|January 6, 2014|
Previously published on December 2013
Over the last several years, medium and large poultry farms in Maryland and across the country have been lining up to apply for National Pollutant Discharge Elimination System (“NPDES”) permits in order to comply with EPA’s interpretation of regulated point source discharges under the Clean Water Act (“CWA”). Recent media reports and anecdotal reports from farmers have indicated that these permit applications are backlogged due to inadequate agency staffing and a complex, expensive application process that requires farmers to hire outside experts to write exhaustive nutrient management plans. A recent decision by a federal judge in West Virginia, however, could set a national precedent that eliminates the need for production farms to obtain NPDES permits.
On October 23, 2013 in Alt v. EPA, Chief Judge John Preston Baily of the United States District Court for the Northern District of West Virginia declared unenforceable an EPA enforcement order requiring poultry farmer Lois Alt to obtain an NPDES permit for discharges of poultry manure from Alt’s Concentrated Animal Feeding Operation (“CAFO”) into a creek adjacent to the farm. Alt operates a CAFO with eight poultry houses. According to EPA, poultry manure and litter was routinely tracked or spilled out into the farmyard area between Alt’s poultry houses, and dust composed of manure and litter was discharged into the farmyard area from the ventilation fans on the houses. EPA alleged that precipitation washed the discharged material from the farmyard area into an adjacent creek in violation of the CWA.
Although CAFOs are considered point sources subject to NPDES permit requirements, there has been a long-standing (although rarely interpreted) exemption for “agricultural stormwater” coming off farms, including CAFOs. After EPA withdrew its enforcement order (fearing a legal challenge), Alt filed suit against the agency seeking a declaratory judgment that the discharges alleged by EPA constituted agricultural stormwater and were therefore exempt from NPDES permitting requirements.
EPA advanced four primary arguments in support of its claim that the discharges could not be exempt agricultural stormwater: 1) Alt’s farmyard, including the area between the poultry houses, was a CAFO “production area” and thus ineligible for a stormwater exemption; 2) even if the farmyard was not a production area, the production area was the source of the manure in the farmyard; 3) because the discharges did not have an “agricultural purpose,” the exemption did not apply; and 4) the discharges were industrial, not agricultural. After conducting a lengthy review of the history of CWA enforcement, Judge Baily rejected each of the arguments advanced by EPA and agreed with Alt that the alleged discharges constituted agricultural stormwater that did not require an NPDES permit. The Judge declared the EPA order unenforceable, thus relieving Alt from a NPDES permit requirement.
If the Alt decision stands, it could have a widespread impact on EPA control over production farming. In its briefing before Judge Baily, EPA predicted that a ruling in Alt’s favor would lead to extensive NPDES permit litigation as individual farms evaluated the risks of operating without a permit. Given the backlog of NPDES applications in the state of Maryland alone, Alt may render moot a process that is already dysfunctional.