WATER POLLUTION:

Court rules against EPA on CAFO discharges in big win for farm groups

A federal court ruled yesterday that U.S. EPA cannot require a West Virginia poultry operation to obtain a Clean Water Act permit for its stormwater in what farm groups are calling a major victory.

Judge John Bailey in the U.S. District Court for the Northern District of West Virginia found that discharges from Lois Alt's farm in Old Fields, W.Va., were covered by a Clean Water Act exemption for agricultural stormwater.

"Common sense and plain English lead to the inescapable conclusion that Ms. Alt's poultry operation is 'agricultural' in nature," Bailey wrote, "and that the precipitation-caused runoff from her farmyard is 'stormwater.'"

The case, Alt v. EPA, had been closely watched by both agricultural interests and environmentalists. Farm groups feared that a favorable ruling for EPA would open concentrated animal feeding operations, or CAFOs, to permitting requirements for stormwater discharges. The West Virginia Farm Bureau and the American Farm Bureau Federation joined the lawsuit on behalf of Alt.

Environmental groups that intervened on behalf of EPA said the decision yesterday instead puts the Chesapeake Bay and other waters of the United States in danger of pollution from animal agriculture operations.

"We are disappointed in the court's ruling and are deeply concerned that the ruling will make it more difficult to restore the health of waterways across the country, including the Chesapeake Bay," Potomac Riverkeeper, the West Virginia Rivers Coalition, the Waterkeeper Alliance, the Center for Food Safety, Food and Water Watch, and Earthjustice said in a joint statement.

Alt filed the lawsuit in June 2012 after EPA issued a compliance order for stormwater runoff that it determined to be coming from her CAFO in West Virginia. EPA said dust and manure from the operation's eight poultry confinement houses had settled on the farmyard and had been exposed to precipitation, leading to runoff into local waterways.

The agency told Alt she must obtain a Clean Water Act permit for the discharges or face penalties of up to $37,500 a day.

In court filings, Alt argued she maintained best-management practices and took steps to reduce the amount of manure and litter that would be exposed to rain and snow. She argued the operation didn't require a Clean Water Act permit for the runoff because the law explicitly exempts agricultural stormwater discharge from regulation.

But EPA said the stormwater exemption did not apply to the Alt CAFO. The exemption, EPA argued, applied only to areas where manure, litter or process wastewater has specifically been applied in accordance with nutrient management practices, not to areas where they may have inadvertently accumulated during livestock operations.

All runoff from wastes generated on the CAFO production areas -- including the place where animals are confined, the manure storage area and the waste containment area -- required a permit, the agency said.

In March, EPA moved to dismiss the case, arguing that it was moot because the agency had withdrawn the original violation notice that prompted the lawsuit. But Bailey rejected EPA's request because he said such action wouldn't address the central question of whether the agency can force livestock producers to obtain permits for stormwater discharge (Greenwire, April 23).

In his ruling yesterday, Bailey noted that courts have long upheld a broader definition of agricultural stormwater discharge than contained in EPA's 2003 CAFO rule and in its arguments in the Alt case. EPA's argument that the exemption applies only to land application areas is contrary to previous court rulings, he said.

"The only requirement is that the exempt discharge must be agriculture related," Bailey wrote. "It is clear that the incidental manure and litter are related to the raising of the poultry and are therefore related to agriculture."

Bailey further found that even though the manure and litter on the Alt farm originated from the CAFO production area, it cannot be regulated as a point source of pollution because the farmyard where it settled is not part of the livestock operation.

The manure and litter would have remained in place if there had been no precipitation, Bailey said.

"This court declares that the litter and manure which is washed from the Alt farmyard to navigable waters by a precipitation event is an agricultural stormwater discharge and therefore not a point source discharge," Bailey wrote, "thereby rendering it exempt."

The American Farm Bureau Federation applauded the court's decision.

"We are pleased the court flatly rejected EPA's arguments and ruled in favor of Lois Alt," Farm Bureau President Bob Stallman said. "The outcome of this case will benefit thousands of livestock and poultry farmers who run their operations responsibly and who should not have to get a federal permit for ordinary rainwater from their farmyards."

The environmental groups said they would consider "all of our legal options" to respond to the decision.

The groups are "deeply concerned that the ruling will make it more difficult to restore the health of waterways across the country, including the Chesapeake Bay. These waterways have been contaminated by livestock excrement and other pollution from factory farms," they said in a statement. "The court's decision, if it stands, could have devastating impacts on the health of our rivers, streams and lakes and our communities."

In a statement, EPA said it and the Department of Justice "are reviewing the court's decision."

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