The Times West Virginian

West Virginia

May 1, 2013

Judge: Farmer’s EPA lawsuit will be heard

MORGANTOWN — The U.S. Environmental Protection Agency is still exerting a permit power that chicken growers contend it doesn’t have, so a federal judge said he won’t dismiss a lawsuit by a West Virginia farmer the agency had accused of polluting the Chesapeake Bay watershed.

The EPA argued Lois Alt’s lawsuit was rendered moot in December, when it withdrew violation notices and proposed fines against her Eight is Enough farm in Hardy County. But Alt, the West Virginia Farm Bureau and the American Farm Bureau want their day in court, claiming the EPA’s actions in her case have implications for farmers throughout the region.

U.S. District Judge John Preston Bailey agreed last week, denying EPA’s motion to dismiss. The agency had not yet filed a response as of Tuesday.

In his ruling, Bailey said the EPA hasn’t changed its underlying position that some chicken farms are concentrated animal feeding operations and are now required to obtain permits they’ve never previously needed under the Clean Water Act.

The EPA has also issued orders to two other farmers in West Virginia and Virginia that were virtually identical to the one issued against Alt, Bailey said.

“EPA’s adherence to its underlying position ... demonstrates that the agency’s challenged assertion of authority not only can be ‘reasonably expected to recur,’ but in fact is ongoing even now,” Bailey wrote.

“EPA plainly has not withdrawn, rescinded, repudiated or otherwise altered its legal position that — despite the statutory exemption for agricultural storm water — farmyard storm water must be regulated through a federally mandated permit,” he wrote.

Although EPA did send a letter withdrawing Alt’s violations, Bailey noted, it did not explain the basis for its change of heart. Nor is Alt’s mere compliance with the agency’s demands enough to make the case moot.

“Otherwise, a defendant could engage in unlawful conduct, stop when sued to have the case declared moot,” Bailey wrote, “then pick up where he left off, repeating this cycle until he achieves all his unlawful ends.”

The EPA said dust, feathers, and fine particles of dander and manure from Alt’s chicken farm could land on the ground, come into contact with storm water and flow into ditches, eventually reaching Chesapeake Bay tributaries.   

The EPA is focused on protecting the watershed, which encompasses parts of Delaware, Maryland, New York, Pennsylvania, Virginia and West Virginia, and all of the District of Columbia.

Alt acknowledged there is waste-tainted runoff from her farm but argued it was agricultural storm water, not “process wastewater” that would be subject to regulation under the Clean Water Act.

 

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