollutants discharged from the Facility
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`include, but are not limited to, sediment, manure, feed bags, and trash from human
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`activities at the Facility. Further pollutants may enter Trabuco Creek incidentally due to
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`lack of implemented Best Management Practices (BMPs) to prevent such non-storm
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`water discharges.
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`53. Coastkeeper alleges that discharges of these non-stormwater pollutants are
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`reasonably likely to continue for as long as the Facility operates without an NPDES
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`permit.
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`Trabuco Creek
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`Description
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`54. Defendants are discharging pollution from the Facility into Trabuco Creek.
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`55. Trabuco Creek is a water of the United States subject to the protections of
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`the Clean Water Act. 33 U.S.C. § 1362(7).
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`56. Trabuco Creek is a 22-mile primary tributary of San Juan Creek with its
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`headwaters originating in the Santa Ana Mountains, flowing west and southwest through
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`San Juan Capistrano before entering San Juan Creek.
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`57. San Juan Creek is a water of the United States subject to the protections of
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`the Clean Water Act.
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`58. The San Juan Creek watershed encompasses a drainage of approximately
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`176 square miles and extends along an East-West axis from the Cleveland National
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`Forest in the Santa Ana Mountains to the Pacific Ocean at Doheny State Beach near
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`COMPLAINT
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`Case 8:20-cv-01694 Document 1 Filed 09/08/20 Page 9 of 20 Page ID #:9
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`Dana Point Harbor.1
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`Environmental Resources and Threats to Water Quality
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`59. Trabuco Creek and San Juan Creek support a wide variety of flora and
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`fauna, including endangered species such as the Pacific pocket mouse, the Southern
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`California Coast Steelhead, the Quino checkerspot butterfly, the southwestern willow
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`flycatcher, and many other species.
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`60. Portions of Trabuco Creek and San Juan Creek have specifically been
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`identified as critical habitat for a Southern California Coast Steelhead Biogeographic
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`Population Group (“Steelhead Population Group”).
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`61. The California Regional Water Quality Control Board, San Diego Region
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`(“Regional Board”) issued the San Diego Basin Water Quality Control Plan (“Basin
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`Plan”). The Basin Plan identifies the “Beneficial Uses” of water bodies in the region.
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`Pursuant to its authority over designated water bodies, the Regional Board has
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`designated several beneficial uses for Trabuco Creek, San Juan Creek, and its mouth at
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`Doheny State Beach.2
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`62. Beneficial uses are intended to represent the purposes of the water body that
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`are specifically protected by the Clean Water Act. When those uses are not attained, the
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`Regional Board designates the water body as “impaired” under Section 303(d) of the
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`Clean Water Act.
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`63.
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`In this regard, the receiving waters of pollution from the Facility are
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`impaired.
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`1 U.S. Army Corps of Engineers, South Pacific Div., Record of Decision for Revoking the Use of
`Selected Nationwide Permits within the San Juan Creek/Western San Mateo Creek Watersheds for the
`Special Area Management Plan Orange County, Cal., 1 (July 2010).
`2 According to the Basin Plan, Trabuco Creek’s existing beneficial uses include: agricultural supply,
`industrial service supply, water contact recreation, non-contact water recreation, warm freshwater
`habitat, cold freshwater habitat, and wildlife habitat. San Juan Creek’s existing beneficial uses include:
`agricultural supply, industrial service supply, water contact recreation, non-contact water recreation,
`warm freshwater habitat, cold freshwater habitat, and wildlife habitat. Likewise, the beneficial uses on
`the San Juan Creek Mouth, where San Juan Creek meets the Pacific Ocean, includes contact water
`recreation, non-contact water recreation, wildlife habitat, rare, threatened, or endangered species,
`marine habitat, migration of aquatic organisms, and shellfish harvesting. Water Quality Control Plan,
`San Diego Region, Regional Water Quality Control Board, San Diego Region, Tables 2-2, 2-3 (updated
`January 15, 2020).
