Ruling On CAFO NPDES Permit Requirements

In a case involving the requirement for Concentrated Animal Feeding Operations (CAFO) to obtain a National Pollutant Discharge Elimination System (NPDES) permit, the U.S. Fifth Circuit Court of Appeals has issued an opinion that there is no “duty to apply” for a NPDES permit in the Clean Water Act. Only CAFOs that have to obtain permits are those that are actually discharging pollutants to waters of the United States.

EPA revised the CAFO Rules in 2003, and required all CAFOs with the “potential to discharge” to obtain a NPDES permit. The industry challenged that requirement and the U.S. Court of Appeals for the Second Circuit agreed that the Clean Water Act did not authorize EPA to regulate facilities that do not actually discharge. In 2008, EPA issued a revised rule, which required all CAFOs that discharge or “propose to discharge” to obtain a NPDES permit. The current ruling relates the 2008 revised CAFO rules.

The Court ruling applies to EPA CAFO rules only; individual States may have additional requirements on CAFO.

Caltha LLP provides expert environmental consultant services in Nebraska to obtain air and wastewater permits, evaluate regulatory requirements, and to develop cost effective compliance programs.

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