Agreeing with similar decisions by the Second and Eighth Circuits, the Fifth Circuit Court of Appeals in March invalidated EPA’s requirement that concentrated animal feeding operations (“CAFOs”) apply for Clean Water Act discharge permits if they “propose” to discharge.

In the case of National Pork Producers Council v. EPA, the Fifth Circuit held that there must be an actual discharge into navigable waters to trigger the CWA’s permitting requirement. Beause most CAFOs are designed, according to the industry, to avoid discharges into navigable waters, the ruling results in essentially eliminating the permit requirement.

Of course, if a CAFO’s operations result in a discharge of pollutants into navigable waters, it could be subject to an enforcement action if it does not have a permit.