ELKINS – A Chesapeake Bay preservation group is appealing a federal judge’s decision denying it permission to intervene in a lawsuit between the U.S. Environmental Protection Agency and a Hardy County chicken farm.

On Sept. 25, the Chesapeake Bay Foundation appealed U.S. District Judge John Preston Bailey’s July 30 ruling that prevented it from becoming an intervenor in the case. The ruling has been appealed to the U.S. Court of Appeals for the Fourth Circuit.

Lois Alt, owner of Eight is Enough Farm, 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.

After denying intervenor status to the Chesapeake Bay Foundation, Bailey also denied its request to submit a friend-of-the-court brief.

Bailey ruled Chesapeake Bay Foundation’s motion to intervene was untimely because it was submitted one day after the plaintiffs filed a motion for summary judgment.

“By the very nature of its untimely motion, this Court finds the parties would be prejudiced if it permitted the CBF to intervene, and the same would unduly delay the adjudication of the original parties’ rights,” Bailey wrote.

Plaintiff-intervenors in the case are the American Farm Bureau and the West Virginia Farm Bureau. They filed the motion for summary judgment on 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 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.”

“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.

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