The legal battle over how to define agricultural stormwater — and exactly when permits are required for animal-farm operators — is not over yet in West Virginia.

The EPA filed a notice this month that it will appeal an October 2013 ruling by a federal district court judge that the agency had no legal right to demand that chicken farmer Lois Alt obtain a permit for her Hardy County operation.

Supporting the EPA in its appeal are several environmental groups, including Food and Water Watch, the Potomac Riverkeeper and Earthjustice.

At issue is whether certain types of discharges from the animal-feeding operation of a farm are considered agricultural stormwater and thus exempt from the Clean Water Act, or whether they are “process wastewater” from industrial operations and therefore regulated. (See our in-depth story on the issue here.)

In the Alt case, these discharges included trace amounts of manure or dust from chicken-house fans that, when they came into contact with rainwater, would wash into man-made ditches and possibly into the nearby stream.

In October, West Virginia U.S. District Judge John Preston Bailey said the common-sense interpretation of those discharges is that they are agricultural stormwater, and that they are therefore exempt from Clean Water Act regulation.

Alt’s attorney, David Yaussy, said he has only seen the notice of appeal, not the content of it, so he couldn’t say precisely what the EPA would be arguing.

But Scott Edwards of Food and Water Watch predicted the appeal would hinge on several key questions: Did the EPA act arbitrarily and capriciously when it required the Alt to obtain a permit to discharge on their farm? Does the definition of agriculture stormwater refer only to runoff of manure placed on land for crops to grow, or does it extend to the animal production area? And should the EPA, as the regulating agency, get some deference in how it interprets somewhat vague statutes?

Edwards added that EPA’s deference in interpreting regulations is not always something the environmental movement champions. Having faced off against regulators in court several times, he said, “the EPA gets a ton of deference” when it comes to interpreting statutes.

As a hard-working grandmother, Lois Alt may be a sympathetic figure, Edwards said, but that doesn’t mean she shouldn’t be required to have a discharge permit for her poultry farm.

The Alt case began in 2011, when EPA inspectors arrived on Lois and Tony Alt’s Old Fields farm to do an inspection. The EPA establishes how many animals a farm has to have before it needs a permit to discharge, but each state can develop its own program. EPA wanted to work with West Virginia to evaluate farms and determine if they needed permits. Agency officials chose four farms for the first inspections. Alt’s was included because it is large — Alt has eight chicken houses — and it was near a water source, a creek called Mudlick Run that reaches the western branch of the Potomac River.

Six months after the inspection, she received a letter from the EPA stating she was discharging pollutants into Mudlick Run and needed a permit if she wished to continue such an activity. If she did not get one, she would be subject to fines of $37,500 a day. The discharges were coming in the form of trace amounts of manure on the ground between the chicken houses as well as dust from the chicken houses’ exhaust fans. When it rained, water carried those pollutants into man-made ditches and then Mudlick Run, the EPA said. The EPA called that discharge “process wastewater.”

Alt’s husband and state officials urged her to get the permit when she first contacted them. But Alt told the Bay Journal she didn’t feel right about the request. If she was polluting, she reasoned, she wanted to know what she could do to stop polluting. The permit wasn’t requiring that she stop discharging. It just gave her permission to continue to do so.

“Nobody could tell me anything that I could do differently. They just said, ‘get this paper.’ Well, what’s this paper going to do to protect the stream?” she said. “I do enough paperwork as it is.”
Alt and her husband had made significant investments in the environmental management of the farm since she bought it in 2001. She bristled at being called a polluter, but had decided to apply for the permit when the West Virginia Farm Bureau contacted her and offered to fight the case with her.

On June 14, 2012, one year after the first inspection, Yaussy, a Charleston attorney filed a lawsuit on behalf of Alt. Yaussy argued that the “process wastewater” was in fact plain stormwater, which resulted in a discharge only when it rained.

Six months later, EPA inspectors returned. They said Alt no longer needed a permit because of some small changes she had made to her operation.

But Alt, Yaussy and the Farm Bureau said they decided to continue their fight so that all farmers would have clarity about the agency’s expectations.
In October, the judge sided with them.

The next step will be the Appeals Court of the 4th Circuit, in Richmond. It has a reputation for being a conservative court that has not favored regulation. But Edwards said it also has “some good history” in granting deference to federal agencies.

Edwards said the EPA’s decision to rescind its demands that Alt apply for a permit may have influenced the lower court’s judge, but it shouldn’t affect the main questions in the case.

“It may have sent a message to the judge that EPA was backtracking,” he said. “But the reason was, ‘we don’t think you need a permit because we don’t think you’re discharging anymore. Not that these kinds don’t require permits, but that you’re not discharging anymore.’ Legally, the fact that they withdrew the permit shouldn’t have influenced the court.”