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Stormwater runoff suit in limbo

Stormwater runoff suit in limbo

LAST December, in a surprise about-face, the Environmental Protection Agency withdrew an order demanding that West Virginia poultry grower Lois Alt obtain a Clean Water Act discharge permit for stormwater runoff from her farm or face fines of up to $37,500 per day.

Now, EPA is attempting to have the courts dismiss the case.

However, Alt, the West Virginia Farm Bureau and the American Farm Bureau Federation (AFBF) don't want to see this case go away.

The case raises important national issues about EPA's authority to regulate livestock and poultry farms and the scope of the 40-year-old exemption of "agricultural stormwater discharges" from Clean Water Act permit requirements.

EPA's November 2011 order threatened Alt with $37,500 in fines for 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 poultry farming operations. EPA also threatened separate fines of $37,500 per day if Alt failed to apply for a National Pollutant Discharge Elimination System permit.

Alt responded by filing her own legal challenge to the EPA order in June 2012.

"If I thought I was wrong, I would jump through hoops to fix it, but I'm not wrong," Alt said.

When talking with EPA about how to fix the issue, the agency told her to just file the paperwork, which she said put her between a rock and a hard place, being known as an environmental role model.

Shortly before Alt was to present her arguments in the case, EPA voluntarily withdrew its November 2011 order. EPA then filed a motion to dismiss, arguing that the case is "moot" and should be dismissed for lack of jurisdiction since EPA granted what Alt originally sought when filing the suit.

EPA noted that previous court cases require judges to resolve only "real and substantial controversies of specific relief" and not "issue opinions advising what the law would be upon a hypothetical state of facts."

However, Danielle Quist, AFBF senior counsel for public policy, noted that EPA's voluntary withdrawal of the order didn't disavow the legal or factual reasons for why the agency initially called on Alt to seek a permit. EPA may have withdrawn the order because it didn't want to litigate this issue with a judge since Alt runs an exemplary farm, she added.

Quist said EPA is also subjecting other farmers to the same incorrect interpretation of the law. "The legal issues are not moot, and the court should hear this case," she said.

Quist added that farmers in the Chesapeake Bay watershed, and particularly EPA's Region 3, are being asked to obtain permits when they're unneeded. EPA is requesting permits for ordinary agricultural stormwater on the farm, which is exempt from permit requirements under the Clean Water Act.

She said unless the court rules on the merits of this case, EPA will require animal feeding operations to seek permits for minute amounts of manure, dust and feathers on a farm or else face stiff fines.

"We don't believe the law requires them to seek a permit," Quist said, since agricultural stormwater is exempt from permit requirements and is not a regulated discharge.

AFBF and West Virginia Farm Bureau were granted intervention in the case. The judge presiding in the case gave parties until March 30 to formally respond to EPA's motion to dismiss.

Volume:85 Issue:13

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