ELKINS, W.Va. — The U.S. Environmental Protection Agency wants a judge to dismiss a West Virginia chicken grower’s lawsuit over water-pollution orders the agency issued against her then withdrew in December, arguing the case is now moot.
But court filings show Eight is Enough farm operator Lois Alt plans to join the West Virginia and American Farm Bureaus in trying to keep the case alive. They contend the underlying issues still need to be heard in court because they could potentially affect poultry growers nationwide, requiring them to seek discharge permits under the Clean Water Act that they don’t all currently need.
In a motion to dismiss last week, the EPA told U.S. District Judge John Preston Bailey the legal issues Alt had raised are now moot, and that an actual controversy must exist at every stage in the litigation for it to survive.
“To proceed to address the legal issues raised in the complaint here, such as the proper interpretation of the CWA and its implementing regulations … would result in an impermissible ‘advisory opinion on abstract propositions of law,'” U.S. Attorney William Ihlenfeld wrote on behalf of the EPA.
Ihlenfeld said other interveners in the case, including Potomac Riverkeeper, the West Virginia Rivers Coalition and Food & Water Watch, have indicated they don’t oppose the government’s motion to dismiss. However, he said, Alt and the bureaus do plan to oppose it.
The EPA designated Alt’s farm a concentrated animal feeding operation, which would require her to seek a permit to pollute the waters in Hardy County. It ruled that dust, feathers and fine particles of dander and manure 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.
Bailey has given the parties until March 30 to formally respond.