Full opinion text
KATZMANN, Circuit Judge. In this consolidated petition, we review various challenges to a regulation promulgated by the United States Environmental Protection Agency under the Clean Water Act in order to abate and control the emission of water pollutants from concentrated animal feeding operations. While we deny many of the challenges here brought, we find that several aspects of the regulation violate the express terms of the Clean Water Act or are otherwise arbitrary and capricious under the Administrative Procedure Act. Accordingly, we grant the petitions in part and deny the petitions in part. Background A. Statutory Background The Clean Water Act (the “Act”) is a cornerstone of the federal effort to protect the environment. “[Djesigned to ‘restore and maintain the chemical, physical, and biological integrity of the Nation’s waters,’ ” No Spray Coalition, Inc. v. City of New York, 351 F.3d 602, 604 (2d Cir.2003) (quoting 33 U.S.C. § 1251(a)), the Act is the principal legislative source of the EPA’s authority — and responsibility — to abate and control water pollution. See 33 U.S.C. §§ 1311(a), 1342, 1362. By way of very brief overview, the Act formally prohibits the “discharge of a pollutant” by “any person” from any “point source” to navigable waters except when authorized by a permit issued under the National Pollutant Discharge Elimination System (“NPDES”). See 33 U.S.C. §§ 1311(a), 1342. This means, as a practical matter, that the EPA primarily advances the Act’s objectives — including the ambitious goal that water pollution be not only reduced, but eliminated, see 33 U.S.C. § 1251(a)(1) — through the use of NPDES permits that, while authorizing some water pollution, place important restrictions on the quality and character of that licit pollution. NPDES permits are issued either by the EPA, itself, or by the states in a federally approved permitting system. See 33 U.S.C. § 1342. Regardless of the issuer, every NPDES permit is statutorily required to set forth, at the very least, “effluent limitations,” that is, certain “restriction[s] ... on [the] quantities, rates, and concentrations of chemical, physical, biological, and other constituents which are discharged from point sources into navigable waters.” S. Florida Water Mgmt. Dist. v. Miccosukee Tribe of Indians, 541 U.S. 95, 124 S.Ct. 1537, 1541, 158 L.Ed.2d 264 (2004) (“Generally speaking, the NPDES requires dischargers to obtain permits that place limits on the type and quantity of pollutants that can be released into the Nation’s waters.”). The specific effluent limitations contained in each individual NPDES permit are dictated by the terms of more general “effluent limitation guidelines” (“ELGs”), which are separately promulgated by the EPA. Cf. EPA v. California, ex rel. State Water Res. Control Bd., 426 U.S. 200, 205, 96 S.Ct. 2022, 48 L.Ed.2d 578 (1976) (“An NPDES permit serves to transform generally applicable effluent limitations and other standards including those based on water quality into the obligations ... of the individual discharger.”). ELGs, and the effluent limitations established in accordance with them, are technology-based restrictions ' on water pollution. They are technology-based, because they are established in accordance' with various technological standards that the Act statutorily provides and that, pursuant to the Act, vary depending upon the type of pollutant involved, the type of discharge involved, and whether the point source in question is new or already existing. We will discuss these with greater detail below. For now, we note simply that the technology standards for already existing point sources include (1) the best available technology economically achievable, see 33 U.S.C. § 1311(b)(2)(A); (2) the best conventional pollutant control technology, see 33 U.S.C. § 1314(b)(2)(A); and (3) the best practiea-ble control technology currently available, see 33 U.S.C. § 1314(b)(1)(A). The technology standard for new point sources, which is commonly referred to as a new source performance standard, is based on the best available demonstrated control technology, see 33 U.S.C. § 1316. We also note that where effluent limitations prove insufficient to attain or maintain certain water quality standards, the Act requires NPDES permits to include additional water quality based effluent limitations. See 33 U.S.C. §§ 1311(b)(1), 1312(a). Overall, we hope to make clear that the NPDES permit is critical to the successful implementation of the Act because — by setting forth technology-based effluent limitations and, in certain cases, additional water quality based effluent limitations — the NPDES permit “defines, and facilitates compliance with, and enforcement of, a preponderance of a discharger’s obligations under the [Act].” California, ex rel. State Water Res. Control Bd., 426 U.S. at 205, 96 S.Ct. 2022. B. Regulatory Background In the consolidated petition before us, we are asked to review, inter alia, the permitting requirements and effluent limitation guidelines promulgated by the EPA in its attempt to regulate the emission of water pollutants from so-called concentrated animal feeding operations (“CAFOs”). Before reviewing these challenges, however, a few introductory words about CAFOs themselves are in order. CAFOs are the largest of the nation’s 238,000 or so “animal feeding operations”- — -“agriculture enterprises where animals are kept and raised in confinement.” National Pollutant Discharge Elimination System Permit Regulation and Effluent Limitation Guidelines and Standards for Concentrated Animal Feeding Operations, 68 Fed.Reg. 7176, 7179 (Feb. 12, 2003) (codified at 40 C.F.R. Parts 9, 122, 123 and 412) [hereinafter “Preamble to the Final Rule”]. Such “agriculture enterprises” are not, however, of a kind the Founding Fathers likely would have envisioned populating America’s “yeoman republic.” See generally, Stanley Elkins And Eric Mckitrick, Jefferson and the Yeoman Republic, The Age Of Federalism 195-208 (1972). On the contrary, CAFOs are large-scale industrial operations that raise extraordinary numbers of livestock. For example, a “Medium CAFO” raises as many as 9,999 sheep, 54,999 turkeys, or 124,999 chickens (other than laying hens). “Large CAFOs” raise even more staggering numbers of livestock — sometimes, raising literally millions of animals in one location. Economically, these CAFOs generate billions of dollars of revenue every year. The EPA has focused on the industry because CAFOs also generate millions of tons of manure every year, and “when improperly managed, [this manure] can pose substantial risks to the environment and public health.” Preamble to the Final Rule at 7179. Animal waste includes a number of potentially harmful pollutants. According to the EPA, the pollutants associated with CAFO waste principally include: (1) nutrients such as nitrogen and phosphorus; (2) organic matter; (3) solids, including the manure itself and other elements mixed with it such as spilled feed, bedding and litter materials, hair, feathers and animal corpses; (4) pathogens (disease-causing organisms such as bacteria and viruses); (5) salts; (6) trace elements such as arsenic; (7) odorous/volatile compounds such as carbon dioxide, methane, hydrogen sulfide, and ammonia; (8) antibiotics; and (9) pesticides and hormones. See National Pollutant Discharge Elimination System