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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