Bay Journal

West Virginia Poultry Farmer Wins Her Case against the EPA

Lois Alt sued the EPA over pollution-permit rules. Yesterday, a judge ruled she won.

  • By Rona Kobell on October 24, 2013

A West Virginia chicken farmer who sued the EPA over its authority to regulate her farm, has won her case.

A federal judge in Morgantown ruled Wednesday that the EPA had no legal right to force Lois Alt to obtain a permit to discharge runoff from her Hardy County farm. The judge ruled that the runoff in question was routine stormwater and therefore not subject to the requirements of the Clean Water Act.

The runoff in question at Alt’s farm included trace amounts of manure, chicken feathers, dust from the houses’ exhaust fans and dander, which inspectors said could come into contact with rainwater and be washed into Mudlick Run, a stream on her property. The EPA inspectors called this runoff “process wastewater,” which is defined as water from cleaning manure pits, washing barns or cleaning off animals. Process water is regulated under the Clean Water Act.

But Alt’s attorney, David Yaussy, argued that the runoff was stormwater, which is exempt from the act. He wanted the judge to both define the runoff as agricultural stormwater and agree that it was exempt from the statute.

U.S. District Judge John Preston Bailey did just that in his ruling, saying that the common-sense interpretation of what stormwater is would apply here, and that it would be exempt from the law.

“The term 'agricultural storm water discharge' was not and has not been defined in the statute," Bailey wrote, according to the Associated Press. "The fact that Congress found it unnecessary to define the term indicates that the term should be given its ordinary meaning."

The case began in June 2011, when EPA inspectors arrived on Alt's farm as part of an effort to begin a more robust enforcement of the laws surrounding Concentrated Animal Feeding Operations, or CAFOs. The EPA has regulations regarding how many animals a farm has to have before it needs a permit to discharge, but states can develop their own programs. EPA inspectors were working with West Virginia’s Department of Environmental Protection to evaluate farms and determine if they needed permits. They chose four farms for their initial inspections. Alt’s was one of them.

Click here to read about the case in the Bay Journal, and see photos from the farm.

Alt told the Bay Journal she thought the inspection went pretty well, and that there were no major problems. But six months later, she received a letter from the EPA stating that she was discharging pollutants into Mudlick Run, a stream on her property. The letter stated she needed a permit, and would be subject to civil fines of $37,500 a day if she didn’t get one.

Alt, with the help of the West Virginia Farm Bureau and the American Farm Bureau Federation, decided to file a lawsuit against the EPA challenging its authority to force her to get the permit, contending the runoff in question was agricultural stormwater and thus not subject to the EPA’s authority. She filed the suit in June 2012, a year after the inspection. In December, the EPA rescinded the requirement that she get the permit.

But Alt and Yaussy still pushed ahead with the suit. They contended the case wasn’t only about protecting Alt from further requirements, but also about other farmers. Alt said she didn’t want to see anyone else endure what she did. 

Yaussy said Thursday that his client and her husband, Tony, were elated about the ruling, and hopeful that it will help other farmers.

“The other winners are the other farmers who are in the same situation as Lois and Tony,” Yaussy said. “They’re going to be the big beneficiaries of the judge’s decisions.”

Already, Yaussy said, he’s forwarded the decision to one of the other farmers who was required to obtain a permit as a result of the 2011 inspections.

The ruling is another defeat for the EPA, which is struggling to combat pollution from farms. Recently, National Pork Producers prevailed in a Louisiana court after the EPA tried to regulate farms that could discharge into waters of the state. The court ruled that the discharge had to be real, not theoretical. That decision is only binding in the 5th Circuit, which covers Louisiana, Mississippi and Texas. Court challenges and the different politics in states with agricultural industries have led to inconsistent rules.

The agency referred the Bay Journal's query to the U.S. Department of Justice. They responded that they are reviewing the opinion and have no further comment at this time.

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About Rona Kobell

Rona Kobell is a former writer for the Baltimore Sun. .(JavaScript must be enabled to view this email address).

Read more articles by Rona Kobell

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