Last week, the U.S. Court of Appeals for the Seventh Circuit in a case involving Clean Water Act permits for stormwater management around construction sites has created a split with the Second Circuit over its decision in February on the 2003 concentrated animal feeding operations rule. 

The Second Circuit rule that CAFOs don’t have to apply for a CWA National Pollutant Discharge and Elimination System permit. This court also ruled that the Nutrient Management Plans called have to be reviewed and approved by the regulatory agency, and available to the public for review and comment, before a general permit can be granted to a CAFO. 

The Seventh Circuit took the opposite position, holding that the Stormwater Management Plans called for in the CWA stormwater permitting program don’t have to be part of a construction site’s stormwater permit, and therefore not reviewed by the regulatory agency or the public. 

The district courts gave opposing views on what permits a producer must have for a CAFO. Since there is no clear consensus, the issue may end up with the Supreme Court.

National Pork Producers Council