Farmers claim victory over EPA in court decision - WTRF 7 News Sports Weather - Wheeling Steubenville

Farmers claim victory over EPA in court decision

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Hardy County poultry farmer Lois Alt won her lawsuit against the Environmental Protection Agency last week when a federal judge ruled that bits of dust, feathers and manure that leave a poultry building and get washed into nearby streams do not require a federal pollution discharge permit.

The West Virginia Farm Bureau and the American Farm Bureau Federation, which helped Alt in her suit against the EPA, hailed the decision as a victory against an over-intrusive EPA. Environmental groups criticized it as a step back in the fight to restore the health of Appalachian streams. The EPA, mulling whether to appeal, was silent.

Just as Alt was.

"It's going to be especially important to others in the (agriculture) industry," her attorney, David Yaussey of the Charleston law firm Robinson & McElwee, said last week after the decision. 

Although the EPA wanted to drop its demands against Alt, Alt wanted the case to proceed to resolve the permit issue once and for all.

Alt is declining interview requests, Yaussey said.

Runoff debate

Alt filed her suit in the U.S. District Court for the Northern District of West Virginia June 14, 2012.

According to the suit, her Eight is Enough farm consists of eight poultry-raising houses and ancillary structures for storing dry litter, fresh bedding material, feed, compost and equipment needed for the operation of the farm. All chicken raising, feed storage, bedding storage, composting and litter storage takes place under roofs. The broiler houses are ventilated by large fans. The only water that runs off from the farm is water that falls as precipitation on the roofs or on the farm yard, according to the suit.

On June 17, 2011, an EPA official performed an inspection of the farm. The EPA found that the poultry houses are equipped with fans that blow dust containing feathers and fine particles of dander and manure onto the ground outside the houses, which, the EPA said, "would come into contact with precipitation during rain events and generate process wastewater that is carried into the nearby man-made ditches," according to the suit.

The EPA also found that there was manure on the ground near the southern end of the poultry houses that would come into contact with precipitation and flow onto land owned by a neighbor.

"The Order did not contain any findings that storm water did or could contact any potential pollutants inside any poultry house or other portions of the production area at the farm," the suit says.

The EPA determined that Alt was in violation of the Clean Water Act for operating a point source that has discharged pollutants to Mudlick Run during rain events without having obtained an NPDES (National Pollutant Discharge Elimination System) permit.

Alt originally agreed to apply for a permit, then reconsidered. She said any water that may be discharged from the farm is agricultural stormwater and therefore not subject to Clean Water Act regulation, according to the suit.

The suit asked the court to declare that any stormwater that might come into contact with dust, feathers or dander from the poultry house is exempt from NPDES permitting requirements.

The West Virginia Farm Bureau and American Farm Bureau Federation came to Alt's aid in the suit. The EPA was joined by several environmental groups — Potomac Riverkeeper, West Virginia Rivers Coalition, Waterkeeper Alliance, the Center for Food Safety and Food & Water Watch.

Eventually, the EPA dropped its demand that Alt obtain an NPDES permit and asked that the suit be dismissed. Alt and the Farm Bureau wanted the case to continue to establish that the EPA did not have authority to regulate stormwater runoff as a point source of pollution.

Farm impact

Judge John Preston Bailey, chief judge for the Northern District, issued his 26-page opinion Oct. 23.

Bailey's decision noted that Alt operates a concentrated animal feeding operation, or CAFO. She has implemented management practices to reduce the amount of manure and litter that will be exposed to precipitation in her farmyard, Bailey wrote.

The EPA found that Alt's CAFO "has discharged pollutants from man-made ditches via sheet flow to Mudlick Run during rain events generating runoff without having obtained an NPDES permit," Bailey wrote. The EPA said it could subject Alt to civil penalties of up to $37,500 per day of violation. The EPA also said it could initiate criminal action against Alt, Bailey wrote.

"The central issue presented by the case is whether the litter found on Ms. Alt's farmyard that could be picked up by rainwater, washed 200 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," Bailey wrote.

Bailey ruled that the runoff was an agricultural stormwater discharge and thus not a point source discharge.

"This is not only a victory for the Alts, but for farmers everywhere," Steve Butler, president of the West Virginia Farm Bureau, said in a statement after the decision was handed down.

In an interview with The State Journal, Butler said the Farm Bureau has no problem with the EPA going after the worst violators who do pollute streams, but it should not go so far as to prevent small amounts of manure from leaving a building on a farmer's shoes or on the tires of a tractor.

Danielle Quist, senior counsel for public policy at the American Farm Bureau Federation, said the decision in the Alt case is important throughout the Chesapeake Bay watershed and nationally.

"This is the first time a federal court has ruled on what is agricultural runoff and do you need a permit," she said. "If you don't allow any amount of manure, feathers or dust on pathways or walkways without a permit, you pretty much have to get a permit. 

"That would create a burden on farmers regarding recordkeeping and liability. Other courts may come to a different conclusion if this issue comes before them, but we hope this decision is persuasive."

The next move

The EPA would not comment on whether it would appeal Bailey's decision or what its next step would be.

"EPA and DOJ are reviewing the court's decision," was all an EPA spokesman would say.

The groups that joined with the EPA in the suit did, however, issue a joint statement after Bailey's decision.

"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," the joint statement said. 

"These waterways have been contaminated by livestock excrement and other pollution from factory farms. The court's decision, if it stands, could have devastating impacts on the health of our rivers, streams and lakes and our communities. 

"Moving forward, we will be considering all of our legal options."

Angie Rosser, executive director of the West Virginia Rivers Coalition, issued an additional statement.

"Our concern is about safeguarding the waters in our backyards from pollution — in this case the Potomac River, which happens to be used by millions of people for recreation and as a drinking water source," Rosser said. "This decision opens the door for less control over pollution into streams and rivers from factory farms in West Virginia and across the nation. 

"Many of our West Virginia streams are already suffer from algae blooms, fish kills and intersex fish and we know run-off of industrial farming waste contributes to these problems. We are deeply troubled that this ruling will result in increased contamination of our water and intrude upon our right to enjoy clean, healthy streams and rivers."

fastfacts

The EPA says runoff from agriculture operations counts as a point source and requires a federal pollution permit. Farmers disagreed, saying the EPA was overstepping its authority. 

A federal judge agreed with a Hardy County poultry farmer who sued the EPA. 

The EPA has 60 days to decide whether to appeal.