Permit Regulation and Effluent Limitations Guidelines and Standards for Concentrated Animal Feeding Operations, 66 Fed.Reg. 2960, 2976-79 (proposed Jan. 12, 2001) [hereinafter “Proposed Rule”]; see also Preamble to the Final Rule at 7181. These pollutants can infiltrate the surface waters in a variety of ways including spills and other dry-weather discharges, overflows from storage “lagoons,” and discharge to the air coupled with subsequent redeposition on the landscape. See Preamble to the Final Rule at 7181. Perhaps the most common way by which pollutants reach the surface waters is through improper “land application.” Land application, the predominant means by which CAFOs dispose of animal waste, is a process by which manure, litter, and other process wastewaters are spread onto fields controlled by CAFOs. As all parties here agree, when properly land-applied, manure, litter, and other process wastewaters can act as a fertilizer, because “land application of CAFO waste fosters the reuse of the nitrogen, phosphorus, and potassium in these wastes for crop growth.” EPA, State Compendium: PROGRAMS And Regulatory Activities Related To Animal Feeding Operations 13 (May 2002). However, when waste is excessively or improperly land-applied, the nutrients contained in the waste become pollutants that can and often do run off into adjacent waterways or leach into soil and ground water. See id.; Preamble to the Final Rule at 7180-81. In light of these environmental threats, the EPA first promulgated regulations for CAFOs in 1974 and 1976 — regulations that, very generally speaking, defined the types of animal feeding operations that qualify as CAFOs, set forth various NPDES permit requirements, and established effluent limitation guidelines for CAFOs. See 41 Fed.Reg. 11,458 (Mar. 18, 1976); 39 Fed.Reg. 5704 (Feb. 14, 1974). After having been sued, in 1989, for failing to publish a plan to revise existing effluent limitations for the industry pursuant to 33 U.S.C. § 1314(m), the EPA, on January 12, 2001, proposed to “revise and update” the first set of CAFO regulations. See Proposed Rule at 2960. The EPA explained, in proposing its revisions, that the new rule aimed to address not only inadequate compliance with existing policy, but also the “changes that have occurred in the animal production industries.” Proposed Rule at 2972. Specifically, the EPA pointed to the “continued trend toward fewer but larger operations, coupled with greater emphasis on more intensive production methods and specialization,” a trend that— along with “increased reports of large-scale discharges from these facilities” and “continued runoff’ — had contributed to “the significant increase in nutrients and resulting impairment of many U.S. waterways.” Id. The EPA received approximately 11,000 public comments on the proposed rule, see Preamble to the Final Rule at 7187, as well as an additional 450 or so comments following the publication, in November 2001 and July 2002, of Notices of Data Availability (documents that summarized new data and information presented to the EPA). See id. at 7187-88. Ultimately, on February 12, 2003, the EPA promulgated its Final CAFO Rule (“CAFO Rule” or “Rule”). See 40 C.F.R. §§ 9, 122, 123, 412; see also Preamble to the Final Rule at 7176. The aspects of the Rule most relevant to the petitions before us are as follows: (1) The Duty to Apply for an NPDES Permit The Rule requires that all CAFO owners or operators must apply for an individual NPDES permit or submit a notice of intent for coverage under an NPDES general permit. See 40 C.F.R. § 122.23(d)(1). There is, however, an exception: Section 122.23(d)(2) provides, in effect, that an owner or operator of a Large CAFO need not seek coverage under an NPDES permit if the owner or operator secures a determination from the director of the relevant permitting authority that the Large CAFO has “no potential to discharge” manure, litter or process wastewater. See 40 C.F.R. § 122.23(d)(2); see also id. at § 122.23(f) (describing the process by which a Large CAFO may secure a determination that it has “no potential to discharge”). (2) NPDES Permit Requirements The Rule includes the requirement that each CAFO develop and implement a nutrient management plan. Such a nutrient management plan must, under the Rule: (i) Ensure adequate storage of manure, litter, and process wastewater, including procedures to ensure proper operation and maintenance of the storage facilities; (ii) Ensure proper management of mor-talities (i.e. dead animals) to ensure that they are not disposed of in a liquid manure, storm water, or process waste-water storage or treatment system that is not specifically designed to treat animal mortalities; (iii) Ensure that clean water is diverted, as appropriate, from the production area; (iv) Prevent direct contact of confined animals with waters of the United States; (v) Ensure that chemicals and other contaminants handled on-site are not disposed of in any manure, litter, process wastewater; or storm water storage or treatment system unless specifically designed to treat such chemicals and other contaminants; (vi) Identify appropriate site specific conservation practices to be implemented, including as appropriate buffers or equivalent practices, to control runoff of pollutants to waters of the United States; (vii) Identify protocols for appropriate testing of manure, litter, process waste-water, and soil; (viii) Establish protocols to land apply manure, litter or process wastewater in accordance with site specific nutrient management practices that ensure appropriate agricultural utilization of the nutrients in the manure, litter or process wastewater; and (ix) Identify specific records that will be maintained to document the implementation and management of the minimum elements described [above]. 40 C.F.R. § 122.42(e)(1)(i)-(ix). Additionally, the effluent limitation guidelines for CAFOs (which we will describe in a moment) further require that each Large CAFO develop and implement a nutrient management plan that, inter alia, includes a waste “application rate” that “minimize[s] phosphorus and nitrogen transport from the field to surface waters.” 40 C.F.R. § 412.4(c)(2). (3) The Discharges Subject to NPDES Requirements The Rule provides, in § 122.23(e), that all land application discharges from a CAFO are subject to NPDES requirements, i.e., any discharge of manure, litter, or process wastewater that results from the land application of these materials by a CAFO is a discharge that is regulable and subject to NPDES permit requirements. 