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November 08, 2013
CWA exemption applies to CAFO litter

The farming industry won the first round in a legal dispute over whether the Clean Water Act’s (CWA) agricultural stormwater exemption applies to areas of concentrated animal feeding operations (CAFOs) where manure is not intentionally applied. 

In the case, Lois Alt, who runs a poultry CAFO in Hardy County, West Virginia, petitioned the U.S. District Court for the Northern District of West Virginia to overturn an EPA order that required that Alt obtain a National Pollutant Discharge Elimination System (NPDES) permit for discharges of litter, dander, and feathers that spewed from fans used to ventilate buildings in which the animals were kept and accumulated on the ground between the buildings along with spilled manure.  The Agency initially stated that stormwater caused these substances to enter man-made ditches that carried the discharges to a system of streams that empty into Chesapeake Bay.  The EPA withdrew its order after Alt cleaned up the areas of concern.  But the District Court directed that the case proceed to clarify the meaning of the agricultural stormwater exemption.

Agricultural stormwater not defined
The District Court notes that “nowhere did Congress define the term ‘agricultural stormwater’ nor did the EPA promulgate any regulations defining the term.”  Nonetheless, in their arguments, the EPA and a number of environmental groups point to guidance letters the Agency issued, one of which explicitly states that any point source discharge of stormwater that comes into contact with litter released through confinement house fans and reaches waters of the United States is a violation of the CWA unless authorized by a permit. 

Alt, supported by farming organizations, countered that stormwater that might come into contact with dust, feathers, or dander from poultry house ventilation fans deposited on the ground outside the production areas constitutes agricultural stormwater that is expressly exempt from NPDES permitting requirements.  Much of the plaintiff argument rests on defining the area between the confinement houses as part of an agricultural operation, whereas the EPA states that discharges from that area must be considered industrial—that is, a part of the CAFO operation—rather than agricultural. 

The Agency also argued that the litter and manure that may be in the farmyard would have originally come from the production area, rendering it ineligible for the stormwater exemption.

“Agriculture related” sufficient

In siding with the plaintiffs, District Judge John Preston Bailey emphasizes that the areas between the poultry houses are clearly not the animal confinement area, the manure storage area, the raw materials storage area, or the waste containment areas—that is, those components of a CAFO subject to NPDES permitting and not entitled to the agricultural stormwater exemption. 

Regarding the Agency’s assertion that the materials between the buildings originated in the production area, Bailey cited an opinion by the U.S. Court of Appeals for the 3rd Circuit that stated that agricultural stormwater discharges are exempt from regulation even when those discharges came from what would otherwise be a point source.

Bailey was also not persuaded by EPA’s contention that a discharge must have an agricultural purpose to be entitled to the stormwater discharge exemption.  “The only requirement is that the exempt discharges must be agriculture related,” wrote Bailey.  “It is clear that the incidental manure and litter are related to the raising of the poultry and are therefore related to agriculture.”

Reactions

“The outcome of this case will benefit thousands of livestock and poultry farmers who run their operations responsibly and who should not have to get a federal permit for ordinary rainwater from their farmyards,” said Bob Stallman, president of the American Farm Bureau Federation.

The reaction was different from the five environmental groups that  intervened on behalf of the EPA.  “The court’s decision, if it stands, could have devastating impacts on the health of our rivers, streams and lakes and our communities,” the groups said in a joint statement.  “Moving forward, we will be considering all of our legal options.”  Those options will include an appeal of Bailey’s decision.

Alt v. EPA

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