EPA: Affirm agency power to regulate farm runoff

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ELKINS, W.Va. — 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its power to make poultry growers get water pollution permits for runoff from their operations — even though it’s withdrawn the requirement for a West Virginia farmer who sued.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 stormwater 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The EPA had threatened to fine Alt for polluting streams but rescinded the violations after she sued last year.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 stormwater 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 stormwater, 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.