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`COMPLAINT
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`Case 8:20-cv-01694 Document 1 Filed 09/08/20 Page 10 of 20 Page ID #:10
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`64. According to the 2016 303(d) List of Impaired Water Bodies, Trabuco
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`Creek is impaired for pollutants including indicator bacteria, Malathion, nitrogen,
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`phosphorus, and benthic community effects.3
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`65. San Juan Creek is impaired for pollutants including, but not limited to,
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`indicator bacteria, phosphorus, total nitrogen as N, toxicity, DDE, dissolved oxygen, and
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`selenium.4
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`66. The San Juan Creek Mouth is impaired for pollutants including cadmium,
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`copper, indicator bacteria, nickel, and nitrogen as ammonia (total ammonia).
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`67. The Pacific Ocean shoreline at the mouth of San Juan Creek, 1000 feet
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`south of San Juan Creek, and at North Doheny State Park Campground are also impaired
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`for indicator bacteria.
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`68. The discharge of stormwater carrying the byproducts of the facility,
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`including horse waste, bedding material, feed, metals, trash, and other materials are
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`contributing to, and threatening, Trabuco Creek and downstream receiving waters.
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`69. The Clean Water Act requires California to establish a total maximum daily
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`load (“TMDL”) for impaired waterbodies on its 303(d) list. A TMDL is necessary when
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`the technology-based effluent limits and other pollution control requirements “are not
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`stringent enough to implement any water quality standard applicable to such waters.”5 A
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`TMDL is the sum of the individual waste load allocations (“WLA”) for point sources
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`and load allocations (“LA”) for non-point sources and natural background.6 A WLA is a
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`“portion of a receiving water’s loading capacity that is allocated to one of its existing or
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`future point sources of pollution.”7 Any NPDES permit issued for waters subject to a
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`TMDL must include effluent limitation or standards necessary to achieve water quality
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`standards established under Section 303.8 Where a TMDL has been approved by the
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`3 Integrated Report, available at:
`https://www.waterboards.ca.gov/water_issues/programs/tmdl/integrated2014_2016.shtml.
`4 Id.
`5 33 U.S.C. § 1313(d)(1)(A); 40 C.F.R. § 130.7(b)(1).
`6 40 C.F.R. § 130(i).
`7 40 C.F.R. § 130.2(h).
`8 33 U.S.C. § 1311(b)(1)(C); 40 C.F.R. § 122.44(d)(1).
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`COMPLAINT
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`EPA, NPDES permit limits must be consistent with the assumptions and requirements of
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`the TMDL’s WLAs.9
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`70. On February 10, 2010, the Regional Board adopted Resolution No R9-
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`2010-0001, an amendment revising its Basin Plan to incorporate the Revised Total
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`Maximum Daily Loads for Indicator Bacteria, Project I – Twenty Beaches and Creeks in
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`the San Diego Region (Including Tecolote Creek) (“Twenty Beaches TMDL”). The
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`TMDL became effective on April 4, 2011. The Regional Board included San Juan
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`Creek, San Juan Creek mouth, and the Pacific Ocean shoreline near San Juan Creek into
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`the Twenty Beaches TMDL from the Lower San Juan Creek Hydrologic Sub Area
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`(HSA).10
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`71. The Regional Board identified CAFOs as point source dischargers
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`responsible for causing or contributing to bacteria impairments in Twenty Beaches
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`TMDL.11 Unlike other point source contributors, CAFOs were assigned a zero WLA.12
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`Consequently, CAFOs are not allowed to discharge bacteria in dry or wet weather under
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`the terms of the Twenty Beaches TMDL.13
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`72. On November 6, 2018, the State Board amended the Industrial General
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`Permit Order 2014-0057-DWQ, as amended by Order 2015-0122-DWQ, to incorporate
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`the Twenty Beaches TMDL, making its requirements applicable to industrial storm
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`water dischargers regulated by the permit.14
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`V.
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`STATUTORY AND REGULATORY BACKGROUND
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`A. The Clean Water Act, State Regulation, and Relevant Permitting
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`Provisions
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`73. Congress passed the Clean Water Act to “restore and maintain the
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`chemical, physical, and biological integrity of the Nation’s waters,” 33 U.S.C. § 1251(a),
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`9 40 C.F.R. §§ 122.44(d)(1)(vii)(B), 130.12(a).
`10 See R9-2010-0001, Attachment A, A1.
