The Environmental Protection Agency (EPA) has requested a judge dismiss a lawsuit brought by West Virginia chicken grower Lois Alt, saying the case is now moot, according to an Associated Press and other news reports. The case involves orders that EPA issued against the grower, but later withdrew in December 2012.
The EPA designated Alt’s farm a concentrated animal feeding operation, which would require the farm to seek a permit to allow drainage into the waters in Hardy County, West Virginia. EPA ruled that dust, feathers, and fine particles of dander and manure could land on the ground, come into contact with storm water, flow into ditches, and eventually reaching Chesapeake Bay tributaries.
Court filings, however, show farm operator Alt plans to join the West Virginia Farm Bureau and American Farm Bureaus in trying to keep the case afloat. The court filings contend that the underlying issues in the case still need to be heard because the issues could potentially affect poultry growers nationwide, requiring them to seek discharge permits under the Clean Water Act (CWA) that they do not all currently need.
In a motion to dismiss last week, EPA told U.S. District Judge John Preston Bailey that the legal issues Alt had raised are now moot, and that an actual controversy must exist at every stage in the litigation for it to survive. “To proceed to address the legal issues raised in the complaint here, such as the proper interpretation of the CWA and its implementing regulations…would result in an impermissible advisory opinion on abstract propositions of law,” U.S. Attorney William Ihlenfeld wrote on behalf of EPA.
Ihlenfeld also said other interveners in the case, including Potomac Riverkeeper, the West Virginia Rivers Coalition, and Food & Water Watch, have indicated they do not oppose the government’s motion to dismiss.
Judge Bailey had given the parties until March 30 to formally respond.