40 C.F.R. § 122.23(e). Where, however, CAFOs land-apply waste in accordance with site-specific nutrient management practices that ensure appropriate agricultural utilization of the nutrients in that waste, any subsequent “precipitation-related” discharge is considered to be an “agricultural stormwater discharge” that is, under the Act, exempt from regulation. See id.; 33 U.S.C. § 1362(14). (4) Effluent Limitation Guidelines The Rule establishes effluent limitation guidelines (“ELGs”) that apply to land application discharges by Large CAFOs and to the “production areas” of Large CA-FOs. Two general comments about these ELGs are in order. First, although the EPA usually establishes quantitative or numerical ELGs, the EPA here promulgated “best management practices,” which are qualitative or non-numerical ELGs for Large CAFOs, but which, we note, are still technology-based because they are based on the technology standards prescribed by the Act. See 40 C.F.R. § 412.4; see also 40 C.F.R. § 122.44(k) (describing the circumstances in which the EPA may promulgate “best management practices” in the place of numerical ELGs). Second, because the EPA here decided to organize Large CA-FOs into four subcategories (depending upon the types of animals present), the ELGs are also organized into four subcategories. See Preamble to the Final Rule at 7208. Additionally, we note that, with respect to land application, best management practices include, most importantly, the requirement that Large CAFOs “develop and implement a nutrient management plan” that, inter alia, sets an application rate that minimizes the transport of phosphorus and nitrogen from the land application field to surface waters. 40 C.F.R. §§ 412.4(c)(l)-(2). The land application best management practices also provide for manure and soil sampling, inspection of land application equipment and various setback requirements. See 40 C.F.R. § 412.4(c)(3)-(5). With respect to the ELGs for production areas, best management practices include various requirements designed to minimize the possibility of overflows, such as mandatory inspections of relevant equipment and the installation of depth markers in surface and liquid impoundments (e.g., lagoons, ponds, and tanks). See 40 C.F.R. § 412.37; Preamble to the Final Rule at 7214-21. Discussion Two sets of petitioners bring challenges to the CAFO Rule: the “Environmental Petitioners” (Waterkeeper Alliance, Inc., Sierra Club, Natural Resources Defense Council, Inc., and the American Littoral Society) and the “Farm Petitioners” (American Farm Bureau Federation, National Chicken Council, and the National Pork Producers Council). Amici curiae, who represent various environmental and public health interests, join the Environmental Petitioners in some of their challenges. All the challenges we here consider— most of which are brought by the Environmental Petitioners — can be divided into three general categories: (1) challenges to the permitting scheme established by the CAFO Rule; (2) challenges to the types of discharges subject to regulation under the CAFO Rule; and (3) challenges to the effluent limitation guidelines established by the CAFO Rule. We will address each category in turn. To the extent we are asked to review whether some aspect of the CAFO Rule violates the Clean Water Act,, our inquiry is governed by the standards set forth in Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc, 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). See also Public Citizen, Inc. v. Mineta, 340 F.3d 39, 53 (2d Cir.2003). If Congress has “directly spoken to the precise question at issue” and “the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress.” Chevron, 467 U.S. at 842 — 43, 104 S.Ct. 2778 (footnote omitted). If, however, we determine that the statute is silent or ambiguous with respect to the specific question at issue, then we consider “whether the agency’s answer is based on a permissible construction of the statute.” Id. at 843, 104 S.Ct. 2778. To the extent we are asked to review whether some aspect of the CAFO Rule violates the Administrative Procedure Act because it is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law,” 5 U.S.C. § 706(2)(A), our inquiry is governed by the standard set forth in Motor Vehicle Manufacturers’ Association of the United States, Inc. v. State Farm Mutual Automobile Insurance Company. See 463 U.S. 29, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983). See also Public Citizen, 340 F.3d at 53. To determine whether an agency has acted in an arbitrary and capricious fashion, we ask whether the agency has “examine[d] the relevant data and articulate[d] a satisfactory explanation for its action including a rational connection between the facts found and the choice made.” State Farm, 463 U.S. at 42, 103 S.Ct. 2856. Then, “[i]n reviewing that explanation, we must consider whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment.” Id. Normally, we must deem arbitrary and capricious an agency rule where “the agency has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.” Id. at 43, 103 S.Ct. 2856 (internal quotations and citations omitted). With this background in mind, we turn now to the various challenges. A. Challenges to the CAFO Rule Permitting Scheme 1. Failure to Regulate The Environmental Petitioners broadly indict the CAFO Rule as countenancing the creation of an “impermissible self-regulatory permitting regime.” More precisely, the Environmental Petitioners argue that the CAFO Rule is unlawful because: (1) it empowers NPDES authorities to issue permits to Large CAFOs in the absence of any meaningful review of the nutrient management plans those CAFOs have developed; and (2) it fails to require that the terms of the nutrient management plans be included in the NPDES permits. We agree with the Environmental Petitioners on both counts. a. Failure to Require Permitting Authority Review The Clean Water Act demands regulation in fact, not only in principle. Under the Act, permits authorizing the discharge of pollutants may issue only where such permits ensure that every discharge of pollutants will comply with all applicable effluent limitations and standards. Section 1342(a)(1) of Title 33 provides, for example, that when the EPA is, itself, issuing NPDES permits, the EPA may issue a permit for the discharge of any pollutant or combination of pollutants “upon condition that such discharge will meet ... all applicable requirements [including the effluent limitations statutorily required by 33 U.S.C. § 1311].” The Act further provides that the EPA “shall prescribe conditions for such permits to assure compliance with [all applicable requirements, including effluent limitations].” 33 U.S.C. § 1342(a)(2) (emphasis added). Similarly, 33 U.S.C. § 1342(b) allows states to distribute NPDES permits only where, inter alia, the state permitting programs “apply, and insure compliance with, any applicable [effluent limitations and standards].” 33 U.S.C. § 1342(b) (emphasis added). By failing to provide for permitting authority review' of the nutrient management plans, the CAFO Rule plainly violates these statutory commandments and is otherwise arbitrary and capricious under the Administrative Procedure Act. The requirement to develop and implement a nutrient management plan is, after all, one of the “best management practices” that constitute the effluent limitation guidelines for land application by Large CAFOs. See 40 C.F.R. § 412.4(c)(1). But not just any nutrient management plan suffices under the Rule. On the contrary, the effluent limitation guidelines expressly require that Large CAFOs develop and implement a nutrient management plan that: incorporates the requirements of paragraphs (c)(2) through (c)(5) of this section based on a field-specific assessment of the potential for nitrogen and phosphorus transport from the field and that addresses the form, source, amount, timing, and method of application of nutrients on each field to achieve realistic production goals, while minimizing nitrogen and phosphorus movement to surface waters. Id. Accordingly, in order to comply with the effluent limitations for land application of