EPA cries ‘uncle’ in face of lawsuit, withdraws threat against W.Va. chicken farmer

The Environmental Protection Agency is backing off from a controversial lawsuit that brought farming groups out of the woodwork to defend a West Virginia farmer against charges that chicken droppings violated the Clean Water Act because rains could carry them into a stream located two football fields away.

The case mobilized agriculture organizations against what they saw as bureaucratic bullying that could impact thousands of other farmers. Green groups saw it as an opportunity to give the EPA tighter control over what they have derisively called “factory farms.”

The EPA said in November 2011 that Lois Alt and her husband needed a Clean Water Act discharge permit because rainwater on their farm could come into contact with dust, feathers or small amounts of chicken manure that strayed out of the large barns where they raise their flocks. Rainwater at Eight Is Enough Farms empties into Mudlick Run, a stream 200 yards away from the edge of the property.

The agency had warned the Alts that they could be fined up to $37,500 — per day — if they failed to apply for the permit, and another $37,500 per day if the government moved to enforce the Clean Water Act against them. But in a Dec. 13 letter, the EPA told their attorney it had withdrawn last year’s order entirely.

Alt told the agency in February that she intended to ignore the order. She sued the federal government in June, insisting that the threat was “arbitrary, capricious, not in accordance with the law, and in excess of the EPA’s jurisdiction and authority.”

The EPA’s threat was an attempt to define rainwater on livestock farms as a pollution “point source” under the Clean Water Act if it comes into contact with animal waste.

While the Clean Water Act considers animal barns themselves pollution point sources in some cases — if manure spills and seeps into rivers, lakes or streams, for instance — a sweeping 1972 amendment to the law specifically said point sources do “not include agricultural stormwater discharges.”

The government had contended that large farms like the Alts’ — their barns typically contain about 125,000 birds — don’t qualify for that exemption, except for portions of farms where cattle graze or where manure is used to fertilize crops.

The Dec. 13 about-face came six weeks before lawyers were expected to begin filing briefs in court, and signals that the EPA was not willing to defend its position before a federal judge.

The agency issued similar orders in West Virginia last year against at least three chicken and turkey farmers, however. Those cases are still pending.

“This is a personal victory for Lois Alt, but it should not have taken a federal lawsuit to convince EPA to withdraw an order that was illegal from the start,” American Farm Bureau Federation president Bob Stallman said in a statement Thursday evening.

“EPA’s withdrawal of the Alt order without correcting its legal position still leaves other farmers and ranchers hanging in uncertainty, vulnerable to the same threats that Ms. Alt faced.”

Potomac Riverkeeper, an environmental group that monitors water quality on that river, had a different take. Brent Walls, the organization’s Upper Potomac River Manager, said that the West Virgina Department of Environmental Protection “is 10 years delinquent in setting up a permitting program,” so “many farmers are up in arms over this ‘new’ federal over site.”

“It’s not new,” Walls told The Daily Caller. It “is just that WV DEP failed to implement it.”