On July 30, the United States District Court for the Eastern District of North Carolina decided Rose Acre Farms, Inc. v. North Carolina Department of Environment and Natural Resources, No. 14-cv-147, 2015 WL 4603950. The court dismissed the plaintiff’s action for declaratory judgment, holding that it lacked subject-matter jurisdiction over the claim and, alternatively, that it would refrain from exercising discretion to review the claim under the Declaratory Judgment Act. The court’s decision is significant not only in the Clean Water Act context, but also in cases challenging state permitting decisions in other “cooperative federalism” regulatory regimes under which significant permitting authority is delegated to the states.
The plaintiff in Rose Acre Farms operates an egg farm. As required by state law, the plaintiff constructed a detention pond to control surface water. The detention pond, located near a hen house, also picks up small amounts of dust, feathers, and manure. While it does not directly discharge into state or federal waters, the detention pond periodically discharges accumulated precipitation and debris into a nearby canal. Therefore, the state environmental agency required the plaintiff to obtain a National Pollutant Discharge Elimination System (“NPDES”) permit under the Clean Water Act. Continue Reading