manure, litter, and process wastewater, Large CAFOs must, inter alia, develop and implement nutrient management plans that, pursuant to paragraph(c)(2), include “application rates” that “minimize phosphorus and nitrogen transport from the field to surface waters in compliance with the technical standards for nutrient management established by the Director.” See 40 C.F.R. § 412.4(c)(2). As presently constituted, the CAFO Rule does nothing to ensure that each Large CAFO has, in fact, developed a nutrient management plan that satisfies the above requirements. The CAFO Rule does nothing to ensure, in other words, that each Large CAFO will comply with all applicable effluent limitations and standards. This is because, most glaringly, the CAFO Rule fails to require that permitting authorities review the nutrient management plans developed by Large CAFOs before issuing a permit that authorizes land application discharges. A recent decision of the Ninth Circuit supports the conclusion we here reach. In Environmental Defense Center, Inc. v. EPA (“EDC”), the Ninth Circuit considered a challenge to a “Phase II” EPA rule for municipal storm sewer systems. See 344 F.3d 832 (9th Cir.2003), cert. denied, Texas Cities Coalition on Stormwater v. EPA, — U.S. -, 124 S.Ct. 2811, 159 L.Ed.2d 246 (2004). Among other things, the Phase II Rule allowed small municipal storm sewer systems to seek permission to discharge pollutants by submitting an individualized set of best management practices designed by each municipal storm sewer system (“stormwater management plans”), either in the form of an individual permit application or in the form of a notice of intent to comply with a general permit. See EDC, 344 F.3d at 842. So long as a notice of intent included a stormwater management plan, the EPA deemed a municipal storm sewer system to be in compliance with the relevant standards of the Clean Water Act, including the standard that municipal stormwater pollution be reduced to the “maximum extent practicable.” See id. at 855; 33 U.S.C. § 1342(p)(3)(B)(iii); 40 C.F.R. § 123.35. The Phase II Rule did not require NPDES authorities to review the stormwater management plans themselves. The Ninth Circuit held, however, that the failure to require permitting authority-review of the stormwater management plans violated the Clean Water Act. While the Ninth Circuit was quick to laud “[ijnvolving regulated parties in the development of individual stormwater pollution control programs,” it emphasized that “programs that are designed by regulated parties must, in every instance, be subject to meaningful review by an appropriate regulating entity to ensure that each such program reduces the discharge of pollutants to the maximum extent practicable [i.e., the relevant statutory standard].” EDC, 344 F.3d at 856. The Phase II Rule, by contrast, failed to require that the relevant permitting authorities review the stormwater management plans to “ensure that the measures that any given operator of a [small municipal storm sewer system] has decided to undertake will in fact reduce discharges to the maximum extent practicable.” Id. at 855 (emphasis in original). Accordingly, the Phase II Rule provided no safeguard against a municipal storm sewer system’s “misunderstanding or misrepresenting its own stormwater situation and proposing a set of minimum measures for itself that would reduce discharges by far less than the maximum extent practicable.” Id. Like the Phase II Rule, the CAFO Rule does not require that NPDES permitting authorities review the nutrient management plans to ensure that the nutrient management plans designed by the Large CAFOs will in fact reduce land application discharges in a way that “achieve[s] realistic production goals, while minimizing nitrogen and phosphorus movement to surface waters.” 40 C.F.R. § 412.4(c)(1). Like the Phase II Rule, the CAFO Rule does not adequately prevent Large CAFOs “from misunderstanding or misrepresenting” their specific situation and adopting improper or inappropriate nutrient management plans, with improper or inappropriate waste application rates. The EPA offers two principal arguments in defense of the permitting scheme, neither of which we find to be persuasive. First, the EPA argues that the nutrient management plan does not, itself, constitute an effluent limitation guideline but is, instead, “simply a planning tool” to help CAFOs comply with the effluent limitations. Accordingly, EPA contends that it is not statutorily compelled to require permitting authority review of the plans. We reject this argument. For one thing, we believe that the terms of the nutrient management plans are themselves effluent limitations, for reasons we state in Section A.l.b, infra. By failing to require permitting authority review of nutrient management plans, the CAFO Rule thus allows permits to issue that do not assure compliance with all applicable effluent limitations. Even assuming, arguendo, that EPA is correct and the nutrient management plan is not, itself, an effluent limitation, EPA’s argument still fails on its own terms. For while EPA denies that the nutrient management plan is itself an effluent limitation, even the EPA concedes, as it must, that the requirement to develop and implement a nutrient management plan is an effluent limitation; this requirement is, after all, one of the “best management practices” required by the CAFO Rule. See 40 C.F.R. § 412.4(c)(1). The CAFO Rule— by failing to provide for permitting authority review — still does not ensure that each Large CAFO has, in fact, developed and implemented a nutrient management plan that satisfies the requirements of 40 C.F.R. § 412(c)(1). Second, the EPA argues that there is no need for permitting authority review because the Rule provides Large CAFOs with little room for discretion — and thus little room for error — in setting their waste application rates. This is true, the EPA argues, because the Rule requires states to develop “technical standards” based on certain “field-specific assessment[s]” and further requires Large CA-FOs to adopt application rates that comply with those technical standards. See 40 C.F.R. § 412.4(c)(2); 40 C.F.R. § 412.4(c)(1). However, while state technical standards will reduce discretion on the part of the Large CAFOs, they will not eliminate it. State technical standards are based on /ieM-specific assessments. But Large CAFOs ultimately set application rates based on siie-specific assessments of the relevant field conditions, as the EPA concedes in the Preamble to the Rule. See Preamble to the Final Rule at 7209 (“Today’s rule requires Large CAFOs to determine and implement site-specific nutrient application rates that are consistent with the technical standards for nutrient management established by the permitting authority.”) (emphasis added); see also id. at 7213 (“The nutrient management plan is the tool CAFOs must use to assess soil and other field conditions at their operation ... to determine the site-specific nitrogen or phosphorus-based rate at which manure, litter, and other process wastewaters are to be applied.”) (emphasis added). By not providing for permitting authority review of these application rates, the CAFO Rule fails to adequately prevent Large CAFOs from “misunderstanding or misrepresenting” the application rates they must adopt in order to comply with state technical