EPA drops West Virginia CAFO case
September 22, 2014 | 07:36 PM
The Environmental Protection Agency announced Friday that it would not appeal a court decision in a case the agency brought against a confined animal feeding operation owned by West Virginia farmer Lois Alt.
EPA’s decision not to appeal raises questions about the future regulation of pollutants from stormwater.
As Cynthia Giles, the head of the EPA Office of Enforcement, noted in a blog post Friday, in 2011 EPA found that during rain manure and other pollutants from a CAFO owned by Alt were discharging into a nearby creek that flowed into the Potomac River.
EPA determined that the discharge required a Clean Water Act permit, which would have defined safeguards to minimize pollution and then issued an administrative order on the matter. The Alt CAFO clarified existing management practices and adopted new ones in its operations to reduce runoff of manure, and challenged the order in court.
After EPA’s follow-up inspection and correspondence with Alt confirmed that the changes would reduce pollution, EPA withdrew the order and requested the court to dismiss the case because the dispute was over.
But the U.S. Court for the Northern District of West Virginia heard the case and ruled against EPA and in favor of Alt in 2013.
Cynthia Giles
On Friday, Giles wrote that “EPA is not going to appeal this decision; our resources are better spent remedying more serious, ongoing pollution across the country. The briefs we filed in this case — and many others — state that Congress established CAFOs as point sources, and that when CAFOs discharge pollutants from the production area into waters of the United States, as the Alt operation did, the law requires permit authorization.”
Giles also said, “After more than a year of legal proceedings, the district court issued a decision that offers an overly broad view of the Clean Water Act’s exemption for agricultural stormwater.”
But the American Farm Bureau Federation, which supported Alt in her case, said today, “The court rejected EPA’s contention that the Clean Water Act regulates ordinary stormwater runoff from the farmyard (non-production areas) at large livestock or poultry farms.”
“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,” Farm Bureau said.
“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.”
Farm Bureau noted, however, that “the appeal could still go forward if any of the five environmental groups that intervened in support of EPA decides to go forward without the government.”
▪ Environmental Protection Agency — A Commitment to Keep Our Waters Clean and Safe
EPA’s decision not to appeal raises questions about the future regulation of pollutants from stormwater.
As Cynthia Giles, the head of the EPA Office of Enforcement, noted in a blog post Friday, in 2011 EPA found that during rain manure and other pollutants from a CAFO owned by Alt were discharging into a nearby creek that flowed into the Potomac River.
EPA determined that the discharge required a Clean Water Act permit, which would have defined safeguards to minimize pollution and then issued an administrative order on the matter. The Alt CAFO clarified existing management practices and adopted new ones in its operations to reduce runoff of manure, and challenged the order in court.
After EPA’s follow-up inspection and correspondence with Alt confirmed that the changes would reduce pollution, EPA withdrew the order and requested the court to dismiss the case because the dispute was over.
But the U.S. Court for the Northern District of West Virginia heard the case and ruled against EPA and in favor of Alt in 2013.
On Friday, Giles wrote that “EPA is not going to appeal this decision; our resources are better spent remedying more serious, ongoing pollution across the country. The briefs we filed in this case — and many others — state that Congress established CAFOs as point sources, and that when CAFOs discharge pollutants from the production area into waters of the United States, as the Alt operation did, the law requires permit authorization.”
Giles also said, “After more than a year of legal proceedings, the district court issued a decision that offers an overly broad view of the Clean Water Act’s exemption for agricultural stormwater.”
But the American Farm Bureau Federation, which supported Alt in her case, said today, “The court rejected EPA’s contention that the Clean Water Act regulates ordinary stormwater runoff from the farmyard (non-production areas) at large livestock or poultry farms.”
“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,” Farm Bureau said.
“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.”
Farm Bureau noted, however, that “the appeal could still go forward if any of the five environmental groups that intervened in support of EPA decides to go forward without the government.”
▪ Environmental Protection Agency — A Commitment to Keep Our Waters Clean and Safe
