Delmarva Farmer Columnists


Alt-versus-EPA lawsuit: What did it really mean? (Oct. 25, 2016)

Ag Law

By Ashley Ellixson, Legal Specialist, University of Maryland Extension

I am going to jump back a few years and talk about a case decided back in 2014.
Some of you may recall the Alt v. Environmental Protection Agency lawsuit but for those of you who do not, or need a refresher, I am revisiting what that important court decision means to animal feeding operations and its implications for the Clean Water Act.
The Facts
Lois Alt operates a poultry operation, a concentrated animal feeding operation in Hardy County, W.Va.
The facility consists of eight poultry houses. Particles of manure and litter from Alt’s houses had tracked into her farmyard, and some dust and particles had blown from the ventilation fans in the poultry houses and fallen on the farmyard.
According to the earlier lawsuit, precipitation had fallen and created runoff which carried this debris across pastures and into Mudlick Run, a “water of the U.S.” which by definition, EPA has jurisdiction over under the CWA.
Alt did not have a permit to discharge under the CWA.
She did have management practices and procedures in place to reduce manure and litter from getting into her farmyard. It was the runoff that caused EPA to assert its authority over Alt’s farmyard by issuing its “Findings of Violation and Order for Compliance.” The order stated:
• Alt’s operation was in fact a CAFO, and
• Alt’s operation “has discharged pollutants from man-made ditches via sheet flow to Mudlick Run during rain events generating enough runoff without having obtained a National Pollutant Discharge Elimination System permit.” To read more on the NPDES permit, see my blog post at
It was on these two facts that EPA concluded Alt violated the CWA and EPA could bring a civil action against her where Alt would be subject to a fine of up to $37,500 per day.
The Lawsuit
Alt filed a civil action on June 14, 2012 seeking declaratory and other relief due to EPA’s issuance of a Nov. 14, 2011, “Findings of Violation and Order for Compliance” under the CWA. Basically, Alt was asking the court to make a statement on her behalf regarding the EPA order. On March 12, 2013, the EPA moved to dismiss Alt’s case as moot.
The EPA’s motion was denied on April 22, 2013. During 2013, both parties submitted motions and cross-motions for summary judgment, which is what brings us to the court’s decision that set precedent for animal feeding operations today.
The Issue
The main issue in the lawsuit was whether the precipitation-caused runoff of litter and manure from the farmyard “agricultural stormwater” discharge was exempt from the CWA’s permit requirement.
More specifically, the concern was whether the pollutants which found their way to Alt’s farmyard from the poultry house through the ventilation fans, were exempt from the CWA’s permit requirement.
Before we look at each party’s arguments, it is important to note that the 2003 CAFO rule was upheld by the Second Circuit in Waterkeeper Alliance Inc. v. EPA, 399 F.3d 486 (2d Cir. 2005) which stated the definition of exempt “agricultural stormwater” was expanded to include land application discharges, if the land application met site-specific nutrient management practices.
EPA argued that the land application area regulations are the exclusive source of the agricultural stormwater exemption and that the agency should receive deference. EPA also asserted that stormwater from a CAFO’s production area does not qualify for the exemption and that Alt’s discharge was industrial in nature, not agricultural.
The court did not agree with EPA’s arguments.
Because Alt’s farmyard is not an area where animals are confined, the court held it was not a production area.
The court also found its interpretation consistent with EPA’s “longstanding interpretation that the agricultural stormwater exemption is inapplicable to runoff from within a confinement area, manure storage area, and similar features deemed to be the CAFO ‘production area.’ ”
In short, the court held the particles that found their way to Alt’s farmyard from the ventilation system were in fact considered “agricultural stormwater” and exempt from the CWA’s CAFO permit.
This decision is important to many livestock operations, not just poultry, because it addresses the issues around ventilation systems and incidental particles finding their way to farmyards which could lead to waterways.
When a farmer is following nutrient management plans and abiding by best management practices, it is difficult to address or control the incidental particles. The court in the Alt case saw that issue, understood the day-to-day operation on the poultry farm, and made a decision impacting all animal-feeding operations.

Cooperatives can be a welcome way for solutions (Oct. 25, 2016)

Keeping the Farm

By Dr. Bill McGowan, State Director for USDA Rural Development Delaware and Maryland

When the State Department of Health told the residents of Smith Island, Md., in 1992 that due to health and safety regulations they could no longer pick fresh crab meat in their own homes, they needed a solution.
Picking crabs from the daily catches of the island’s watermen provided much needed income for many families. To continue picking crab meat, a group of women pooled $4,000 among themselves and started a cooperative.
By 1996, they were picking crab meat in a communal building that met health and safety requirements for commercial seafood production.
Because of the Smith Island Crab Meat Co-Op, for the past 20 years Smith Island residents have had a space in which to pick fresh crab meat to support their families. This is the power of cooperatives.
During the month of October, USDA Rural Development celebrates National Cooperative Month.
I ’m proud to say I worked for Southern States Cooperative for eight years. I’d rather not date myself but that was when the Southern States territory was five states.
What a great way to learn about the cooperative model.
The idea of shared ownership and decision-making is a very stable form of doing business.
As we take time this month to celebrate the impact of cooperatives, I’d like to recognize three of the many ways co-ops help build a stronger rural America.
Co-ops keep our communities running. Cooperatives supply everything from housing to agricultural products. Some provide credit and financial services, while others literally keep the lights on by supplying electricity.
Today, communities even use innovative cooperative approaches to keep grocery stores open and local food systems running.
As rural populations dwindle, co-ops can be organized to meet a need that the marketplace is not adequately fulfilling.
For example, our Maryland Broadband Cooperative is working to increase broadband access for rural residents across Maryland and the Mid-Atlantic Region.
Co-ops build rural economies.
You might only think of cooperatives in the traditional sense of producing agricultural products or electricity but cooperatives provide so much more.
You may interact with a co-op every day and not even realize it.
Of the 261 cooperatives in operation in Maryland: 41 are daycares, 10 provide arts & craft/entertainment services, 11 offer grocery & consumer goods/retail, five sell mutual insurance, 50 focus on housing, and 115 are credit unions.
These cooperatives help to create the 618,000 jobs and $292.44MM in wages that cooperatives contribute to the Maryland economy each year. In Delaware, 41 cooperatives operate providing 122,000 jobs and paying $54.68MM in yearly wages.
Out of the 41 Delaware co-ops, 33 of these are Credit Unions, one provides healthcare, two support water/wastewater service, 1 offers grocery and consumer goods/retail, and 2 offer mutual insurance. No matter the type or service provided, co-ops help to build and develop rural economies in a variety of different ways.
Co-ops build community. Governed by principles such as voluntary membership and concern for community, co-ops build community through democratic governance and cooperation among their membership. With two of every five American citizens belonging to a co-op, local cooperatives are made of homegrown residents who are invested in their community. As a result, co-ops often prioritize supporting the sustainable development of their communities through policies accepted by their members. 
Kudos to my colleague Janice Stroud-Bickes state director for Virginia, for her wonderful column in early October highlighting how Rural Development works with cooperatives.
With this column, I wanted to continue the message promoting the importance of cooperatives in our lives and our communities. Please take a moment sometime this month to celebrate and support your local cooperative in your own way.
Resources are available for cooperatives operating in our region. Cooperatives in Delaware and Maryland can access USDA’s bi-monthly Rural Cooperatives Magazine detailing the latest national cooperative news.
For support starting a cooperative or dealing with technical issues, co-ops can request technical assistance from the Keystone Development Center, a rural cooperative development center designed to help rural cooperatives create jobs and support business expansion.