standards. The CAFO Rule does not ensure that the Large CA-FOs will, in fact, develop nutrient management plans — and waste application rates— that comply with all applicable effluent limitations and standards. b. Failure to Require that the Terms of the Nutrient Management Plans be Included in the NPDES Permits The Clean Water Act unquestionably provides that all applicable effluent limitations must be included in each NPDES permit. See 33 U.S.C. §§ 1311(a), 1311(b), 1342(a); see also Am. Paper Inst., Inc. v. EPA, 996 F.2d 346, 349 (D.C.Cir.1993) (noting that the Clean Water Act “mandates that every permit contain [inter alia ] effluent limitations that reflect the pollution reduction achievable by using technologically practicable controls”). What the parties here dispute is whether the terms of the nutrient management plans, themselves, constitute effluent limitations that must be included in the NPDES permits. As we have already stated, rather than setting forth numerical effluent limitations for land application of manure, the CAFO Rule establishes non-numerical effluent limitations in the form of best management practices. See 40 C.F.R. § 412.4. Among these best management practices is the requirement that CAFOs “develop and implement a nutrient management plan” that, inter alia, sets application rates that minimize phosphorus and nitrogen transport. See 40 C.F.R. § 412.4(c)(1). The EPA readily acknowledges that the requirement to develop and implement a nutrient management plan is a non-numerical effluent limitation, but argues that — ■ under the wording of this requirement— the terms of the nutrient management plans themselves do not constitute the non-numerical effluent limitations. Accordingly, EPA argues that the terms of the nutrient management plans need not be included in the NPDES permits. We believe that the EPA’s argument is foreclosed by the statutory definition of effluent limitation. The Clean Water Act defines effluent limitation to mean “any restriction established by a State or the Administrator on quantities, rates, and concentrations of chemical, physical, biological, and other constituents which are discharged from point sources ...” 33 U.S.C. § 1362(11) (emphasis added). There is no doubt that under the CAFO Rule, the only restrictions actually imposed on land application discharges are those restrictions imposed by the various terms of the nutrient management plan, including the waste application rates developed by the Large CAFOs pursuant to then- nutrient management plans. Indeed, the requirement to develop a nutrient management plan constitutes a restriction on land application discharges only to the extent that the nutrient management plan actually imposes restrictions on land application discharges. To accept the EPA’s contrary argument — that requiring a nutrient management plan is itself a restriction on land application discharges — is to allow semantics to torture logic. Because we believe that the terms of the nutrient management plans constitute effluent limitations, we hold that the CAFO Rule — by failing to require that the terms of the nutrient management plans be included in NPDES permits — violates the Clean Water Act and is otherwise arbitrary and capricious in violation of the Administrative Procedure Act. 2. Lack of Public Participation The Environmental Petitioners also argue, and we here find, that the permitting scheme established by the CAFO Rule violates the Clean Water Act’s public participation requirements and is otherwise arbitrary and capricious under the Administrative Procedure Act. Congress clearly intended to guarantee the public a meaningful role in the implementation of the Clean Water Act. The Act unequivocally and broadly declares, for example, that “[pjublic participation in the development, revision, and enforcement of any regulation, standard, effluent limitation, plan, or program established by the Administrator or any State under this Act shall be provided for, encouraged, and assisted by the Administrator and the States.” 33 U.S.C. § 1251(e). Consistent with this demand, the Act further provides that there be an “opportunity for public hearing” before any NPDES permit issues, see 33 U.S.C. §§ 1342(a), 1342(b)(3); that a “copy of each permit application and each permit issued under this section [1342] shall be available to the public,” see 33 U.S.C. § 1342(j); and that “any citizen” may bring a civil suit for violations of the Act, see 33 U.S.C. § 1365(a). The CAFO Rule deprives the public of the opportunity for the sort of regulatory participation that the Act guarantees because the Rule effectively shields the nutrient management plans from public scrutiny and comment. Admittedly, the Preamble to the Rule indicates that the “EPA expects that the permitting authority will make this information available to the public upon request,” see Preamble to the Final Rule at 7233 (emphasis added); however, the Rule provides no assurance that EPA’s expectations will be satisfied. Not only does the CAFO Rule fail to require that the terms of the nutrient management plans be included in the NPDES permits, it also fails to provide the public with any other means of access to them. After all, the Rule- provides only that a “copy of the CAFO’s site-specific nutrient management plan must be maintained on site and made available to the Director [of the state permitting authority] ■ upon request.” 40 C.F.R. § 122.42(e)(2)(ii). The Rule does not similarly require that copies of the nutrient management plans be made available to the public by the CAFOs. This scheme violates the Act’s public participation requirements in a number of respects. First and foremost, in light of our holding that the terms of the nutrient management plans constitute effluent limitations that should have been included in NPDES permits, the CAFO Rule deprives the public of its right to assist in the “development, revision, and enforcement of ... [an] effluent limitation.” 33 U.S.C. § 1251(e). (emphasis added). More specifically, the CAFO Rule prevents the public from calling for a hearing about — and then meaningfully commenting on — NPDES permits before they issue. See 33 U.S.C. §§ 1342(a), 1342(b)(3). The CAFO Rule also impermissibly compromises the public’s ability to bring citizen-suits, a “proven enforcement tool” that “Congress intended [to be used... ] to both spur and supplement government enforcement actions.” Clean Water Act Amendments of 1985, Senate Environment and Public Works Comm., S.Rep. No. 50, 99th Cong., 1st Sess. 28 (1985). Under the CAFO Rule, as written, citizens would be limited to enforcing the mere requirement to develop a nutrient management plan, but would be without means to enforce the terms of the nutrient management plans because they lack access to those terms. This is unacceptable. And even assuming, arguendo, that the nutrient management plans did not themselves constitute effluent limitations, we would still hold that the CAFO Rule violates the Act’s public participation requirements. Nutrient management plans are, even under the EPA’s own theory of the CAFO Rule, a critical indispensable feature of the “plan, or program established by the Administrator or any State” in order to regulate Large CAFO land application discharges. 