CLARKSBURG – Now that a federal judge has decided he wants to rule on the issue, the owner of a Hardy County chicken farm is making her case.

Lois Alt, owner of Eight is Enough Farm, is arguing that the Environmental Protection Agency overstepped its authority when it found her to be in violation of the Clean Water Act.

However, the EPA, after Alt filed a challenge in U.S. District Court for the Northern District of West Virginia, withdrew its demand that Alt apply for a CWA permit.

It also filed a motion to dismiss Alt’s lawsuit because the issue was now moot. U.S. District Judge John Preston Bailey ruled in April that the case will continue because a decision could benefit thousands of farmers.

Alt filed a motion for summary judgment on July 1.

“This case presents the question whether Congress intended for EPA to impose liability on Lois Alt for chicken manure dust and particle in her farmyard that could be picked up by rainwater, washed two hundred yards across a grassy cow pasture, and discharged into a creek named Mudlick Run,” the motion says.

“We submit that such discharges fall within the ordinary meaning of the term ‘agricultural stormwater discharges,’ which Congress explicitly exempted from regulation under the CWA.

“EPA has not required permits under the CWA for farmyard stormwater discharges for nearly four decades, implicitly recognizing that Congress did not intend to regulate them. We ask this Court to reject EPA’s recent contrary position.”

When Alt was found in violation of the CWA, the EPA demanded she obtain a permit or face fines of $37,500 per day.

The EPA said stormwater runoff could come into contact with spilled manure and ventilation dust. Alt argued the discharges were exempt from the permitting process.

The West Virginia Farm Bureau and the American Farm Bureau Federation were granted intervenor status in the suit.

The EPA withdrew its demand in December. Bailey wrote that the same controversy persists despite the EPA’s withdrawal, noting the EPA has reserved the right to issue another such order in the event of a significant change in “circumstances or operations.”

“This court’s ultimate decision on the merits will benefit all parties, including EPA and many thousands of farmers, by clarifying the extent of federal CWA ‘discharge’ liability and permit requirements for ordinary precipitation runoff from a typical farmyard,” Bailey wrote.

He added that he has to take into account the complaint filed by the farm bureaus, which seek declaratory judgment as to the issue.

Peter G. Zurbuch of Busch, Zurbuch & Thompson in Elkins represents the farm bureaus and filed the parties' joint brief. Also representing the bureaus is James T. Banks of Hogan Lovells.

David L. Yaussey of Robinson & McElwee in Charleston represents Alt.

“EPA’s position represents a dramatic departure from its historic interpretation of its rules, and should be rejected by this Court for that reason,” the motion says.

“EPA’s ‘process wastewater’ definition for (Concentrated Animal Feeding Operations) has changed little since it was first promulgated in 1974, and until now has never been interpreted to include stormwater from an ordinary CAFO farmyard.”

On July 2, the Chesapeake Bay Foundation asked the court to allow it to intervene in the case. Alt has filed a response in opposition.

From the West Virginia Record: Reach John O’Brien at jobrienwv@gmail.com.

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