EPA asks judge to reject Hardy Co. farmer’s lawsuit

ELKINS (AP) — The U.S. Environmental Protection Agency wants a judge to affirm its power to make poultry growers get water pollution permits for runoff from their operations — even though it’s withdrawn the requirement for a West Virginia farmer who sued.

Hardy County farmer Lois Alt is challenging EPA’s authority to apply a Clean Water Act provision to what she says is storm water runoff, calling its action an illegal overreach and a threat to other growers in the Chesapeake Bay watershed.

But EPA said in a motion for summary judgment filed Thursday that its authority is clear, and Alt has no justification for an exemption.

The EPA had threatened to fine Alt for polluting streams but rescinded the violations after she sued last year.

U.S. District Judge John Preston Bailey then denied EPA’s motion to dismiss the case because the agency hasn’t changed its underlying position that some chicken farms are “concentrated animal feeding operations.” That would mean the EPA can require them to obtain permits they’ve never previously needed.

Nor is Alt’s mere compliance with the agency’s demands enough to render the case moot. Bailey said EPA has issued orders to two other farmers in West Virginia and Virginia virtually identical to the one issued against Alt.

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 watershed 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.

In its latest motion, EPA said its interpretation of the law “is not a new position developed for enforcement in the Alt order.”

EPA said it has long held the view that it can require a permit for manure and litter discharged from poultry houses through ventilation fans if it threatens waterways. The cleanliness of Alt’s operation today is irrelevant, the agency said.

“Plaintiffs seem to imply that a permit is required only for bad actors, or that the requirement to apply for a permit is a punitive measure,” the EPA wrote. “That is neither a fair nor accurate assumption.”

The West Virginia Farm Bureau and the American Farm Bureau have intervened in Alt’s case because they say it has economic implications beyond Hardy County.

Environmental and consumer groups have intervened on the EPA’s side.

The Center for Food Safety, Earthjustice, Food & Water Watch, Potomac Riverkeeper, Waterkeeper Alliance, and West Virginia Rivers Coalition also filed a motion for summary judgment Thursday.

They say neither Alt’s farm “nor the other tens of thousands of commercial farms like it across the country” should be exempt from federal water-protection laws.

“This case is not just about the Potomac River, and it is not just about one commercial poultry operation,” said Robin Broder of Potomac Riverkeeper. “The Farm Bureau wants this operation and other commercial farms like it to get a free pass from laws that protect the rivers and streams we use for recreation and for drinking water.”

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