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

David Martosko Executive Editor
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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 But in a Dec. 13 letter, the EPA told their attorney it had withdrawn last year’s order entirely.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.”

The EPA has issued at least two other rules in the last decade designed to force large livestock farms to apply for Clean Water Act pollution permits. Both were struck down in court.

The first, in 2003, was an EPA permit requirement for animal farms that have a “potential to discharge” pollutants into public waterways. The Second Circuit Court of Appeals invalidated that rule in 2005, saying the government couldn’t penalize a farmer for what might happen in the future.

Three years later the EPA revised the wording, saying it would require Clean Water Act permits for farms that “proposed to discharge” polluter wastewater. The Fifth Circuit Court of Appeals ruled against that language last year in a case brought by the National Pork Producers.

Alt’s legal challenge was made possible after the Supreme Court handed down a unanimous decision in March, ruling that an Idaho couple could sue the EPA over a separate Clean Water Act permitting order. (RELATED: High court sides with Idaho property owners’ property right over EPA)

In that case, the agency had sought to fine Mike and Chantell Sackett $37,500 per day for pouring landfill, without a federal government permit, into a portion of the property they had purchased to build their dream home — a parcel of land the EPA contended was a “wetland.”

A federal appeals court had sided with the EPA, telling the Sacketts they couldn’t challenge the government in court until after a lengthy permitting process that would have given the agency the upper hand. But the Supreme Court overturned that ruling in a 9-0 decision that property rights advocates saw as a slap against overzealous and punitive EPA enforcement.

“The EPA used bullying and threats of terrifying fines,” Mike Sackett said after the March ruling, “and has made our life hell for the past five years. It said we could not go to court and challenge their bogus claim that our small lot had ‘wetlands’ on it.”

In a concurring opinion, Justice Samuel Alito wrote that if the EPA had prevailed, it “would have put the property rights of ordinary Americans entirely at the mercy” of the government.

This month the Potomac Riverkeeper, the West Virginia Rivers Coalition and the national Waterkeeper Alliance asked a federal judge for permission to join the EPA in defending against Alt’s lawsuit, along with an anti-technology group called the Center for Food Safety and an offshoot of Ralph Nader’s Public Citizen organization called Food and Water Watch.

The Waterkeeper Alliance, the Center for Food Safety, Food and Water Watch and the EPA did not immediately respond Friday morning to TheDC’s requests for comment.

The green groups’ petition came after a judge said the American Farm Bureau Federation and the West Virginia Farm Bureau could intervene and join the lawsuit on the side of the chicken farm.

West Virginia Farm Bureau public relations director Joan Harman said Friday that she was “pleased with the decision,” but cautioned that it only applied to the Alts’ farm. “[T]he  EPA has not changed its legal position,” Harman told TheDC, “and therefore West Virginia Farm Bureau believes other farmers are still left in jeopardy of being  subjected to this same harassment.”

West Virginia Rivers Coalition executive director Angie Rosser told TheDC that she still believes the Eight Is Enough farm is a Clean Water Act polluter. “We expect Lois Alt to take corrective action to stop these pollution discharges,” she told TheDC, “and that all farmers in West Virginia will recognize and act on their responsibility to keep our water safe and clean to the highest standard.”

Waterkeeper Alliance Executive Director Marc Yaggi warned Dec. 7 that a defeat for the EPA would “roll back core Clean Water Act protections that safeguard human health and the environment.”

But the American Farm Bureau Federation said in June that the EPA was using enforcement orders against farmers as a way of “side-stepping the court rulings they have already lost.”

“They are using the dust and feather issue as a means to expand their authority,” Farm Bureau regulatory expert Dan Parrish told Agfax, a farming news service. “There has been no [pollution] discharge.”

In its letter to the Alts, the EPA said it was only withdrawing its enforcement order because it had re-inspected the farm and no longer found it necessary. But American Farm Bureau Federation general counsel Ellen Steen isn’t buying it.

“I can’t help but notice that EPA only withdrew the order after Farm Bureau was granted intervention in October,” Steen said in a statement. “It’s like upsetting the chess board when you know you are in danger of losing.”

This story was updated after publication to include comments from the West Virginia Farm Bureau, the Potomac Riverkeeper and the West Virginia Rivers Coalition.

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