WEST VIRGINIA RECORD

ELKINS – An environmental group won’t be allowed to lend its support to the Environmental Protection Agency in a legal battle with a Hardy County chicken farm.

On Sept. 9, U.S. District Judge John Preston Bailey, of the Northern District of West Virginia, denied a motion by the Chesapeake Bay Foundation to file a friend-of-the-court brief in Eight is Enough Farm’s lawsuit against the EPA.

Lois Alt, the farm’s owner, is arguing the EPA overstepped its authority when it found her to be in violation of the Clean Water Act. The EPA withdrew its demand she seek a CWA permit after her lawsuit was filed, but Bailey has decided to rule on the issue because it could benefit thousands of farmers.

Bailey wrote that CBF does not have a unique perspective that can assist the court beyond what the parties can already provide.

“No party suggests that the defendants are inadequately represented,” Bailey wrote.

The group is dedicated to ensuring the Chesapeake Bay and its tributary rivers will be highly productive and in good health, its website says.

CBF previously asked to be granted intervenor status, but Bailey ruled that the request was made too late. The motion to intervene was made one day after Alt and plaintiff-intervenors American Farm Bureau and West Virginia Farm Bureau filed their motion for summary judgment.

The motion for summary judgment was filed 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 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.”

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