Thank you Tom for posting the information and Wally for donating your
incredible legal talent and expertise.  People like you give me hope at a
time when so much seems hopeless from the latest fast track Keystone XL
pipeline, clean air and water to losing our last wilderness.  Thank you
both!   Phyllis
Tom: 


The answers to your questions are:


1. CAFOs are designated as point sources, and as such, they cannot
discharge pollutants to waters of the United States without an NPDES
permit. What the 5th Circuit court said was that the way the Clean Water
Act is written, a point source is not required to obtain a permit, but if
it discharges without a permit, it is subject to penalties. For normal
industries and municipal wastewater facilities, they plan to discharge
and the discharges are daily. So they have an incentive to get a permit
instead of paying substantial daily fines. CAFOs, on the other hand, do
not discharge on a regular basis, so they make the calculation that it is
better not to have a permit and just pay the penalty if there does happen
to be a discharge and they get caught. So your observation is on the
right track. As I said in my comments, the real solution is for Congress
to amend the Clean Water Act to effectively address pollution from CAFOs.


2. Neither. It is certainly not an oversight. I believe EPA is getting
political pressure to back off.


3. My work is pro bono. The national Sierra Club certainly won't
contribute and the Chapter has no money.


Wally Taylor

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