33 U.S.C. § 1251(e). The EPA itself has stated in the Preamble to the Rule that “the only way to ensure that non-permitted point source discharges of manure, litter, or process wastewaters from CAFOs do not occur is to require ... [land application] in accordance with site specific nutrient management practices.” Preamble to the Final Rule at 7198. Since nutrient management plans embody all the relevant “site specific nutrient management practices,” it is clear that, even according to the EPA, nutrient management plans are a sine qua non of the “regulation, standard, plan, or program” it established to regulate land application discharges. 33 U.S.C. § 1251(e). Given that the CAFO Rule forestalls— rather than “provid[es] for, encourag[es], and assist[s]” — public participation in the development and enforcement of nutrient management plans, and given that nutrient management plans are an important “regulation, standard, effluent limitation, plan or program” established by the EPA to regulate land application discharges, the CAFO Rule violates the plain dictates of 33 U.S.C. § 1251(e). 3. The Duty to Apply The Farm Petitioners also challenge the permitting scheme established by the CAFO Rule. They contend that the EPA has exceeded its statutory jurisdiction by requiring all CAFOs to either apply for NPDES permits or otherwise demonstrate that they have no potential to discharge. We agree and grant their petition in this regard. The Clean Water Act authorizes the EPA to regulate, through the NPDES permitting system, only the discharge of pollutants. The Act generally provides, for example, that “Except as in compliance [with all applicable effluent limitations and permit restrictions,] the discharge of any pollutant by any person shall be unlawful.” 33 U.S.C. § 1311(a) (emphasis added). Consistent with this prohibition, the Act authorizes the EPA to promulgate effluent limitations for — and issue permits incorporating those effluent limitations for — the discharge of pollutants. Section 1311 of Title 33 provides that “[e]ffluent limitations ... shall be applied to all point sources of discharge of pollutants,” see 33 U.S.C. § 1311(e). Section 1342 of the same Title then gives NPDES authorities the power to issue permits authorizing the discharge of any pollutant or combination of pollutants. See 33 U.S.C. § 1342(a)(1) (“the Administrator may, after opportunity for public hearing, issue a permit for the discharge of any pollutant, or combination of pollutants ”) (emphasis added); see also 33 U.S.C. § 1342(b) (authorizing states to administer permit programs for “discharges into navigable waters”). In other words, unless there is a “discharge of any pollutant,” there is no violation of the Act, and point sources are, accordingly, neither statutorily obligated to comply with EPA regulations for point source discharges, nor are they statutorily obligated to seek or obtain an NPDES permit. . Congress left little room for doubt about the meaning of the term “discharge of any pollutant.” The Act expressly defines the term to mean “(A) any addition of any pollutant to navigable waters from any point source, [or] (B) any addition of any pollutant to the waters of the contiguous zone or the ocean from any point source other than a vessel or other floating craft.” 33 U.S.C. § 1362(12). Thus, in the absence of an actual addition of any pollutant to navigable waters from any point, there is no point source discharge, no statutory violation, no statutory obligation of point sources to comply with EPA regulations for point source discharges, and no statutory obligation of point sources to seek or obtain an NPDES permit in the first instance. The CAFO Rule violates this statutory scheme. It imposes obligations on all CAEOs regardless of whether or not they have, in fact, added any pollutants to the navigable waters, i.e. discharged any pollutants. After all, the Rule demands that every CAFO owner or operator either apply for a permit — and comply with the effluent limitations contained in the permit — or affirmatively demonstrate that no permit is needed because there is “no potential to discharge.” See 40 C.F.R. §§ 122.23(d) and (f). In the EPA’s view, such demands are appropriate because all CAFOs have the potential to discharge pollutants. See Preamble to the Final Rule at 7202 (“The ‘duty to apply’ provision is based on the presumption that every CAFO has a potential to discharge.”). While we appreciate the policy considerations underlying the EPA’s approach in the. CAFO Rule, however, we are without authority to permit it because it contravenes the regulatory scheme enacted by Congress; the Clean Water Act gives the EPA jurisdiction to regulate and control only actual discharges' — not potential discharges, and certainly not point sources themselves. See Natural Resources Defense Council v. EPA, 859 F.2d 156, 170 (D.C.Cir.1988) (noting that “the [Act] does not empower the agency to regulate point sources themselves; rather, EPA’s jurisdiction under the operative statute is limited to regulating the discharge of pollutants”). To the extent that policy considerations do warrant changing the statutory scheme, “such considerations address themselves to Congress, not to the courts.” MCI Telecommunications Corp. v. AT & T, Co., 512 U.S. 218, 234, 114 S.Ct. 2223, 129 L.Ed.2d 182 (1994) (citation omitted). EPA’s other arguments are also unavailing. The EPA principally attempts to derive support for its “duty to apply” provision from the statutory definition of point source. EPA argues that point source, is defined to mean not only “any discernible, confined and discrete conveyance” from which pollutants “are” discharged, but also “any discernible, confined and discrete conveyance” from which pollutants “may be” discharged. 33 U.S.C. § 1362(14). The EPA cannot, however, point to any provision of the statute that gives operational effect to the “may be” language in the manner in which the EPA seeks to do so here. The EPA points, for example, to 33 U.S.C. § 1311(e). Yet that section provides not that effluent limitations shall be applied to all point sources, end of story, but that effluent limitations shall be applied “to all point sources of discharge of pollutants in accordance with the provisions of this chapter.” 33 U.S.C. § 1311(e) (emphasis added). Thus, while point sources are statutorily defined to include potential dischargers, effluent limitations can, pursuant to 33 U.S.C. § 1311(e), be applied only to “point sources of discharge of pollutants,” i.e. those point sources that are actually discharging. .Id. The EPA also argues that' the “duty to apply” provision is consistent with the Act’s goal of not just reducing, but eliminating water pollution. It is true that the duty to apply provision is consistent with the broad goal of eliminating water pollution. However, the duty to apply flatly contravenes the statute’s text, which more specifically defines — and circumscribes— the powers that Congress conferred upon the EPA in order to effectuate the Clean Water Act’s goals. Principles of statutory construction forbid us from sanctioning EPA conduct that is plainly inconsistent with a statute’s specific text. See Caminetti v. United States, 242 U.S. 470, 485, 37 S.Ct. 192, 61 L.Ed. 442 (1917) (“It is elementary that the meaning of a statute must, in the first instance, be sought in the language in which the act is framed, and if that is plain ... the sole function of the courts