Farm Bureaus Can Join Suit Challenging EPA Stormwater Regulation, Court Rules

Published November 29, 2012

The American Farm Bureau Federation and the West Virginia Farm Bureau can intervene on behalf of a chicken farm owner suing the U.S. Environmental Protection Agency for overstepping its bounds in regulating under the Clean Water Act, a federal district court has ruled.

EPA fought the right of the Farm Bureaus to intervene, claiming any farmer challenging EPA regulatory action should have to mobilize its own resources and challenge EPA separately.

Rain Interacting with Farm Residue

In 2011 EPA ordered Lois Alt to apply for a National Pollution Discharge Elimination System permit, alleging rainstorms could wash dust, feathers, chicken dander, and small amounts of manure on the grounds of Alt’s farm into bodies of water regulated by EPA. EPA threatened Alt with $37,500 in fines every time rain falling on Alt’s farm comes into contact with the alleged pollutants and then makes its way into regulated bodies of water.

Alt claimed EPA does not have the legal right to subject her to its Clean Water Act regulations based on a small amount of farming residue on parts of her land that are not wetlands or bodies of water.

Setting a Precedent

Recognizing EPA’s action as a precedent likely to be repeated against many other farmers, the West Virginia Farm Bureau and the American Farm Bureau Federation (AFBF) sought to join Alt in her suit contesting EPA’s demands. EPA argued the Farm Bureaus could not join the suit and the Alts should have to rely on their own resources in challenging the federal agency.

“If EPA’s argument prevails in this case, virtually every large Concentrated Animal Feeding Operation (“CAFO”) would likely have an obligation to obtain a federally mandated permit if it rains enough in their area to wash manure and dust particles off their land and eventually into a jurisdictional water,” Judge John Preston Bailey wrote in the order. 

“It was a good thing that the court allowed us to join this suit, because there are farmers all across this country who are going to be impacted,” said Don Parrish, senior director of regulatory relations at the American Farm Bureau Federation. 

Congress Exempted Agriculture

“We think Congress was very clear when they passed the Clean Water Act, that they meant to exempt agricultural non-point-source pollution, like storm water. Outside of the production area, if EPA is going to call on us to [obtain a] permit to control every speck of dust and every feather and everything else that goes on in farming operations, we see that having a real detrimental  impact on farms because it’s going to increase our costs,” said Parrish. 

According to the AFBF, EPA’s demands on Alt unlawfully narrow the statutory exemption for “agricultural stormwater discharges” under the federal Clean Water Act. 

“EPA basically claims Lois Alt’s family farm isn’t agricultural and rainwater from her farmyard isn’t agricultural storm water, just because she houses more than a certain number of chickens,” said AFBF President Bob Stallman in a press statement. 

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