West Virginia Chicken Farmer Defeats EPA in Federal Lawsuit over Clean Water Act Permit

On October 23, 2013, Lois Alt, owner of Eight is Enough Farm1 in Hardy County, West Virginia, won summary judgment in the U.S. District Court for the Northern District of West Virginia against the United States Environmental Protection Agency (“EPA” or “Agency”) and a number of environmental groups. Ms. Alt filed suit seeking declaratory judgment after EPA issued an Order for Compliance demanding that she apply for a National Pollution Discharge Elimination System (“NPDES”) permit for litter and manure washed from her farm by rain or face civil penalties. Ms. Alt asserted that any drainage from her property caused by rain was subject to a statutory exemption in the Clean Water Act (“CWA”) that excludes “agricultural stormwater discharges” from the CWA definition of a point source. Ms. Alt was joined in her lawsuit by the West Virginia Farm Bureau and the American Farm Bureau.

After Ms. Alt filed her lawsuit, EPA withdrew its Order and moved the Court to dismiss the action as moot. In a surprising move, Judge John Preston Bailey denied EPA’s motion, stating in his Order that this controversy persisted despite EPA’s withdrawal and that this issue could potentially affect thousands of farmers.

Forced to proceed, EPA asserted that the agricultural stormwater runoff exemption applied only in extremely limited circumstances. The Agency argued that discharge or runoff from “production areas” in CAFOs requires a permit. In fact, CAFOs are specifically identified as point sources in the CWA. In this case, all of Ms. Alt’s production areas (animal enclosures, feed storage, litter/manure storage) were under roof, but some manure and litter materials made their way into the farm’s outdoor areas during transportation, clean-up and from ventilation fans. Precipitation then carried some of these materials to a creek approximately 200 yards away. EPA argued that because these materials originated in the production areas of a CAFO, they were not eligible for the exemption. The Court rejected this argument.

The Court held that, “because neither the Act nor EPA’s implementing regulations has defined “agricultural stormwater discharges” within the context of CAFO farmyard runoff, it falls to this Court to interpret this statutory term.” The Court went on to state then when using plain English and common sense, that Ms. Alt’s operations (a chicken farm) were un-deniably “agricultural.” The Court reasoned further that the runoff at issue was caused solely by precipitation and was therefore “stormwater.” Based on this analysis the Court declared,  “that litter and manure which is washed from a farmyard into navigable waters by a precipitation event is an agricultural stormwater discharge and therefore not a point source discharge, thereby rendering it exempt from the NPDES permit requirement of the Clean Water Act.”

This order is a win for farmers and will likely prevent the EPA from issuing similar violations in the future. It also provides much needed clarity regarding an exemption that is often ignored by the Agency.


1 Eight is Enough is a concentrated animal feeding operation (“CAFO”).

Marc Bryson concentrates his practice in the areas of environmental law, administrative law, and energy law. He regularly advises industrial, municipal, and oil and gas clients on matters involving permitting and regulatory requirements for water and wastewater, solid and hazardous waste, and other environmental and regulatory matters.
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