is to enforce it according to its terms.”). For all these reasons, we believe that the Clean Water Act, on its face, prevents the EPA from imposing, upon CAFOs, the obligation to seek an NPDES permit or otherwise demonstrate that they have no potential to discharge. See Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-43, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984) (where Congress has “directly spoken to the precise question at issue” and “the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress.”) (footnote omitted). B. Challenges to the Types of Discharges Regulated 1. Regulatory Exemption for “Agricultural Stonmvater” Discharges As stated in the background section, supra, the CAFO Rule generally provides that discharges from a land application area under the control of a CAFO are subject to NPDES requirements. See 40 C.F.R. § 122.23(e). However, the Rule, like the Clean Water Act itself, carves out an exception where the discharge in question is “an agricultural storm water discharge,” id. — a category of discharges that the Act exempts from regulation via the statutory definition of “point source.” See 33 U.S.C. § 1362(14). More specifically, the Rule classifies, as agricultural storm-water, any “precipitation-related discharge of manure, litter, or process wastewater from land areas under the control of a CAFO” where the “manure, litter or process wastewater has [otherwise] been applied in accordance with site specific nutrient management practices that ensure appropriate agricultural utilization.” 40 C.F.R. § 122.23(e). The Environmental Petitioners contend that this approach violates the Clean Water Act and is otherwise arbitrary and capricious in violation of the Administrative Procedure Act because the Clean Water Act’s definition of “point source” requires regulation of all CAFO discharges, notwithstanding the fact that agricultural stormwater discharges are otherwise deemed exempt from regulation. We disagree. The Act defines the term “point source” as follows: “[P]oint source” means any discernible, confined, and discrete conveyance, including but not limited to any pipe, ditch, channel, tunnel, conduit, well, discrete fissure, container, rolling stock, concentrated animal feeding operation, or vessel or other floating craft, from which pollutants are or may be discharged. This term does not include agricultural stormwater discharges and return flows from irrigated agriculture. 33 U.S.C. § 1362(14) (emphasis added). Contrary to the views of the Environmental Petitioners, we find that this provision is self-evidently ambiguous as to whether CAFO discharges can ever constitute agricultural stormwater. Here, the Act expressly defines the term point source to include “concentrated animal feeding operations;” the Act expressly defines “point source” to exclude “agricultural stormwa-ter;” and the Act makes absolutely no attempt to reconcile the two. Congress has not addressed the precise issue the Environmental Petitioners put before us, and, as a result, the operative question we must consider becomes, pursuant to Chevron, whether the CAFO Rule’s exemption for “precipitation-related” land application discharges is grounded in a “permissible construction” of the Clean Water Act. Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 843, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). The EPA reads the Act’s definition of “point source” as generally authorizing the regulation of CAFO discharges, but exempting such discharges from regulation to the extent that they constitute agricultural stormwater. We think this is a reasonable construction in light of the legislative purpose of the agricultural stormwater exemption and given precedent from this circuit. With respect to legislative purpose, we believe it reasonable to conclude that when Congress added the agricultural stormwater exemption to the Clean Water Act, it was affirming the impropriety of imposing, on “any person,” liability for agriculture-related discharges triggered not by negligence or malfeasance, but by the weather — even when those discharges came from what would otherwise be point sources. There is no authoritative legislative history to the contrary. The Environmental Petitioners, for example, cite legislative history from 1972 in support of their position; however, the agricultural storm-water exemption was not added to the Clean Water Act until a full fifteen years later, when Congress passed the Water Quality Act of 1987. See Water Quality Act of 1987, Pub.L. No. 100-4 § 503, 101 Stat. 7 (1987). It would be improper for us to rely on statements from 1972 in order to resolve an ambiguity that was not created until 1987. In our view, prior legislative history is a hazardous basis for inferring the intent of a subsequent Congress, in the same way that “subsequent legislative history is a hazardous basis for inferring the intent of an earlier Congress.” Pension Benefit Guaranty Corp. v. LTV Corp., 496 U.S. 633, 650, 110 S.Ct. 2668, 110 L.Ed.2d 579 (1990) (emphasis added) (citation omitted). And, in any event, none of the legislative history from 1972 comes close to casting doubt on the construction we permit here. Precedent from this circuit also supports the construction that the EPA advances and we here permit. In Concerned Area Residents for the Environment v. Southview Farm, this Court considered the agricultural stormwater exemption and its statutory relationship to point source discharges, specifically CAFO discharges. 34 F.3d 114 (2d Cir.1994). The essence of the Court’s holding was not, as Environmental Petitioners contend, that discharges from an area under the control of a CAFO can never qualify for the agricultural stormwa-ter exemption. Rather, the Court held that a discharge from an area under the control of a CAFO can be considered either a CAFO discharge that is subject to regulation or an agricultural stormwater discharge that is not subject to regulation. Whether or not a discharge is regulable turned, in the Court’s view, on the primary cause of the discharge. That is why the Court wrote that a discharge could be regulated, and liability imposed, where “the run-off 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 run-off could not be classified as ‘stormwater.’ ” Id. at 121. We believe that the CAFO Rule comports both with Congress’ intent in enacting the agricultural stormwater exemption and with our holding in Southview Farm. So far as Congress’ intent is concerned, while the Rule holds CAFOs liable for most land application discharges, it prevents CAFOs from being held liable for “precipitation-related discharge^]” where “manure, litter or process wastewater has [otherwise] been applied in accordance with site specific nutrient management practices that ensure appropriate agricultural utilization.” 