Poultry and livestock farmers had reason to celebrate when a federal court ruled in favor of West Virginia broiler grower Lois Alt in a lawsuit she brought against the U.S. Environmental Protection Agency (EPA). The U.S. District Court for the Northern District of West Virginia ruled that contrary to the EPA's contention, ordinary stormwater from Alt's farmyard is exempt from National Pollutant Discharge Elimination System (NPDES) permit requirements.
The EPA oversteps
Alt filed suit against the EPA in June 2012 after the agency threatened her with $37,500 in fines each time stormwater came into contact with dust, feathers or small amounts of manure on the ground outside of her poultry houses as a result of normal farm operations. The EPA also threatened separate fines of $37,500 per day if Alt failed to apply for a NPDES permit for such stormwater discharges. The American Farm Bureau Federation and the West Virginia Farm Bureau intervened alongside Alt as co-plaintiffs to help resolve the issue for the benefit of other poultry and livestock farmers.
In ordering Alt to seek a permit, the EPA took the legal position that the Clean Water Act's exemption for "agricultural storm water discharges" does not apply to farms classified as concentrated animal feeding operations (CAFO), except for areas where crops are grown. In other words, any areas at a CAFO farm where crops are not grown, and where particles of manure are present, would require a permit for rainwater runoff.
Grower's day in court
In April of this year, the federal court rejected efforts by the EPA to avoid defending its position by withdrawing the order against Alt. In opposing the EPA's motion to dismiss, Alt and the Farm Bureau argued that farmers remained vulnerable to similar EPA orders, and the important legal issue at stake should be resolved. The court agreed.
In his decision, Judge John Preston Bailey confirmed the areas inbetween the poultry houses are not part of those areas clearly defined in the CAFO rule as the production area. Instead, these areas are defined as farmyard, and discharges from these areas are undisputedly agricultural stormwater discharges. In his conclusion, the Judge stated "the litter and manure that 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."
John Starkey, president, U.S. Poultry & Egg Association (USPOULTRY), commented, "We applaud Judge Bailey's decision to issue a summary judgment. We are pleased that Ms. Alt's legal uncertainty has been resolved in her favor by a common sense ruling that is consistent with a clear understanding of the Clean Water Act, the intent of Congress and recent legal precedent established in the Waterkeeper case."
Implications for Rose Acre Farms case
On the surface, the ruling in the Alt case appears to be very good news for Rose Acre Farms in the company's dispute with the North Carolina Department of Environment and Natural Resources (N.C. DENR), but there is an aspect of the Rose Acre case that may be outside of the Alt judgment. Paul Bredwell, environmental programs vice president, USPOULTRY, said that while the dust and feathers being deposited in the barnyard are deemed to not be a discharge in the Alt case, the Rose Acre Farms case could also hinge on ammonia emissions from the fan exhaust and whether or not this can be regulated as part of the Clean Water Act.
The remaining question in the Rose Acre Farms case may be whether ammonia in the layer house fan exhaust is the ammonia being deposited in the Wildlife preserve at a later time as precipitation, not as runoff. The judge in the Rose Acre Farms case has cited precedent from the National Cotton Growers Council versus the EPA case that involved pesticide spraying near bodies of water. The court found that the pesticide applicator could be regulated by the Clean Water Act if the pesticide spraying led to contamination of waters of the U.S. That ruling said that pesticide applicators needed to get NPDES permits. This approach could lead to poultry farmers having to get NPDES permits because of ammonia coming out of their houses, since the EPA considers ammonia to be a pollutant.
