Federal Court Rebuffs EPA’s Effort to Require Non-Discharging Confinement Operators to Obtain an NDPES Permit

Louis Alt operates a poultry farm in Hardy County, West Virginia. All of the birds and the litter is kept under roofs. The farm does not discharge process water to any stream and followed best management practices.  Nevertheless, the EPA issued an Order finding that her farm was discharging pollutants “via sheet flow” to Mudlick Run during rain events generating runoff without having obtained an NDPES permit.” The EPA threatened penalties of $37,500 per day and criminal sanctions, including imprisonment.

At this stage of the case, it was clear that the EPA was seeking to criminalize all farming operations in the United States. This is because the “sheet flow” referred to by the EPA really refers to the transfer of particles that land or are tracked onto the ground around the farm and are subsequently picked up by rain and transported to a receptor stream. There is no farm that does not have some manure, hair, feather, or other organics that end up in the farmyard. This includes organic farms or even hippy operations where everyone wears hemp clothes and has a name for each chicken or pig in the barn.

On June 14, 2012 Louis Alt filed a challenge to the EPA’s Order in Federal District Court for the Northern District of West Virginia. On December 13, 2012, the EPA withdrew the challenged Order and followed up with a Motion to Dismiss, arguing that the lawsuit was then moot. The court rejected the EPA’s motion. Plaintiffs and intervenors filed a motion for summary judgment.

The undisputed facts relied upon by the court in ruling on the motion for summary judgement included:

Some particles of manure and litter from Ms. Alt’s confinement houses have been tracked or spilled in Ms. Alt’s farmyard. Some dust composed of manure, litter and dander, and some feathers, have been blown by the ventilation fans from the confinement houses into Ms. Alt’s farmyard where they have settled on the ground.

Precipitation has fallen on Ms. Alt’s farmyard, where it contacted the particles, dust and feathers from the confinement houses, creating runoff that carried such particles, dust and feathers across a neighboring grassy pasture and into Mudlick Run, a water of the United States.

The court reviewed the applicable law and noted that:

In 1987, Congress amended § 1362(14) to add an exemption to the statutory definition of a point source. As amended, § 1362(14) defined “point source” as “any discernible, confined and discrete conveyance, including but not limited to any pipe, ditch, channel, tunnel, conduit, well, discrete fissure, container, rolling stock, concentrated animal feeding operation, or vessel or other floating craft, from which pollutants are or may be discharged. This term does not include agricultural stormwater discharges and return flows from irrigated agriculture.” (emphasis added).

Alt, p. 10 of the slip op (emphasis in original).

In its lengthy analysis, most of the issues revolved around the earlier case of Waterkeeper Alliance, Inc. v. USEPA, 399 F.3d 486 (2nd Cir. 2005), in which the EPA’s 2003 regulations had been upheld.  The Court first addressed EPA’s argument that the Court lacked jurisdiction because the issues in the case were addressed by the EPA in its 2003 CAFO rule. The court rejected this argument, noting that “[t]he plaintiff and plaintiff-intervenors are not challenging the 2003 Rules, which pertain to discharges from land application areas. Accordingly, this action is not barred by Waterkeeper or 33 U.S.C. § 1369(b).”

The court next identified the central issue in the case as “whether the litter found on Ms. Alt’s farmyard that could be picked up by rainwater, washed two hundred yards across a grassy cow pasture, and discharged into a creek named Mudlick Run is exempted from liability under the agricultural stormwater exception to the definition of a point source.”

The court looked at the definitions of “agricultural stormwater discharge,” “discharge of any pollutant” and a “point source.” The court next went through a history of the Clean Water Act and the regulations as interpreted by other federal courts and concluded that “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. This is an assumption that this Court simply cannot accept.” Alt, p. 15 of the slip op. 

The court rejected the EPA’s argument that the agricultural exemption did not apply to the farmyard, as opposed to the actual confinement buildings. The court next rejected the argument that the exempt discharge must have an “agricultural purpose.”  The court noted that the statute only requires that the discharge be agriculturally related. It also rejected the argument that the discharges were industrial rather than agricultural, noting that this argument had already been rejected in the Waterkeeper case. Also rejected was the novel argument that the litter and manure had originally come from a non-exempt production area. Again, the court pointed to the Waterkeeper decision as “generally authorizing the regulation of CAFO discharges, but exempting such discharges from regulation to the extent that they constitute agricultural stormwater.”

Having rejected all of the EPA’s arguments, the court ruled in favor of Lois Alt and held:

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, thereby rendering it exempt from the NPDES permit requirement of the Clean Water Act.

The decision was issued on October 23, 2013.

Decision: Alt v. EPA D.C. Decision (00616111)

Case File: http://www.fb.org/index.php?action=legal.recentDocket&id=85

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About James Pray

Attorney with BrownWinick Law Firm in Des Moines, Iowa.
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