EPA dismisses appeal of W.Va. chicken farm ruling

By Jessica M. Karmasek | Oct 3, 2014

WASHINGTON – The federal Environmental Protection Agency has dismissed its appeal of a ruling in a lawsuit filed against it over water pollution fines at a West Virginia chicken farm.

WASHINGTON – The federal Environmental Protection Agency has dismissed its appeal of a ruling in a lawsuit filed against it over water pollution fines at a West Virginia chicken farm.

The U.S. Court of Appeals for the Fourth Circuit issued a one-paragraph order Sept. 24, granting the EPA’s motion to voluntarily dismiss the appeal in the case.

According to the order, there was no opposition.

Plaintiff Lois Alt, owner of Eight is Enough farms, sued the EPA in 2012 over its demand that Alt obtain a Clean Water Act permit or face fines of $37,500 a day.

The agency claimed that the Alts were violating the CWA at their farm in the Old Fields section of Hardy County, in West Virginia’s Eastern Panhandle, because of litter and manure washing from the farm by rain.

Last October, Judge John Preston Bailey, for the U.S. District Court for the Northern District of West Virginia, ruled Alt did not need to apply for a CWA permit.

Bailey issued the ruling despite the agency withdrawing its demand that Alt apply for a CWA permit after she sued.

The judge rejected the EPA’s contention that the CWA regulates ordinary stormwater runoff from the farmyard, or non-production areas, at large livestock or poultry farms. Bailey noted that the decision would benefit thousands of farmers.

The EPA filed an appeal with the Fourth Circuit.

In a Sept. 19 blog post, Cynthia Giles, assistant administrator for the EPA’s Office of Enforcement and Compliance Assurance, called Bailey’s decision “overly broad” but said the agency decided not to pursue its appeal.

“Although EPA thinks that the district court decision is wrong, we also think that it is time to stop spending resources on litigation about this CAFO (concentrated animal feeding operation),” she wrote. “EPA is not going to appeal this decision; our resources are better spent remedying more serious, ongoing pollution across the country.”

However, Giles said the agency stands by its position that when CAFOs discharge pollutants from the production area into waters -- as Alt’s farm did, she noted -- the law requires permit authorization.

“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,” she wrote.

“EPA remains committed to working with the agricultural community to ensure compliance with this legal requirement and to pursue enforcement when necessary.

“One district court decision does not change either the law across the country or EPA’s commitment to protecting water quality.”

When pressed about its decision to not pursue the Alt case any further -- and asked if it had a strong enough case to appeal -- the agency would only say that it was “time to stop spending resources on litigation about the Alt CAFO.”

“We want to focus on more pressing issues of environmental and public health protection,” the EPA said in an emailed statement. Agency officials declined to be interviewed.

“This decision does not change EPA’s commitment to pursue enforcement when necessary under the Clean Water Act.”

But some argue that the agency’s voluntary dismissal signals its desire to avoid a likely loss in the appellate court.

“EPA knows its effort to regulate perfectly well-run farms cannot withstand legal scrutiny, and the agency doesn’t quite know how to deal with that,” American Farm Bureau Federation President Bob Stallman said in a statement.

Both the AFBF and West Virginia Farm Bureau joined the lawsuit on the side of Alt.

“Apparently, the agency would rather move on and continue pursuing its regulatory agenda farm-to-farm, but not defend it in court,” Stallman said, adding that although the EPA’s motivation seems self-evident, “you wouldn’t know it from the agency’s spin machine.”

Stallman explained that because no federal court had ever addressed the question of stormwater runoff from farms like 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 the EPA to continue imposing wide-scale federal permitting requirements on large animal farms, he 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,” AFBF General Counsel Ellen Steen said in a statement.

Stallman went even further, calling the agency’s move “cynical” and “cowardly.”

“For most of us, standing firm doesn’t mean walking away just because you are afraid you won’t like the outcome,” he said.

The appeal still could move forward if any of the five environmental groups that intervened in support of the EPA -- Potomac Riverkeeper, West Virginia Rivers Coalition, Waterkeeper Alliance, Center for Food Safety, and Food and Water Watch -- decides to go forward without the government.

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