EPA Appeals Successful Challenge to a Pre-Enforcement Clean Water Act (CWA) Order; Federal District Court Upholds Agricultural Stormwater Exemption for West Virginia Poultry Concentrated Animal Feeding Operation (CAFO)

The National Law Review ...In October 2013, the U.S. District Court for the Northern District of West Virginia held that rainwater containing some particles of manure, litter, dander and feathers from the farmyard of a poultry operation was exempt from federal Clean Water Act (CWA) regulation as "agricultural stormwater."  Alt v. U.S. Environmental Protection Agency, Civil Action No. 2:12-CV-42 (N.D. W. Va., Oct. 23, 2013).   In late December 2013, EPA and several environmental groups filed an appeal of the district court's decision to the U.S. Court of Appeals for the Fourth Circuit.  The Fourth Circuit's review of Alt v. EPA will be closely watched by environmental and agricultural groups alike.  Because the district court's decision applied the agricultural stormwater runoff exemption to stormwater discharges from a farmyard, not just a land application area, the Fourth Circuit will play an important role in reviewing the scope of the CWA and EPA's permitting authority.

Alt's Operation and EPA Enforcement

The plaintiff, Lois Alt, operates a poultry concentrated animal feeding operation (CAFO) in West Virginia that consists of eight poultry confinement houses equipped with ventilation fans, a litter storage shed, compost shed and feed storage bins.  All operations are under roof.  According to the administrative record, some particles of manure and litter from the operation had been tracked or spilled in Alt's farmyard and some dust composed of manure, litter and dander, as well as some feathers, had been blown by the ventilation fans from the confinement houses into Alt's farmyard where they settled on the ground.  Alt utilized certain management procedures to reduce the amount of manure and litter that could be exposed to precipitation in the farmyard. 

In November 2011, EPA issued an enforcement order alleging that Alt had violated the CWA by operating a CAFO without a National Pollutant Discharge Elimination System (NPDES) permit.  EPA alleged that Alt's poultry operation had "discharged pollutants from man-made ditches via sheet flow to Mudlick Run [a stream on Alt's property that eventually connects with the south branch of the Potomac River] during rain events generating runoff without having a NPDES permit."  Id. at 5.  EPA concluded that Alt was in violation of the CWA as a matter of law. 

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