Baise: Stinging defeat for EPA and environmental groups

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A federal district court judge in West Virginia actually understands the Clean Water Act. The judge provided production agriculture with a huge victory on October 23, 2013.

The court in Alt v EPA provides a history of the CWA agricultural stormwater exemption.

It starts in 1973 when the EPA Administrator issued regulations which exempted agricultural discharges from needing a permit. Exempted discharges in 1973 included "…all silvacultural point sources; all confined animal feeding operations below a certain size; all irrigation return flows from areas less than 3,000 contiguous acres or 3,000 noncontiguous acres that use the same drainage system; all non-feedlot, non-irrigation agricultural point sources; and separate storm sewers…"

Environmentalists challenged this EPA interpretation and overturned it.

In 1987, Congress amended the CWA saying that a "point source" includes any discernible, confined and discrete conveyance including any pipe, ditch, channel, tunnel or conduit, but added, "This term does not include agricultural stormwater discharges and return flows from irrigated agriculture." Congress did not define agricultural stormwater.

The West Virginia court ripped EPA, saying "It appears to be a central assumption of the EPA's position that the agricultural stormwater discharge exemption had no meaning whatsoever from the time the exemption was added to the statute in 1987…This is an assumption that this Court simply cannot accept."

EPA claimed the Alt operation was a CAFO and had discharged pollutants coming from ventilation fans which ejected dust, manure, litter, dander and some feathers onto the ground in the farmyard around the confinement houses. Because EPA found that these alleged pollutants might get into man-made ditches via rainfall, the Alt operation was subject to civil penalties of $37,500 per day.

To scare the farmer even more, EPA added the threatening assertion that criminal action could be initiated and the producer, Lois Alt, "may be subject to a monetary fine and/imprisonment…"

The court dismissed EPA's arguments summarily by saying Congress intended that no permits would be required for agricultural stormwater runoff.

"In other words, a discharge of liquid manure would not be exempt just because it happened to be raining at the time, but a discharge of such manure caused by precipitation would be exempt."

READ MORE ON THIS CASE: Playing Chicken with EPA

Another key issue EPA tried to raise was that the farmyard area of the Alt poultry operation, such as the grass areas between and around the poultry houses, is part of the CAFO. EPA argued the farmyard area is a production area and any runoff is a point source and needs a permit. The court slapped EPA hard on this issue. On page 22 of the opinion, the court says "…the Alt farmyard is not a production area." (Other courts and attorneys should take note of this conclusion.)

In language that is critical for all CAFO operators, the court says "The areas between the poultry houses are clearly not the animal confinement area…"

EPA argued that litter, dust and feathers which may be in the farmyard would have to come originally from the production area. If so, these pollutants, if washed into a waterway, would be ineligible for the agricultural stormwater exemption. The court made it clear EPA is simply wrong.

In closing, the West Virginia court relies on another U.S. Court of Appeals opinion. It said that "Congress was affirming the impropriety of imposing…liability for agriculture-related discharges triggered not by negligence or malfeasance, but by the weather - even when those discharges came from what would otherwise be point sources." (Read numeric nutrient control into this language that EPA is trying to impose on agricultural nonpoint source runoff into streams.)

This is a stinging defeat for EPA and the environmental groups. No doubt there will be an appeal. EPA has lost a huge tool in its effort to control agricultural runoff. The American Farm Bureau deserves our appreciation for winning this case for all agriculture.

Gary H. Baise is a principal at OFW Law (Olsson Frank Weeda Terman Matz P.C.). This article first appeared in Farm Futures magazine. The opinions presented here are expressly those of the author. For more information, go to www.OFWlaw.com


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