Appeal of EPA chicken farm ruling dead

By Jessica M. Karmasek | Oct 6, 2014

RICHMOND, Va. – An appeal of a federal court’s ruling in a case over water pollution fines at a West Virginia chicken farm is dead.

The five environmental groups that intervened in support of the federal Environmental Protection Agency – Potomac Riverkeeper, West Virginia Rivers Coalition, Waterkeeper Alliance, Center for Food Safety, and Food and Water Watch – now have decided to withdraw their appeal.

The groups asked the U.S. Court of Appeals for the Fourth Circuit to dismiss their appeal late last week.

The move comes about a week after the Fourth Circuit granted the EPA’s motion to voluntarily dismiss its appeal.

The appeal still could have moved forward if any of the five groups decided to go ahead without the government.

The groups said they were “deeply disappointed” in the agency’s decision.

“In the suit, the facility admitted it discharges pollutants into a tributary to the Potomac River,” said Susan Kraham, senior staff attorney at the Columbia Environmental Law Clinic.

Lois Alt, the 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.

Though it believes Bailey’s decision is “overly broad,” the agency said it wasn’t worth fighting.

“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),” Cynthia Giles, assistant administrator for the EPA’s Office of Enforcement and Compliance Assurance, wrote in a Sept. 19 blog post.

“EPA is not going to appeal this decision; our resources are better spent remedying more serious, ongoing pollution across the country.”

The environmental groups are urging the EPA to step up enforcement of the CWA by ensuring that large CAFOs obtain permits to control discharges and animal waste.

“Although CAFOs remain one of the largest unaddressed sources of pollution in the United States, EPA reported in 2013 that only 36 percent of the largest identified CAFOs have obtained Clean Water Act permits,” said Sarah Rispin, general counsel for Potomac Riverkeeper.

“Unregulated animal waste discharges from CAFOs are substantial contributors to water quality problems, including harmful algae blooms and dead zones, in the Potomac River and Chesapeake Bay watersheds.”

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