The U.S. District Court for the Northern District of West Virginia ruled this week that the U.S. Environmental Protection Agency (EPA) has no legal right to force West Virginia poultry grower Lois Alt to obtain water pollution permits for runoff from her Hardy County farm.
Contrary to EPA’s contention, U.S. District Judge John Preston Bailey ruled that the runoff on Alt’s farm is routine stormwater discharge, and that the small amounts of litter, dust, and manure washed by rain into Chesapeake Bay tributaries is agricultural runoff as a result of routine farm operations, not a fixed pollution source such as a factory. As routine stormwater discharge, it is exempt from the requirement that it be permitted and regulated under the federal Clean Water Act, Judge Bailey said.
“The term ‘agricultural stormwater discharge’ was not and has not been defined in the statute” covering permitting, Bailey wrote. “The fact that Congress found it unnecessary to define the term indicates that the term should be given its ordinary meaning.”
EPA has long held the view that it can require a permit for manure and litter discharged from poultry houses through ventilation fans if it threatens waterways. EPA initially threatened to fine Alt if she did not apply for a National Pollutant Discharge Elimination System (NPDES) permit for her farm, which was categorized as a concentrated animal feeding operation (CAFO). Alt filed suit against EPA in June 2012 challenging the EPA order.
EPA withdrew its order and the threatened fines in December 2012 and offered to dismiss the case. The American Farm Bureau Federation and the West Virginia Farm Bureau intervened as co-plaintiffs with Alt to help resolve the issue for the overall benefit of other poultry and livestock farmers. Alt and the Farm Bureau argued that farmers remain vulnerable to similar EPA orders, because the agency stands by its contention that the Clean Water Act statutory exemption for “agricultural stormwater” does not apply to stormwater from the farmyard at concentrated animal feeding operation.
Judge Bailey agreed with Alt and the Farm Bureau, noting that EPA had imposed virtually identical requirements on two other West Virginia poultry growers and one in Virginia. The judge also said, at the time, that the “court’s ultimate decision will benefit all parties, including EPA and many thousands of farmers, by clarifying the extent of federal Clean Water Act discharge liability and permit requirement for runoff from a typical farmyard….”
“We are pleased the court flatly rejected EPA’s arguments and ruled in favor of Lois Alt,” said Bob Stallman, president of the American Farm Bureau Federation. “The outcome of this case will benefit thousands of livestock and poultry farmers who run their operations responsibly and who should not have to get a federal permit for ordinary rainwater from their farmyards.”
The U.S. Department of Justice, which represented EPA in the case, said it is reviewing the court’s opinion.
“This lawsuit was about EPA’s tactic of threatening farmers with enormous fines in order to make them get permits that are not required by law,” Stallman said. “Lois Alt was proud of her farm and her environmental stewardship, and she stood her ground. We’re proud to have supported her effort.”