40 C.F.R. § 122.23(e). In other words, like the Clean Water Act itself, the CAFO Rule seeks to remove liability for agriculture-related discharges primarily caused by nature, while maintaining liability for other discharges. So far as our holding in Southview Farm is concerned, discharges from land areas under the control of a CAFO can and should generally be regulated, but where a CAFO has taken steps to ensure appropriate agricultural utilization of the nutrients in manure, litter, and process wastewater, it should not be held accountable for any discharge that is primarily the result of “precipitation.” We also find unpersuasive the only other significant complaint the Environmental Petitioners lodge against the CAFO Rule’s agricultural stormwater exemption — namely that it is unreasonable, and hence improper, for the EPA to construe the term “agricultural” as encompassing any storm-water discharge from a land area under the control of a CAFO. The Environmental Petitioners contend that CAFOs must be viewed as industrial, not agricultural. We disagree. Dictionaries from the period in which the agricultural stormwater exemption was adopted define “agriculture” or “agricultural” in a way that can permissibly be construed to encompass CAFOs. For example, Webster’s New World Dictionary defined the term “agriculture” to include, inter alia, “work of cultivating the soil, producing crops, and raising livestock.” Webster’s New World Dictionary Of AMERICAN English 26 (3rd College Ed.1988). The Oxford English Dictionary similarly defined agriculture to include, inter alia, “cultivating the soil,” “including the allied pursuits of gathering in the crops and rearing live stock.” I The Oxford English Dictionary 267 (2d Ed.1989). Here, there is no question that CAFOs “rais[e]” or “rear” livestock and, because land-applied manure is used as fertilizer, “cultivat[e] the soil” as well. Cf. Preamble to the Final Rule at 7197 (“When manure or process wastewater is applied in accordance with practices designed to ensure appropriate agricultural utilization of nutrients, it ... fulfills an important agricultural purpose, namely the fertilization of crops ... ”). As a result, we cannot say that the EPA has impermissibly treated CAFOs as agricultural in character. Additionally, we note again that the CAFO Rule classifies precipitation-related discharges as agricultural stormwater only where CAFOs have otherwise applied “manure, litter or process wastewater ... in accordance with site specific nutrient management practices that ensure appropriate agricultural utilization.” 40 C.F.R. § 122.23(e) (emphasis added). Thus, even the CAFO Rule’s application of the agricultural stormwater exemption is expressly tethered to agricultural endeavors. Accordingly, for all these reasons, we reject the Environmental Petitioners’ challenge to the CAPO Rule’s exemption for agricultural stormwater discharges because we believe that the exemption is premised on a permissible construction of the Act. 2. Regulation of “Uncollected” Discharges The Farm Petitioners contend that the CAFO Rule violates the Clean Water Act because it regulates “uncollected” discharges from land areas under the control of a CAFO; in effect, the Farm Petitioners claim that runoff from land application areas, unless “collected” or “channelized” at the land application area itself, does not constitute a point' source discharge. We reject this claim because, in our view, regardless of whether or not runoff is collected at the land application area, itself, any discharge from a land area under the control of a CAFO is a point source discharge subject to regulation because it is a discharge ñ-om a CAFO. To evaluate the Farm Petitioners’ claim we turn, once again, to the statutory definition of point source. The term “point source” is defined to mean, in relevant part, “any discernible, confined and discrete conveyance, including but not limited to any pipe, ditch, channel, tunnel, conduit, well, discrete fissure, container, rolling stock, concentrated animal feeding operation, or vessel or other floating craft, from which pollutants are or ■ may be discharged.” 33 U.S.C. § 1362(14) (emphasis added). Given that the Act expressly defines “point source” to include concentrated animal feeding operations, the Farm Petitioners can prevail on their challenge only if we find that the Act prohibits classifying a land application discharge as a discharge “from” a CAFO. We believe, however, that the Act not only permits, but demands, that land application discharges be construed as discharges “from” a CAFO to the extent that they are not otherwise agricultural stormwater. As this Court previously held in Catskill Mountains Chapter of Trout Unlimited, Inc. v. City of New York, the term point source refers to “the proximate source from which the pollutant is directly introduced to [a] destination water body.” See 273 F.3d 481, 493 (2d Cir.2001). Here, CAFOs are unquestionably “the proximate source” of any discharge of pollutants from land application areas under their control to the surface waters (again, except where those discharges are agricultural stormwa-ter). But for the application of manure by the CAFO to the land, there could never be a discharge of pollutants from the land to the surface waters. Thus, any land application discharge that is not agricultural stormwater is, definitionally, a discharge “from” a CAFO that can be regulated as a point source discharge. Contrary to the contentions of the Farm Petitioners, whether the land application run-off has been “collected” or “channelized” at the land application area is irrelevant to the' determination regarding whether such run-off constitutes a CAFO discharge. To be sure, the Act does generally contemplate that discharges be “channelized” in order to fall within the EPA’s regulatory jurisdiction; that is why the term “point source” is defined as “discrete, discernible, conveyances.” However, a CAFO is, itself, a “channel” under the Act — it is, of course, expressly included in the list of examples of the types of “point sources” the EPA may regulate. Thus, any discharge “from” a CAFO is already a point source discharge. Requiring that manure, litter, or process wastewater be separately channelized at the land application site before any runoff could be considered a “point source discharge” would be, in effect, to impose a requirement not contemplated by the Act: that pollutants be channelized not once but twice before the EPA can regulate them. Even assuming that the Act did not plainly require that land application discharges generally be regulated as point source discharges, we would find that the EPA has permissibly construed the statute in defining, as a “discharge from a CAFO,” the “discharge of manure, litter or process wastewater to waters of the United States from a CAFO as a result of the application of that manure, litter or process wastewa-ter by the CAFO to land areas under its control.” 40 C.F.R. § 122.23(e). Land application areas are, after all, an integral and indeed indispensable part of CAFO operations. CAFOs depend on them to receive the volumes of manure their animals generate; as we noted in the background section above, “[s]everal estimates indicate that 90% of CAFO-generated waste is land applied.” EPA, State Compendium: Progeams And Regulatory Activities Related To Animal Feeding Operations 13 (May 2002). Given this fact and given that, under the Rule, only discharges from land application areas “under [the] control” of a CAFO are subject to regulation, see 40 C.F.R. § 122.23(e), the EPA could quite reasonably conclude that runoff from a land application area is runoff from a CAFO. Thus, we reject the challenge to the CAFO Rule’s regulation of land application discharges, including “uncollected” discharges. C. Challenges to the CAFO Rule Effluent Limitations The Environmental Petitioners bring a host of challenges to: (1) the