ELKINS, WV (AP) — The U.S. Environmental Protection
Agency wants a judge to dismiss a West Virginia chicken grower's lawsuit
over water-pollution orders the agency issued against her then withdrew
in December, arguing the case is now moot.
But court filings show
Eight is Enough farm operator Lois Alt plans to join the West Virginia
and American Farm Bureaus in trying to keep the case alive. They contend
the underlying issues still need to be heard in court because they
could potentially affect poultry growers nationwide, requiring them to
seek discharge permits under the Clean Water Act that they don't all
currently need.
In a motion to dismiss last week, the EPA told
U.S. District Judge John Preston Bailey the legal issues Alt had raised
are now moot, and that an actual controversy must exist at every stage
in the litigation for it to survive.
"To proceed to address the
legal issues raised in the complaint here, such as the proper
interpretation of the CWA and its implementing regulations ... would
result in an impermissible 'advisory opinion on abstract propositions of
law,'" U.S. Attorney William Ihlenfeld wrote on behalf of the EPA.
Ihlenfeld
said other interveners in the case, including Potomac Riverkeeper, the
West Virginia Rivers Coalition and Food & Water Watch, have
indicated they don't oppose the government's motion to dismiss. However,
he said, Alt and the bureaus do plan to oppose it.
The EPA
designated Alt's farm a concentrated animal feeding operation, which
would require her to seek a permit to pollute the waters in Hardy
County. It ruled that dust, feathers and fine particles of dander and
manure could land on the ground, come into contact with storm water and
flow into ditches, eventually reaching Chesapeake Bay tributaries.
The
EPA is focused on protecting the watershed, which encompasses parts of
Delaware, Maryland, New York, Pennsylvania, Virginia and West Virginia,
and all of the District of Columbia.
Alt acknowledged there is
waste-tainted runoff from her farm but argued it was agricultural storm
water, not "process wastewater" that would be subject to regulation
under the Clean Water Act.
Bailey has given the parties until March 30 to formally respond.
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