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EPA Proposes Revised Clean Water Act Regulations for CAFOs in Response to Waterkeeper Decision

Jun.30.2006

In today's Federal Register, EPA proposes revised Clean Water Act regulations for CAFOs in response to the 2005 Waterkeeper decision from the Second Circuit that vacated and remanded portions of EPA's 2003 final rule. EPA is proposing to revise the National Pollutant Discharge Elimination System ("NPDES") permitting requirements and the Effluent Limitations Guidelines ("ELGs") for CAFOs. The major aspects of the proposed rule include:

  • In response to the Second Circuit's ruling that EPA cannot require CAFOs to apply for an NPDES permit in the absence of an actual discharge, EPA proposes to require only those CAFOs that "discharge or propose to discharge" to apply for NPDES permit coverage. It is up to individual CAFOs to decide whether or not permit coverage is necessary.
  • EPA proposes to maintain the agricultural stormwater exemption from the 2003 rule, which was upheld by the Second Circuit. EPA rejected the request from citizens' groups to require an NPDES permit for stormwater discharges from land application areas where the CAFO complies with EPA's manure management practices.
  • In response to the Second Circuit's ruling on agency and public review of nutrient management plans ("NMPs"), EPA proposes to require CAFOs seeking NPDES permit coverage to submit their NMPs with the notice of intent for general permit coverage or with the application for an individual permit, and advances several proposals for the agency and public review process. EPA emphasizes that the agency and public review provisions must be structured properly in order to preserve the benefits of a general permitting system.
  • EPA's proposal retains the July 31, 2007 deadline for when permit applications and NMPs will need to be submitted, apparently to emphasize that CAFOs should be developing their NMPs now. The July 2007 deadline may prove controversial, as it may not allow sufficient time for the states to adapt their programs to the revised regulations.

EPA will accept public comments on the proposed rule until August 14, 2006. To see the proposed rule and preamble published today, click here.

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Richard E. Schwartz
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Email: rschwartz@crowell.com

Kirsten L. Nathanson
Partner – Washington, D.C.
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Email: knathanson@crowell.com