THE Environmental Protection Agency has decided it will no longer pursue a case against West Virginia poultry farmer Lois Alt, but the agency is far from giving up on challenging the actions of concentrated animal feeding operations (CAFOs).
EPA's dispute with Alt began when the agency issued an order threatening her with $37,500 in fines per day unless she applied for a Clean Water Act permit for stormwater runoff from her farmyard.
Proud of her record of environmental stewardship, Alt responded with a lawsuit challenging the EPA order, citing the long-standing Clean Water Act exemption for "agricultural stormwater discharges."
The dispute garnered national attention as the American Farm Bureau Federation (AFBF) and West Virginia Farm Bureau joined the suit on Alt's side, and five environmental groups sided with EPA. All parties focused on the broader implications of the lawsuit for farmers nationwide.
EPA first attempted to back away from the fight just weeks before briefing was set to begin. The agency withdrew its order and asked the court to dismiss the suit.
The court refused, finding that EPA had not changed its legal position and that the farm groups had an ongoing interest in resolving the validity of that position for the benefit of other farmers. The U.S. Court for the Northern District of West Virginia ruled against EPA and in favor of Alt in October 2013.
Since no federal court had ever addressed the question of stormwater runoff from farms such as Alt's, the lower court's ruling carries implications for tens of thousands of poultry and livestock farms nationwide.
An appellate court decision upholding that ruling would make it even harder for EPA to continue imposing wide-scale federal permitting requirements on CAFOs. AFBF believes the voluntary dismissal of its appeal signals EPA's desire to avoid a likely loss in the appellate court.
Gary Baise, a lawyer at OFW Law who commonly represents agricultural operations in water litigation, said the Alt case is crucial to defending livestock operations in court. He claims that EPA keeps trying to go after the stormwater issue in hopes that courts will help eliminate the exemption, which has rightly protected farmers for decades.
In a blog explaining the reason for not appealing the Alt ruling, EPA assistant administrator Cynthia Giles said the court decision "offers an overly broad view of the Clean Water Act's exemption for agricultural stormwater." She added that although EPA thinks the district court decision is wrong, the agency will stop spending money on litigation over Alt's farm but will continue attempts to regulate other CAFOs.
"Pollution from CAFOs flowing into local waterways when it rains is an environmental and public health risk. The law gives EPA the authority to require that agriculture operations with large numbers of animals in a small area that discharge pollutants to U.S. waters obtain a permit to reduce their environmental impact," Giles wrote. "One district court decision does not change either the law across the country or EPA's commitment to protecting water quality."
AFBF general counsel Ellen Steen said, "EPA appears to be saying it will continue to enforce its position against other farmers, even though it's not willing to defend that position in court."
Since EPA isn't backing down, it will be all the more important for livestock owners to make sure there are no cracks in their environmental practices so they don't give EPA a leg up in future court challenges.