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October 21, 2012
Farm bureaus may intervene

In a U.S. district court case with national implications, a judge has allowed the American Farm Bureau Federation (AFBF) to intervene on behalf of a farmer contesting an EPA enforcement action.  The case involves Lois Alt, a West Virginia poultry farmer, who, the Agency alleges, was operating a large concentrated animal feeding operation (CAFO) without a national pollutant discharge elimination system (NPDES) permit. 

The EPA had argued that the AFBF and its members, apart from Lois Alt, would not be affected by the enforcement action and, therefore, the AFBF should not be allowed to participate in the case.  The AFBF countered that if the EPA prevailed, many of its members would be compelled to obtain permits, thus establishing AFBF’s standing in the case.  Judge Bailey accepted the merits of AFBF’s argument.

CAFO pollutants

In a November 2011 complaint, the EPA claimed that inspectors at the Alt facility found that manure, feathers, dust, and other pollutants on the ground would be carried by rainwater into nearby manmade ditches and eventually into a perennial stream that feeds the South Branch of the Potomac River, an interstate water.  Since the facility met the definition of a large CAFO, the EPA asserted that a NPDES permit was required.  Alt was cited for not possessing the permit and ordered to apply for one. 

According to the AFBF, EPA’s order to Alt represents the latest Agency attempt to regulate nondischarging farmers– this time by unlawfully narrowing the statutory exemption for agricultural stormwater discharges.  “EPA has claimed here that the agricultural stormwater exemption does not apply to larger farms that qualify as concentrated animal feeding operations, except for certain ‘land application areas’ where crops are grown,” says the AFBF.

Impact on future actions

               Apart from the merits of EPA’s enforcement action, the issue addressed by Bailey was whether the AFBF should be allowed to bring its resources and expertise to the aid of the defendant.  The EPA stated that the AFBF and its member organization, the West Virginia Farm Bureau (WVFB), had failed to show how the Alt enforcement action would impact future enforcement of the CAFO program and NPDES permitting. 

               The farm organizations responded that if EPA’s argument prevails in this case, virtually every large CAFO would likely have an obligation to obtain a federally mandated permit if it rains enough in their area to wash manure and dust particles off their land and eventually into a jurisdictional water.  All AFBF and WVFB members so situated would likely have a legal obligation to obtain Clean Water Act permit coverage. Those farmers’ status as regulated dischargers would not depend on other facts unique to their operations or on a decision by the EPA or a state agency to take enforcement actions against them, stated the organizations; rather, their legal obligations would arise automatically from the district court’s ruling in EPA’s favor.

Immediate legal obligation

Judge Bailey ultimately agreed that the AFBF and WVFB sufficiently demonstrated that a ruling in EPA’s favor would practically disadvantage AFBF and WVFB members–not merely through an impact on future cases but through imposition of an immediate legal obligation on their farming operations.  The court therefore granted the organizations’ motion to intervene.

Click here to read Judge Bailey’s ruling in Alt v. EPA.

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