EPA appeals ruling in favor of Hardy Co. chicken farm

By John O'Brien | Dec 27, 2013

Bailey


RICHMOND, Va. – The U.S. Environmental Protection Agency has appealed a recent West Virginia federal court ruling that said the EPA was wrong to force a Hardy County chicken arm to apply for a Clean Water Act permit.

Several groups, including the EPA, on Dec. 20 appealed District Judge John Preston Bailey’s Oct. 23 that granted summary judgment to Lois Alt and Eight is Enough Farm.

The EPA wanted Alt to apply or a CWA permit because of litter and manure washed from her farm by rain, but Bailey ruled she didn’t need to do so.

The EPA is appealing the summary judgment ruling against it and Bailey’s order denying the EPA’s motion to dismiss.

Defendant-Intervenors Potomac Riverkeeper, West Virginia Rivers Coalition, Waterkeeper Alliance Center for Food Safety and Food & Water Watch are also appealing. All were consolidated into one appeal.

Bailey issued the ruling despite the EPA withdrawing its demand that Alt apply for a CWA permit after she sued it in federal court. Bailey said the decision would benefit thousands of farmers.

“It appears to be a central assumption of the EPA’s position that the agricultural stormwater discharge exemption had no meaning whatsoever from the time the exemption was added to the statute in 1987 until the EPA promulgated its new regulations in 2003,” Bailey’s ruling says.

“This is an assumption that this Court simply cannot accept.”

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 EPA withdrew its demand in December after the lawsuit was filed. 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.”

Bailey’s ruling granted Alt’s motion for summary judgment, which was filed in July. Alt received support from plaintiff-intervenors West Virginia Farm Bureau and American Farm Bureau Federation.

The motion for summary judgment argued that the discharges fall within the ordinary meaning of the term “agricultural stormwater discharges,” which Congress explicitly exempted from regulation under the CWA.

“The term ‘agricultural stormwater discharge’ was not and has been defined in the statute,” Bailey wrote.

“The fact that Congress found it unnecessary to define the term indicates that the term should be given its ordinary meaning.”

It is common sense that Alt’s farm is “agricultural” and that the rain-caused runoff in question is “stormwater,” Bailey wrote.

The Chesapeake Bay Foundation attempted to intervene but it was ruled untimely because its motion was filed after the plaintiffs’ motion for summary judgment.

It was then denied the right to file a friend-of-the-court brief, and it appealed the intervenor decision to the U.S. Court of Appeals for the Fourth Circuit. It is unclear how that appeal will be affected by Bailey’s ruling.

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

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