IN a case closely watched by those in animal agriculture, a federal court ruled in favor of West Virginia poultry farmer Lois Alt in a lawsuit she brought against the Environmental Protection Agency.
The U.S. District Court for the Northern District of West Virginia ruled that contrary to EPA's contention, ordinary stormwater from Alt's farmyard is exempt from National Pollutant Discharge Elimination System (NPDES) permit requirements.
Alt filed suit against EPA in June 2012 after the agency threatened her with $37,500 in fines each time stormwater came into contact with dust, feathers or small amounts of manure on the ground outside of her poultry houses as a result of normal farm operations. EPA also threatened separate fines of $37,500 per day if Alt failed to apply for an NPDES permit for such stormwater discharges.
The American Farm Bureau Federation (AFBF) and the West Virginia Farm Bureau intervened alongside Alt as co-plaintiffs to help resolve the issue for the benefit of other poultry and livestock farmers.
The judge's dissertation noted that "the central issue presented by the case is whether the litter found on Ms. Alt's farmyard that could be picked up by rainwater, washed 200 yards across a grassy cow pasture and discharged into a creek named Mudlick Run is exempted from liability under the agricultural stormwater exemption to the definition of a point source."
The court document went on to explain that the Clean Water Act exempts "agricultural stormwater discharges" and said because they're not considered to be point sources, there is no requirement that a property owner discharging these waters must have an NPDES permit.
In ordering Alt to seek a permit, EPA took the legal position that the Clean Water Act's exemption for agricultural stormwater discharges does not apply to farms classified as concentrated animal feeding operations (CAFOs) except for areas where crops are grown.
In other words, any areas at a CAFO where crops are not grown and where particles of manure are present would require a permit for rainwater runoff.
EPA argued that litter and manure that may be in the farmyard would have originally come from the production area, rendering it ineligible for the stormwater exemption.
The court denied that argument, stating that "manure and litter in the farmyard would remain in place and not become discharges of a pollutant unless and until stormwater conveyed the particles to navigable waters."
The court document concurred that Congress wanted to "make clear that agriculture was not included" in the new regulations under the stormwater program regulations updated in the Clean Water Act.
Strong precedent set
In April of this year, the federal court rejected efforts by EPA to avoid defending its position by withdrawing the order against Alt.
In opposing EPA's motion to dismiss, Alt and AFBF argued that farmers remained vulnerable to similar EPA orders, and the important legal issue at stake should be resolved. The court agreed.
"We are pleased the court flatly rejected EPA's arguments and ruled in favor of Lois Alt," AFBF president Bob Stallman said. "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."
"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."