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EPA's Assault on Large-Scale Livestock Operations

The government agency appears committed to eliminating stormwater exemption for Ag.

The Environmental Protection Agency has decided it will no longer pursue a case against West Virginia farmer Lois Alt’s environmental actions on her poultry farm. But they’re far from giving up their fight challenging the actions of CAFOs (concentrated animal feeding operations) in other parts of the country.

EPA’s dispute with Alt began when the agency issued an order threatening her with $37,500 per day in fines unless she applied for a Clean Water Act permit for stormwater runoff from her farmyard.

EPA is likely to continue taking large-scale livestock farms to court, say experts.

Proud of her record of environmental stewardship, Alt responded with a lawsuit challenging the EPA order. Her complaint cited the long-standing Clean Water Act exemption of “agricultural stormwater discharges.” The dispute garnered national attention as the American Farm Bureau Federation 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 blinked first. The agency first attempted to back away from the fight about six months after 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.

The U.S. Court for the Northern District of West Virginia ruled against EPA and in favor of farmer Lois Alt in October 2013.

Since no federal court had ever addressed the question of stormwater runoff from farms such as Alt’s, the lower court’s ruling carries 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.

EPA’s voluntary dismissal of its appeal signals the agency’s desire to avoid a likely loss in the appellate court, AFBF claims.

Gary Baise, a lawyer at OFW Law who commonly represents agricultural operations in water litigation, says the Alt case is crucial in defending livestock operations in court. He claims EPA continues to try to go after the stormwater exemption and allow courts to help eliminate the stormwater exemption which has rightly protected farmers for decades.

In an EPA administrator blog explaining the reason for not appealing, EPA assistant administrator Cynthia Giles said that the Alt court decision “offers an overly broad view of the Clean Water Act’s exemption for agricultural stormwater.” Giles went on to say that although EPA thinks the district court decision is wrong, the agency would stop spending money on litigations about the Alt’s farm CAFO, but would continue to attempt to regulate other CAFOs. 

“Pollution from CAFOs flowing into local waterways when it rains is an environmental and public health risk. The law gives EPA the authority to require that agriculture operations with large numbers of animals in a small area that discharge pollutants to U.S. waters obtain a permit, to reduce their environmental impact,” Giles wrote. “One district court decision does not change either the law across the country or EPA’s commitment to protecting water quality."

AFBF general counsel Ellen Steen says, “EPA appears to be saying it will continue to enforce its position against other farmers, even though it’s not willing to defend that position in court.”

EPA isn’t backing down, so it will be all that more important for livestock owners to make sure there are no cracks in their environmental practices to give EPA a leg up in a future court challenges.

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