The U.S. Court of Appeals for the 5th Circuit extended a judicial stiff-arm to the U.S. Environmental Protection Agency (the “EPA”) on March 15, 2011 by ruling that concentrated animal feeding operations (“CAFOs”) cannot be required to obtain Clean Water Act (“CWA”) permits unless they actually discharge manure into a U.S. waterway1 .  The court held that the EPA exceeded its authority in its 2008 “Final CAFO Rule” by requiring CAFOs to apply for CWA permits if they might discharge.

The predecessor to the Final CAFO Rule, which was the 2003 “CAFO Rule”, was itself struck down in 2005 by the U.S. Court of Appeals for the 2nd Circuit in the now-infamous Waterkeeper case because the CWA only required permits for producers who actually discharge2 .  Prior to Waterkeeper, the EPA had sought to require permits for operations that had the mere potential to discharge.  (Sound familiar?)  By striking down the latest incarnation of the EPA’s rule affecting potential discharges, the 5th Circuit confirmed that there must be an actual discharge to trigger the CWA and thus, the EPA’s authority.

1 National Pork Producers Council v. United States EPA, 2011 U.S. App. LEXIS 5018 (5th Cir. Mar. 15, 2011).

2 Waterkeeper Alliance, Inc. v. Environmental Protection Agency, 399 F.3d 486 (2d Cir. 2005).

This column is published for informational purposes only. It should not be construed as legal advice and is not intended to create an attorney client relationship. The views expressed are those of the author and do not necessarily reflect the views of the author’s law firm or its individual partners.