EPA Overstepped Authority on Farm Runoff, Court Rules

Published December 19, 2013

In a sharp rebuke to the U.S. Environmental Protection Agency, a federal court ruled a poultry farm owner did not have to get a federal pollution permit for small amounts of feathers or other chicken residue that inadvertently washed into a nearby stream.

EPA Demanded Runoff Permit
Lois Alt, owner of the Eight is Enough poultry farm in Hardy County, West Virginia, filed suit against EPA in June 2012 after EPA claimed Alt would have to apply for a Clean Water Act permit to continue operating her farm.

Eight is Enough contains eight poultry-raising structures that hold dry litter, feed, compost, and equipment in addition to chickens. An EPA field agent showed up to inspect the farm in June 2011. EPA thereafter claimed dander, fine particle dust, and droppings would likely wash off into nearby streams during precipitation events. EPA classified Alt’s farm as a large-scale source of pollutants into a small nearby stream called Mudlick Run and told Alt she would have to apply for a National Pollutant Discharge Elimination System (NPDES) permit.

EPA threatened Alt with $37,500 per day in fines if she failed to apply for a permit or operated her poultry farm after EPA denied a permit.

Farm Bureau Steps Up
The West Virginia Farm Bureau and the American Farm Bureau Federation quickly came to Alt’s aid and assisted her in filing suit against EPA. Fearing it would lose the case, EPA reversed itself and told Alt she would not have to apply for a permit. EPA then asked the court to dismiss the case as moot. At the urging of the farm bureaus, however, the Court agreed to consider the case, finding the issue was an important one that required legal clarification.

The key legal issue was EPA’s assertion Eight is Enough did not meet the statutory exemption for “agricultural storm water discharges” because the exemption does not apply to larger farms, also known as concentrated animal feeding operations (CAFOs).

Judge John Preston Bailey, Chief Judge for the Northern District of West Virginia, ruled in Alt’s favor.

Congress Exempted Agricultural Stormwater
The Court observed Congress exempted “agricultural stormwater discharges” from Clean Water Act permits. However, the judge wrote, “Nowhere did Congress define the term ‘agricultural stormwater’ nor did the EPA promulgate any regulations defining the term.”

The Court noted, “The Act defines ‘discharge of a pollutant’ to mean ‘any addition of any pollutant to navigable waters from any point source.'” Importantly, the Court noted the Act specifies the term “point source” does “not include agricultural stormwater discharges.

“The term generally includes a CAFO but specifically excludes ‘agricultural stormwater discharges,’ even if they are associated with a CAFO or any other type of point source. Therefore, the discharge of a point source requires a permit unless that discharge is an ‘agricultural stormwater discharge'” [emphasis in original].

‘Should Not Take a Lawsuit’
The American Farm Bureau Federation applauded the Court’s decision.

“The legal issues in this case are important to other livestock and poultry farmers who manage their farms responsibly and who would prefer to avoid needless layers of federal regulation,” American Farm Bureau president Bob Stallman said. “The simple fact is that Congress chose not to regulate ordinary rainwater from farms, including livestock and poultry farms, and EPA should abide by the will of Congress.

“It should not take a lawsuit to force EPA to respect the limits of its authority,” Stallman added. “Lois Alt showed courage in standing up to EPA’s illegal permit demands and threats of huge penalties, and we are proud to have stood beside her.”

Stallman worries the agency may still attempt to exceed its authority.

“EPA seems intent on imposing federal permits on all so-called ‘large’ livestock and poultry farms,” said Stallman. “They’ve tried it twice by writing rules that were struck down by courts in 2005 and 2011. Now they are trying it without new rules, by issuing orders demanding permits for ordinary rainwater. We seem to be dealing with an agency that refuses to accept reality.”

“What I do know is that Farm Bureau is as persistent as EPA is. We are as determined to stand up for good, responsible farmers as EPA is determined to regulate them,” Stallman said.

Alyssa Carducci ([email protected]) writes from Tampa, Florida.