When Do Air Emissions Constitute a Discharge to Waters of the United States? Any Time the Emissions Reach Waters of the United States?

In a fascinating post today, my colleague from the American College of Environmental Lawyers, Patricia Finn Braddock, reported on a case at the intersection of the Clean Water Act and the Clean Air Act that could have significant implications for any source of air emissions that can credibly be alleged to affect waters of the United States.  The case is Rose Acre Farms v. NC Department of Environment and Natural Resources.

I won’t steal Pat’s thunder and you need to read her post if only because I cannot compete with (and had enough willpower not to steal) her title.  However, the quick summary is that the court concluded that, where there is evidence that air emissions of dust from ventilation systems in poultry confinement houses reach waters subject to NPDES jurisdiction, those emissions may be considered a point source “discharge” that would then require an NPDES permit.

It’s hard to know where to begin in considering the implications of such an interpretation.  As members of my tribe might say, I’m sure of one thing – this is good for the lawyers.

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