(hereinafter the Supplemental Proposed Rule). See generally 73 Fed. Reg.
12,321-02. The Supplemental Proposed Rule provided that a CAFO does not
discharge or propose to discharge if “based on an objective assessment of the
conditions at the CAFO, that the CAFO is designed, constructed, operated, and
maintained in a manner such that the CAFO will not discharge.” Id. at 12,339.
Furthermore, if a CAFO operator makes this showing, the operator can apply for
voluntary certification. Id. The benefit of voluntary certification is that, in the
event of a discharge, an unpermitted CAFO will not be liable “for violation of the
duty to apply,” but will still be in violation of the CWA’s prohibition against
unpermitted discharges. Id.
On November 20, 2008, the EPA published the 2008 Rule, which
incorporates the proposed regulations in the Proposed Rule and the
Supplemental Proposed Rule. See 73 Fed. Reg. 70,418 (Nov. 20, 2008). In sum,
the 2008 Rule clarifies the “duty to apply” liability scheme. Id. at 70,423. It
reiterates that CAFOs “propose to discharge” if they are “designed, constructed,
operated, or maintained such that a discharge would occur.” Id. Furthermore,
each CAFO operator is required to make an objective case-by-case assessment
of whether it discharges or proposes to discharge, considering, among other
things, climate, hydrology, topology, and the man-made aspects of the CAFO.
Id. at 70,424. It further clarifies that a CAFO can be held liable for failing to
apply for a permit, in addition to being held liable for the discharge itself. Id. at
70,426. The 2008 Rule also reiterates that certification is voluntary, but if a
CAFO does not certify, in an enforcement proceeding for failing to apply for a
permit, the CAFO would have the burden of proving that it did not propose to
discharge. Id. Finally, with regard to NMPs, the 2008 Rule restates that NMPs
are an enforceable part of an NPDES permit and clarifies that the terms of
NMPs would remain the same as the terms articulated in the 2003 Rule. Id. at