Judge won't dismiss farmer's case against EPA, wants to decide stormwater issue

By John O'Brien | Apr 30, 2013

CLARKSBURG – A federal judge says a decision in a dispute between a Hardy County chicken farm and the Environmental Protection Agency will benefit thousands of farmers.

U.S. District Judge John Preston Bailey, of the Northern District of West Virginia, ruled April 22 to deny the EPA’s motion to dismiss a lawsuit filed by Eight is Enough Farm. The EPA had argued the case was moot because it withdrew its request for the farm to obtain a Clean Water Act permit.

Bailey said that is not the case.

“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.

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

The EPA claimed Alt was violating the CWA at her farm in the Old Fields section of Hardy County, in West Virginia’s Eastern Panhandle.

The EPA wanted Alt to obtain a permit because stormwater runoff could come into contact with spilled manure and ventilation dust. Alt responded that she believed the discharges were exempt from the permitting process.

“(T)he incidental presence of insignificant amounts of chicken litter, feed or similar material on the ground in the barnyard at a farm does not give rise to regulated discharge,” her response to the EPA said.

“Instead, the only possible discharge of such areas would be unregulated stormwater.”

Soon after, the West Virginia Farm Bureau and the American Farm Bureau Federation were granted intervenor status in the suit.

However, the EPA withdrew its demand that Alt obtain a CWA permit or face fines in December.

Bailey wrote the same controversy persists despite the EPA’s withdrawal.

“In this case, the EPA has withdrawn the compliance order issued against Mrs. Alt, but has reserved the right to issue another such order in the event of a significant change in ‘circumstances or operations,” Bailey wrote.

“Notably, the EPA has not changed its position on whether any stormwater that might come into contact with dust, feathers or dander from poultry house ventilation fans deposited on the ground outside of the production areas constitutes stormwater that is expressly exempt from (National Pollutant Discharge Elimination System) permitting requirements or whether any stormwater that might come into contact with small amounts of manure incidentally present on the ground outside of the production areas as a result of normal poultry farming operations constitutes agricultural stormwater that is expressly exempt from NPDES permitting requirements.”

Bailey also said he had to take into account the complaint filed by the farm bureaus, which seek a declaratory judgment as to the issue.

“EPA’s adherence to its underlying position, as evidenced by numerous other actions it has taken, demonstrates that the Agency’s challenged assertion of authority not only can be ‘reasonably expected to recur,’ but in fact is ongoing even now,” Bailey wrote.

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

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