The information presented herein is not intended to serve as legal advice.  Please consult a licensed Illinois attorney if you wish to obtain legal advice.

Statutory Law

-The Federal Water Pollution Control Act (a.k.a. The Clean Water Act)

The Clean Water Act (CWA) was enacted by Congress to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.  The CWA is the primary legislative source of the U.S. EPA’s authority and responsibility to control and eliminate water pollution.  It prohibits the discharge of any pollutant from any “point source” to waters of the United States except when authorized by a permit issued under the National Pollutant Discharge Elimination System.  The CWA specifically defines the term “point source” to include Concentrated Animal Feeding Operations (CAFOs). 

-The National Pollutant Discharge Elimination System (NPDES)

The NPDES permitting program is administered by the U.S. EPA and authorized states.  NPDES permits, while authorizing some water pollution, place significant restrictions on the quality and character of such.  In general, the NPDES requires dischargers to obtain permits that place limits on the type and quantity of pollutants that can be released into the Nation’s waters. 

-U.S. EPA's NPDES CAFO Rule

The U.S. EPA recently revised its NPDES regulations for CAFOs.  Under the U.S. EPA’s 2008 CAFO Rule, not all CAFOs are required to have NPDES permits.  Only those that discharge or “propose to discharge” must seek permit coverage.  A CAFO “proposes to discharge” if it is “designed, constructed, operated, or maintained such that a discharge will occur.” 40 C.F.R. § 122.23(d).  

Case Law

-Waterkeeper Alliance, Inc., et al. v. EPA, 399 F.3d 486 (2nd Cir. 2005)

The U.S. EPA issued the 2008 CAFO Rule in response to the Second Circuit court’s holding in this case.  The Court vacated and remanded certain portions of the U.S. EPA’s 2003 CAFO regulations. 

-Save the Valley, Inc. v. United States E.P.A., 223 F.Supp.2d 997, 1012-15 (S.D. Ind. 2002)

This case was brought by an environmental group against the U.S. EPA for its failure to ensure that the State of Indiana adopted and enforced adequate NPDES regulations for CAFOs.  The court held that the State of Indiana failed to meet its responsibilities under the CWA.  The State was ordered to bring its CAFO NPDES program into compliance and, if it failed to do so within a prescribed time period, the U.S. EPA to begin the withdrawal of Indiana's NPDES program delegation.

-Rapanos, et al. v. United States, 126 S. Ct. 2208 (2006)

In this case the Supreme Court addressed the question of where the Federal government can exercise its jurisdiction under the CWA.  Specifically, the issue of whether a wetland or tributary may be considered "waters of the United States" under the Act.  The justices issued five separate opinions, with no single opinion commanding a majority of the Court.  This has led to some confusion as to what types of waters are within the jurisdictional reach of U.S. EPA enforcement.  However, the U.S. EPA has issued a guidance document (below) on how the Court’s holding is to be implemented by the Agency.

Research and Supplementary Information

-Illinois Failure to Regulate Concentrated Animal Feeding Operations, Drake Journal of Agricultural Law (Summer 2006)

Guidance Documents

-CWA Citizen Suit Outline

-U.S. EPA Guidance on Clean Water Act Jurisdiction Following the U.S. Supreme Court's Decision in Rapanos v. United States (2008)

Action Initiatives

-ICCAW Press Release

-ICCAW Press Release Background Information

-ICCAW Talking Points

-Water Monitoring Project