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Alt-versus-EPA lawsuit: What did it really mean? (Oct. 25, 2016)
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.
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 http://www.aglaw.umd.edu/blog/rose-acre-farms-wins-long-battle-with-nc-regulators-over-air-emissions?rq=waters%20of%20the%20us.
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.
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 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.
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