September 26, 2012Newsletter

Federal CAFO Regulations Remove “Propose to Discharge” Permitting Requirement

Agribusiness, Food and Beverage Newsletter

The U.S. Environmental Protection Agency (USEPA) has revised its concentrated animal feeding operation (CAFO) permit regulations to remove the requirement that CAFOs that “propose to discharge” must seek permit coverage under the National Pollutant Discharge Elimination System (NPDES).  The July 2012 revision was in response to a 2011 U.S. Court of Appeals for the Fifth Circuit decision that vacated portions of USEPA’s 2008 CAFO rule.



In November 2008, EPA issued a final rule that revised the agency’s CAFO permitting requirements in response to the U.S. Court of Appeals for the Second Circuit’s decision in Waterkeeper Alliance et al v. EPA, 399 F.3d 486 (2d Cir. 2005).  The 2008 rule required that CAFO owners or operators that discharge or “propose to discharge” apply for a NPDES permit.  The EPA clarified that a CAFO “proposes to discharge” if, based on an “objective assessment,” the CAFO is designed, constructed, operated, or maintained such that a discharge will occur.  The 2008 rule also included a voluntary option for unpermitted CAFOs to certify to the permitting authority that the CAFO does not discharge or propose to discharge.  In March 2011, the U.S. Court of Appeals for the Fifth Circuit decision in National Pork Producers Council v. EPA, 635 F.3d 738 (2011), vacated the portion of the 2008 CAFO rule that required CAFOs that “propose to discharge” to apply for a NPDES permit.  USEPA’s July 2012 revisions recognize the outcome of the National Pork Producers case.


EPA’s Revised Final CAFO Rule

USEPA’s revised final rule has removed the requirement that CAFOs that “propose to discharge” are required to obtain a NPDES permit.  Specifically, as articulated by the National Pork Producers Council decision, USEPA does not have the authority to require CAFOs to apply for or obtain a wastewater discharge permit unless there is an actual discharge of pollutants from the facility into a navigable water. 


The final rule also removed the option for CAFO owners or operators to voluntarily certify that a CAFO does not discharge or propose to discharge. 


USEPA did not provide an opportunity to comment on the final rule because, according to the agency, it had no discretion in the language of the rule given the specific directive of the Fifth Circuit’s National Pork Producers Council decision.


Impact to Your Business

Owners and operators of CAFOs must comply with the requirements of the applicable permitting agency (i.e. a state agency or USEPA).  USEPA has designated a majority of states to administer the NPDES program within a state permit program.  Therefore, in many cases, the regulations of the state permitting agency are the applicable regulations for CAFOs and a state’s regulations may be more restrictive than USEPA’s.   For example, the State of Wisconsin regulates CAFOs via its designated authority under the Clean Water Act and under state statutes that are more stringent than USEPA’s regulations.  Thus, practically speaking, the July 2012 final USEPA rule has no direct impact on Wisconsin’s CAFO regulations.

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