(ELGs) for CAFOs: The 2003 rule issued New Source Performance Standards (NSPS) for new sources of swine, poultry, and veal operations. The CWA requires that NSPS be based on what is called the "best available demonstrated control technology." The EPA's 2003 rule required that these new sources meet a "no discharge" standard, except in the case of a 100-year, 24-hour rainfall event (or a less restrictive measure for new CAFOs that voluntarily use new technologies and management practices). The Second Circuit ruled that the EPA did not provide an adequate basis (either in the statute or in evidence) for this portion of the rule. The Second Circuit also required the EPA to go back and provide additional justification for the requirements in the 2003 rule dealing with the "best control technology for conventional pollutants" (BCT) standards for reducing fecal coliform pathogen. Lastly, the court ordered the EPA to provide additional analysis on whether the more stringent "water quality-based effluent permit limitations" (WQBELs) should be required in certain instances for CAFO discharges from land application areas, a policy that the EPA had rejected in the 2003 rule. EPA final rule (2008) The EPA published revised regulations that address the Second Circuit court's decision in Waterkeeper Alliance, Inc. v. EPA on November 20, 2008 (effective December 22, 2008). The 2008 final rule revised and amended the 2003 final rule. The 2008 rule addresses each point of the court's decision in Waterkeeper Alliance v. EPA. Specifically, the EPA adopted the following measures: The EPA replaced the "duty to apply" standard with one that requires NPDES permit coverage for any CAFO that "discharges or proposes to discharge." The 2008 rule specifies that "a CAFO proposes to discharge if it is designed, constructed, operated, or maintained such that a discharge will occur." On May 28, 2010, the EPA issued guidance "designed to assist permitting authorities in implementing the [CAFO regulations] by specifying the kinds of operations and factual circumstances that EPA anticipates may trigger the duty to apply for permits." On March 15, 2011, the Fifth Circuit Court of Appeals in National Pork Producers Council v. EPA again struck down the EPA's rule on this issue, holding that the "propose to discharge" standard exceeds the EPA's authority under the CWA. After the Fifth Circuit's ruling, a CAFO cannot be required to apply for an NPDES permit unless it actually discharges into a water of the