On October 31st the administration approved (on a Friday, of course) a new CAFO (concentrated animal feeding operation) rule that exempts most CAFO operations from having to obtain NPDES permits. The rule was required in part due to a Second Circuit case, Waterkeepers Alliance v. EPA, 399 F.3d 486. That decision held that although EPA could regulate through NDPES permits runoff from fields that have had manure applied to those fields, storm water runoff qualified as exempt “agricultural storm water” if applied at appropriate rates. The decision also held that CAFOs cannot be required to apply for NPDES permits because they have the “potential” to discharge.

The rule tracks these judicial guidelines. First, an owner or operator of a CAFO that discharges or proposes to discharge must apply for an NPDES permit. Second, an unpermitted CAFO may certify to the permitting authority that the CAFO does not discharge or propose to discharge. Next, the EPA clarified how the agricultural stormwater discharge exemption criteria are interpreted for unpermitted Large CAFOs. The EPA is also requiring CAFOs seeking permit coverage to submit their nutrient management plans (NMPs) with their applications for individual permits or notices of intent to be authorized under general permits.

The final rule is available here: http://cfpub.epa.gov/npdes/afo/cafofinalrule.cfm

— James Pray