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Dec. 23 --The Environmental Protection Agency has asked the U.S. Court of Appeals for the Fourth Circuit to review a district court ruling that said the agency can't require farmers to obtain Clean Water Act discharge permits for agricultural stormwater runoff from farmyards (Alt v. EPA, 4th Cir., No. 13-2534, appeal filed 12/23/13).
The Dec. 23 appeal by EPA follows an Oct. 23 ruling by the U.S. District Court for the Northern District of West Virginia holding that stormwater runoff from litter and manure is exempt from National Pollutant Discharge Elimination System permitting requirements under Section 402 of the Clean Water Act (Alt v. EPA, 2013 BL 218814, N.D. W.Va., No. 2:12-cv-00042, 10/23/13; ).
The environmental groups Food and Water Watch, Potomac Riverkeeper, Waterkeeper Alliance, Center for Food Safety and the West Virginia Rivers Coalition, which intervened on behalf of the EPA, also filed separate notice of appeal Dec. 20 of the ruling.
The district court ruled that litter and manure washed from “the farmyard to 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.”
At issue was a 2012 lawsuit filed by West Virginia poultry grower Lois Alt against the EPA, challenging the agency's authority to regulate livestock farms under the Clean Water Act by interpreting regulations in ways that treat ordinary agricultural stormwater runoff as “process wastewater,” effectively making all areas of poultry farms regulated production areas.
In particular, the district court said the areas between poultry houses are clearly not animal confinement areas and that manure and litter in the farmyard “would remain in place and not become discharges of a pollutant unless and until stormwater conveyed the particles to navigable waters.”
Alt challenged the basis for the EPA administrative order against the Eight is Enough broiler operation near Old Fields, W.Va., that threatened penalties as high as $37,500 a day for not obtaining an NPDES permit.
EPA could not be reached for comment on the appeal.
However, Scott Edwards, co-founder of the Food and Water Justice, a project of Food and Water Watch, told Bloomberg BNA Dec. 23, “We believe that the court completely misapplied well-settled law in exempting the Alt pollution discharges from the Clean Water Act.”
Edwards said, “The court has, in effect, given these highly polluting, yet sorely under-regulated facilities, an even greater license to pollute. Not only does the law require permits for the kinds of pollution that Alt admits is coming from her operation, but the deteriorating conditions of our waterways demands it.”
Ellen Steen, general counsel for the American Farm Bureau Federation, which intervened on behalf of Alt in the case, told Bloomberg BNA in a Dec. 23 e-mail, “If EPA wishes to persist in its unlawful application of the Clean Water Act, we are pleased to take the matter to the appellate court. We are confident the Fourth Circuit, too, will decide this case in favor of Mrs. Alt.”
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The notice of appeal in Alt v. EPA is available at http://op.bna.com/env.nsf/r?Open=smiy-9enpsz.
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