WEST VIRGINIA RECORD

ELKINS – A federal judge has ruled for a Hardy County chicken farm in its fight against the Environmental Protection Agency.

The EPA wanted Lois Alt, owner of Eight is Enough Farm, to apply for a Clean Water Act permit because of litter and manure washed from her farm by rain. U.S. District Court Judge John Preston Bailey ruled Oct. 23 that she didn’t need to do so.

Bailey issued the ruling despite the EPA withdrawing its demand that Alt apply for a CWA permit after she sued it in federal court. Bailey said the decision would benefit thousands of farmers.

“It appears to be a central assumption of the EPA’s position that the agricultural stormwater discharge exemption had no meaning whatsoever from the time the exemption was added to the statute in 1987 until the EPA promulgated its new regulations in 2003,” Bailey’s ruling says.

“This is an assumption that this Court simply cannot accept.”

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.”

Bailey’s ruling granted Alt’s motion for summary judgment, which was filed in July. Alt received support from plaintiff-intervenors West Virginia Farm Bureau and American Farm Bureau Federation.

The motion for summary judgment argued that the discharges fall within the ordinary meaning of the term “agricultural stormwater discharges,” which Congress explicitly exempted from regulation under the CWA.

“The term ‘agricultural stormwater discharge’ was not and has been defined in the statute,” Bailey wrote.

“The fact that Congress found it unnecessary to define the term indicates that the term should be given its ordinary meaning.”

It is common sense that Alt’s farm is “agricultural” and that the rain-caused runoff in question is “stormwater,” Bailey wrote.

The Chesapeake Bay Foundation attempted to intervene but it was ruled untimely because its motion was filed after the plaintiffs’ motion for summary judgment.

It was then denied the right to file a friend-of-the-court brief, and it appealed the intervenor decision to the U.S. Court of Appeals for the Fourth Circuit. It is unclear how that appeal will be affected by Bailey’s ruling.

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