AmericanFarm.com

Alts emerge victorious against EPA in U.S. court

By BRUCE HOTCHKISS
Senior Editor

(Oct. 14, 2014) Lois and Tony Alt, looking over their pristine “Eight is Enough” poultry farm in Old Fields, W.Va., can finally take deep sighs of relief.
Their long fight with the EPA is over. They won.
A U.S. District Court in West Virginia ruled that charges the Alts had violated the Clean Water Act were unfounded, and first the EPA withdrew from its legal action and then, only recently, the five environmental organizations that had joined the EPA as intervenors, followed suit.
Lawyers at the American Farm Bureau Fcderation, which along with the West Virginia Farm Bureau, had come to the aid of the Alts, surmised that the EPA had decided it could not win and was anxious not to set a precedent of failure in future and perhaps similar cases involving alleged violations of the Clean Water Act.
But “Eight is Enough” farm, cited by the American Farm Bureau Federation as “an exemplary run operation,” can quietly celebrate, after two years of litigation, its David-and-Goliath victory.
EPA’s dispute with Lois Alt began when the agency issued an order threatening her with $37,500 in fines per day unless she applied for a Clean Water Act permit for stormwater runoff from her farmyard.
EPA cited no deficiencies in Alt’s farming practices, but contended that stormwater containing even miniscule amounts of manure, dust and feathers triggered Clean Water Act liability and permitting obligations.     
Proud of her record of environmental stewardship, Alt responded with a lawsuit challenging the EPA order. Her complaint cited the 40-year Clean Water Act exemption of “agricultural stormwater discharges.”
The dispute garnered national attention as AFBF and West Virginia Farm Bureau joined the suit on the side of Alt, and five environmental groups joined on the side of EPA. All parties focused on the broader implications of the lawsuit for farmers nationwide.    
EPA first attempted to back away from the fight about six months after Mrs. Alt filed suit and just weeks before briefing was to begin. The agency withdrew its order and asked the court to dismiss the suit.
The court refused, finding that EPA had not changed its legal position and that the Farm Bureau groups had an ongoing interest in resolving the validity of that position for the benefit of other farmers.     
Forced to fight, EPA and its allies came out guns blazing, filing more than 500 pages arguing for Clean Water Act regulation of ordinary stormwater from any part of a perfectly well-run livestock or poultry farm.
The court roundly rejected those arguments. 
However, the case was not closed until the five environmental organizations which had signed up with the EPA to the same course and withdrew.
The AFBF noted that, since no federal court had ever addressed the question of stormwater runoff from farms such as Alt’s, the lower court’s ruling carried implications for tens of thousands of poultry and livestock farms nationwide.
An appellate court decision upholding that ruling would make it even harder for EPA to persist in imposing wide-scale federal permitting requirements on large animal farms (known as “concentrated animal feeding operations” or “CAFOs”). EPA’s voluntary dismissal of its appeal signals the agency’s desire to avoid a likely loss in the appellate court, the AFBF said.
However, the appeal could still go forward if any of the five environmental groups that intervened in support of EPA decides to go forward without the government.
“EPA knows its effort to regulate perfectly well-run farms cannot withstand legal scrutiny, and the agency doesn’t quite know how to deal with that,” AFBF President Bob Stallman said.
“Apparently, the agency would rather move on and continue pursuing its regulatory agenda farm-to-farm, but not defend it in court.”
Although EPA’s motivation seems self-evident, said Stallman, “you wouldn’t know it from the agency’s spin machine.”
A few days after the EPA withdrew from ALT va EPA, the five co-signors — Potomac Riverkeeper Inc., Food & Water Watch, West Virginia Rivers Coalition, Waterkeeper Alliance, and Center for Food Safety, — also announced they were following suit.
“The environmental intervenors, who were represented in the case by Earthjustice, the Columbia Environmental Law Clinic, and the Center for Food Safety, are deeply disappointed in the EPA’s decision to drop its appeal of a ruling that misapplied Clean Water Act permitting requirements for a confined poultry growing facility,” said Susan J. Kraham, senior staff attorney at the Columbia Environmental Law Clinic. “In the suit, the facility admitted it discharges pollutants into a tributary to the Potomac River,” said Kraham.
The intervenors, however, continued to urge EPA to step up enforcement of the Clean Water Act by ensuring that large confined animal feeding operations obtain permits to control discharges of animal waste.
“Although CAFOs remain one of the largest unaddressed sources of pollution in the United States, EPA reported in 2013 that only 36 percent of the largest identified CAFOs have obtained Clean Water Act permits,” said Sarah Rispin, Potomac Riverkeeper general counsel. “Unregulated animal waste discharges from CAFOs are substantial contributors to water quality problems, including harmful algae blooms and dead zones, in the Potomac River and Chesapeake Bay watersheds,” Rispin added.