`11 See R9-2010-0001, Attachment A, A40.
`12 Id.
`13 Id. at A45.
`14 See Order 20XX-XXXX-DWQ, Section VII., Attachment E.
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`COMPLAINT
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`Case 8:20-cv-01694 Document 1 Filed 09/08/20 Page 12 of 20 Page ID #:12
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`and with the “interim goal” that wherever attainable, “water quality which provides for
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`the protection and propagation of fish, shellfish, and wildlife and provides for recreation
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`in and on the water achieved by July 1, 1983.” 33 U.S.C. § 1251(a)(2).
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`74. Section 301(a) of the Clean Water Act, 33 U.S.C. § 1311(a), prohibits the
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`discharge of any pollutant into waters of the United States unless the discharge complies
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`with a permit issued pursuant to Clean Water Act Section 402. 33 U.S.C. §§ 1342.
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`75. Section 402 of the Clean Water Act establishes National Pollutant
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`Discharge Elimination System (“NPDES”) permits issued by EPA, or an EPA-delegated
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`state, to achieve the goals stated in Section 301(a) of the Clean Water Act. 33 U.S.C.
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`§§ 1311(a) and 1342(b).
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`76. EPA has delegated its NPDES permitting authority to the State of
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`California.
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`77. The California Water Code vests the State Water Resources Control Board
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`(“State Board”) and the State’s nine regional water quality control boards with primary
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`responsibility for regulating state water quality. Cal. Water Code §§ 13001, 13050(a)-
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`(b), 13200. The Regional Board identified above is one of the nine regional boards. The
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`San Juan Creek watershed, and the Pacific Ocean drainages from this watershed, fall
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`within its jurisdiction. Id. § 13200(f).
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`78. Each violation of an NPDES permit – and each discharge of a pollutant that
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`is not authorized by an NPDES permit – is a violation of the Clean Water Act and its
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`implementing regulations and is grounds for enforcement actions, including citizen
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`enforcement seeking civil penalties. 33 U.S.C. §§ 1311(a), 1342(a), 1365(a), 1365(f)(6);
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`40 C.F.R. § 122.41(a) (Dec. 21, 2015).
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`B. NPDES Permits
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`1.
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`Concentrated Animal Feeding Operation Permit
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`79. Under the Clean Water Act, a “point source” includes a “concentrated
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`animal feeding operation” from which pollutants are or may be discharged. 33 U.S.C. §
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`1362(14).
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`COMPLAINT
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`80. To be considered a concentrated animal feeding operation (“CAFO”), the
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`facility must satisfy a two-part test. First, the facility must meet the definition of an
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`animal feeding operation (“AFO”). 40 C.F.R. § 122.23 (Jul. 30, 2012). Second, the
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`facility must confine a certain number of animals, which varies by species. Id.
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`81. An AFO is defined as a lot or facility where the following conditions are
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`met: “(i) Animals (other than aquatic animals) have been, are, or will be stabled or
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`confined and fed or maintained for a total of 45 days or more in any 12–month period,
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`and (ii) Crops, vegetation, forage growth, or post-harvest residues are not sustained in
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`the normal growing season over any portion of the lot or facility.” 40 C.F.R. §
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`122.23(b)(1)(i-ii) (Jul. 30, 2012).
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`82. According to EPA, if an animal is at the facility for a portion of the day, it
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`counts as a full day.15
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`83. The 12-month period is any 12-month period and need not correspond with
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`a calendar year.16
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`84.
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`If a facility meets the definition of an AFO, the next step is to determine
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`whether it has the requisite number of animals present at the facility to be classified as a
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`CAFO. CAFOs may be further categorized as Large or Medium CAFOs based on the
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`number of animals at a facility.
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`85. For a horse AFO, 500 or more horses must be present at the facility to be
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`classified as a Large CAFO. 40 C.F.R. 122.23(4)(vi) (Jul. 30, 2012).
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`86. A Medium horse CAFO is any facility with 150-499 horses that also either:
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`(1) discharges “into waters of the United States through a man-made ditch, flushing
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`system, or other similar man-made device”; or (2) “[p]ollutants are discharged directly
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`into waters of the United States which originate outside of and pass over, across, or
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`through the facility or otherwise come into direct contact with the animals confined in
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`15 NPDES Permit Writers’ Manual for CAFOs.
