‘Eight’ not enough for EPA

West Virginia’s Lois Alt is back in the news again. I’ve mentioned her before in this space. She is the plucky poultry farmer whose family owns the Eight is Enough chicken farm in Hardy County in the Eastern Panhandle of West Virginia. The farm is so named because the Alt family decided to stay small, limiting their production capacity to eight chicken houses. Small that they are, however, they have taken on the Leviathan in a David vs. Goliath style high-stakes court battle.

In November 2011, the EPA sent an order to the Alt family accusing them of violating the Clean Water Act by discharging pollutants (through its exhaust fans!) from a concentrated animal feeding operation without a National Pollutant Discharge Elimination System permit. The EPA ordered the Alts to apply for an NPDES permit or face enforcement action that could include fines of $37,500 per day and possible criminal penalties that could result in jail time. Their next step was to try to reason with the EPA. According to Alt, the EPA’s response was “apply for the permit and you will probably never hear from us again.” It was that response that motivated her to her to file suit against the agency, in what has been called a “surprising move.” The West Virginia Farm Bureau and the American Farm Bureau Federation have joined the Alts in challenging the EPA.

The Alts could have complied and filed for the NPDES. They did not because they believe the EPA has overstepped its statutory authority that is confined to “point source pollution.” in other words, if the Alts were dumping animal waste directly into a waterway, the EPA could require that they apply for a permit to do so.

There is no precedent for the EPA’s claims – this is all new territory. If they prevail in this legal action, this would represent a tremendous increase in power for the agency – a power grab, if you will. And by the way, as a point of information, the federal government claims ownership to all bodies of water and waterways in the United States. Based on certain interpretations that have been handed down, there are some who believe that this could include a backyard pool.

But I digress. In another “surprising move,” in April the EPA suddenly withdrew its demand that the Alts apply for a permit. In doing so, the EPA believed that the lawsuit would go away. It did not. The Alts want a decision so that they can go on with their lives. The Farm Bureau wants clarity for its members. The EPA wants out of the case altogether, claiming that since they have backed off of the Alts, the point is now moot. However, U.S. District Judge John Preston Bailey was having none of it, denying the EPA’s motion to dismiss in April.

Since the EPA has not been allowed to wriggle out of the case, they have gone back on the offensive, contending that 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. We’ll see if that holds up in court.

Interestingly enough, everyone involved in the case seems to agree that the Alts have been magnificent stewards of the environment, taking every reasonable precaution. But this isn’t good enough for the EPA. According to the Associated Press, the agency said “the cleanliness of the Alt’s operation today is irrelevant.”

One would think that the cleanliness of their operation is not only relevant, but should be the only thing that matters to the EPA. Apparently, the only thing the EPA is concerned about is the scope of its power.

Regulatory agencies are vested with their authority from legislation enacted by people that we elect. Ambitious bureaucrats should not be permitted to write new law or even interpret current law. They should adhere to the rules and not make them up as they go along.

There is reason to be concerned about water quality. However, there is equal cause for concern about regulatory agencies overstepping their authority. I don’t want to have to apply to the EPA for a permit because a squirrel or a deer might be doing their business in my yard. There is such a thing as nature. We’re all subject to its laws.

— Elliot Simon writes from

Harpers Ferry

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