Bluefield Daily Telegraph, Bluefield, WV

October 23, 2013

W.Va. chicken farmer wins EPA lawsuit over runoff


Associated Press

MORGANTOWN — The U.S. Environmental Protection Agency has no legal right to force a West Virginia poultry grower to obtain water pollution permits for runoff from her Hardy County farm because it is routine stormwater discharge, a federal judge ruled Wednesday.

U.S. District Judge John Preston Bailey said litter and manure washed by rain into Chesapeake Bay tributaries at Lois Alt’s Hardy County farm is agricultural runoff, not a fixed pollution source such as a factory. That means it’s exempt from the requirement that it be permitted and regulated under the federal Clean Water Act, he said.

“The term ‘agricultural stormwater discharge’ was not and has not been defined in the statute” covering permitting, Bailey wrote. “The fact that Congress found it unnecessary to define the term indicates that the term should be given its ordinary meaning.”

The EPA initially threatened to fine Alt if she didn’t seek a permit for her farm, which it called a “concentrated animal feeding operation.” After Alt sued last year, EPA withdrew the fines. In March, it offered to dismiss the case.

But the American Farm Bureau Federation and the West Virginia Farm Bureau joined Alt in keeping the case alive, arguing it had economic implications for farmers nationwide.

Bailey agreed, noting that the EPA had imposed virtually identical requirements on two other West Virginia poultry growers and one in Virginia. The judge also said the agency hadn’t changed its underlying position that some chicken farms are concentrated animal feeding operations.

That would mean the EPA can require them to obtain permits they’ve never previously needed.  

EPA officials didn’t immediately respond to emails seeking comment, but cheers went up in a staff meeting when the West Virginia Farm Bureau got word of the ruling.

“It’s an affirmation of what we thought the rule was,” said administrator Stephen Butler, “and it shows the EPA was overstepping its bounds.”

When Congress passed the Clean Water Act, it acknowledged that stormwater runoff was different from a fixed source of pollution and should not be subject to permitting, Butler said. Farmers, who work long hours to keep their operations going, were less concerned about the cost of the permits, he added, than the record-keeping they’d have to do afterward.

Alt, who sued the EPA in June 2012, didn’t immediately respond to a request for comment, relayed through her attorney.

The EPA’s actions were aimed at cleaning up the Chesapeake Bay watershed, which encompasses parts of Delaware, Maryland, New York, Pennsylvania, Virginia and West Virginia, and all of the District of Columbia.   

The EPA said it has long held the view that it can require a permit for manure and litter discharged from poultry houses through ventilation fans if it threatens waterways.

Siding with the EPA were environmental and consumer groups including Earthjustice, Food & Water Watch, Potomac Riverkeeper, Waterkeeper Alliance and the West Virginia Rivers Coalition.

Their lead attorney, Christopher Stroech, didn’t immediately return an email message seeking comment from him or his clients.

The groups have long argued that neither Alt’s farm “nor the other tens of thousands of commercial farms like it across the country” should be exempt from federal water-protection laws.