The Environmental Protection Agency (EPA) and environmental and food safety groups have appealed a West Virginia federal court ruling that a poultry farm is exempt from Clean Water Act permit requirements for stormwater runoff. On December 23, the U.S. Court of Appeals for the Fourth Circuit consolidated four appeals of the decision by U.S. District Court Judge John Preston Bailey, for the Northern District of West Virginia in Lois Alt, et., al., v. EPA. The appeals were filed separately a few days earlier by EPA, the Center for Food Safety and Water Watch, Potomac River Keeper, West Virginia Rivers Coalition, and the Waterkeeper Alliance.
On October 23, 2013, U.S. District Judge Bailey ruled that 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, Judge 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….”
