e-Bulletin: EPA Issues a Final Rule Regarding Concentrated Animal Feeding Operations

On October 31, 2008, the U.S. Environmental Protection Agency (EPA) issued a final rule requiring concentrated animal feeding operations (CAFOs) to safely manage manure.  The final rule was issued in response to a February 2005 federal court decision, Waterkeeper Alliance et al. v. EPA (2005) 399 F.3d 486, that upheld most of EPA’s prior CAFO rule, but invalidated those portions governing nutrient management plans and permit application requirements.  The new rule contains the following significant requirements:

·        All owners and/or operators of CAFOs that discharge to the waters of the U.S. must apply for a National Pollutant Discharge Elimination System (NPDES) permit under the Federal Clean Water Act.  Previously, all CAFO operators were required to apply for permit coverage, unless they could prove that they did not discharge to waters of the U.S.  The new rule limits this requirement to CAFOs that actually discharge to waters of the U.S.

·        A discharger’s NPDES permit application must now include a nutrient management plan (NMP).  Although the previous CAFO rules required dischargers to develop NMPs, the new rule requires the NMP to be reviewed by the permitting authority, and be made available for public comment before permit coverage is granted.  Portions of the NMP will then be incorporated as enforceable terms of the permit.

·        CAFO operators who do not discharge or propose to discharge may now obtain certification as zero dischargers from the EPA and will not be required to obtain permit coverage.

In addition to the above, the new rule includes technical clarifications regarding water quality-based effluent limitations and use of best management practices to meet zero discharge requirements. 

Best Best & Krieger LLP routinely advises its clients on the implications of NPDES permit requirements, including requirements aimed at CAFOs.  If you have any questions or comments regarding the new CAFO rule, or the Clean Water Act in general, please contact your BB&K representative or any of the following attorneys:

Cyndy Day Wilson

William Thomas

Shawn Hagerty

Andre Monette
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Disclaimer: BB&K eBulletins are not intended as legal advice. Additional facts or future developments may affect subjects contained herein. Seek the advice of an attorney before acting or relying upon any information in this communiqué. ©2008 Best Best & Krieger LLP