`https://www.epa.gov/sites/production/files/2015-
`08/documents/cafo_permitmanual_chapter2.pdf. Chapter 2-2. Accessed April 24, 2017.
`16 Id.
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`COMPLAINT
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`the operation.” 40 C.F.R. § 122.23(6) (Jul. 30, 2012).
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`87. For facilities smaller than a Medium CAFO, the Regional Board may still
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`designate any AFO as a CAFO if it determines that the AFO is a significant contributor
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`of pollutants to waters of the United States. 40 C.F.R. § 122.23 (Jul. 30, 2012).
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`88. Once an AFO is defined as a CAFO, the NPDES requirements for CAFOs
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`apply to all animals in confinement at the operation and all manure, litter, and process
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`wastewater generated by those animals or the production of those animals. See 40 C.F.R.
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`§ 122.23(a) (Jul. 30, 2012).
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`89. Manure is defined to include “manure, bedding, compost, and raw materials
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`or other materials comingled with manure or set aside for disposal.” 40 C.F.R. §
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`122.23(b)(5) (Jul. 30, 2012).
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`90. Every discharge of pollutants from a CAFO into waters of the United States
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`without a NPDES permit is a violation of Section 301 of the CWA. 33 U.S.C. § 1311.
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`See also 40 C.F.R. §§ 122.23(d)(1), 122.23(f) (Jul. 30, 2012).
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`91. Like other NPDES permits, CAFO permits must contain effluent
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`limitations, monitoring and reporting requirements, record-keeping requirements, special
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`conditions, and standard conditions to ensure the CAFO is complying with the Clean
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`Water Act.17
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`92. Effluent limitations are defined as “any restriction established by the
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`Administrator on quantities, rates, and concentrations of chemical, physical, biological
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`and other constituents which are discharged from point sources” into waters of the
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`United States. 40 C.F.R. § 401.11(i) (Aug. 28, 2015).
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`93. As explained below, a CAFO permit must include both technology-based
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`effluent limitations as well as more stringent water quality-based effluent limitations
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`when water quality standards are not being met.
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`94. The Clean Water Act requires all NPDES point sources to achieve
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`17 NPDES Permit Writers’ Manual for CAFOs, https://www.epa.gov/npdes/npdes-permit-writers-
`manual-concentrated-animal-feeding-operations, Ch. 4 (Last Accessed May 3, 2017).
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`COMPLAINT
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`case no: 8:20-cv-1694
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`Case 8:20-cv-01694 Document 1 Filed 09/08/20 Page 15 of 20 Page ID #:15
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`compliance with technology-based effluent limitations. 33 U.S.C. § 1311(b).
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`95. Technology-based effluent limitations for CAFOs must address all of the
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`discharges from a CAFO. 40 C.F.R. § 122.42(e) (Dec. 21, 2015).
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`96. CAFO permits must include limits for process wastewater discharges from
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`the CAFO’s production area and land application area.
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`97. Process wastewater is defined as water directly or indirectly used in
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`operation of the AFO for activities including: washing, cleaning, or flushing AFO
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`facilities; washing or spray cooling animals; dust control; or any water that comes into
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`contact with any raw material, products, or byproducts including manure, litter, feed,
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`milk, or bedding. 40 C.F.R. §§ 122.23(b)(7) (Jul. 30, 2012), 412.2(d) (Feb. 12, 2003).
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`98. The discharge of manure, litter, or process wastewater to waters of the
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`United States from a CAFO is subject to NPDES permit requirements. 40 C.F.R. §§
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`122.23(e), 122.23(b)(3) (Jul. 30, 2012).
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`99. A CAFO can only discharge manure, litter, or process wastewater from land
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`areas under its control due to precipitation events if those materials are applied in
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`accordance with a site-specific, documented, nutrient management plan. 40 C.F.R. §§
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`122.23(e)(1), (2) (Jul. 30, 2012).
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`100. Similarly, CAFO permits require implementation of a site-specific nutrient
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`management plan that,