Facing Likely Defeat, EPA Abandons Farm Case in West Virginia

The U.S. Environmental Protection Agency’s decision not to appeal a key federal ruling in favor of West Virginia farmer Lois Alt highlights the cynicism that drives the agency’s water agenda, the American Farm Bureau Federation said on Sept. 22.

The U.S. Court for the Northern District of West Virginia ruled against the EPA and in favor of Alt in October 2013, rejecting the agency’s contention that the Clean Water Act regulates ordinary stormwater runoff from non-production areas of large livestock or poultry farms.

Since no federal court had ever addressed the question of stormwater runoff from farms such as Alt’s, the lower court’s ruling carries implications for tens of thousands of poultry and livestock farms nationwide. An appellate court decision upholding that ruling would make it even harder for the EPA to persist in imposing wide-scale federal permitting requirements on large animal farms. The agency’s voluntary dismissal of its appeal signals a desire to avoid a likely loss.

“EPA knows its effort to regulate perfectly well-run farms cannot withstand legal scrutiny, and the agency doesn’t quite know how to deal with that,” said AFBF President Bob Stallman. “Apparently the agency would rather move on and continue pursuing its regulatory agenda farm to farm but not defend it in court.”

Both AFBF and the West Virginia Farm Bureau joined the suit on the side of Alt.

Stallman called the agency’s move “cynical and cowardly” and said Alt “should be proud of her environmental stewardship and her courage in standing up to EPA. She won an important court victory that will benefit many others, and we are proud to have supported her efforts.”

The EPA’s dispute with Alt began when the agency issued an order threatening her with $37,500 in fines per day unless she applied for a Clean Water Act permit for stormwater runoff from a non-production area of her farm. The agency cited no deficiencies in Alt’s farming practices but contended that stormwater containing even miniscule amounts of manure triggered Clean Water Act liability and permitting obligations.

Alt responded with a lawsuit challenging the order. Her complaint cited the long-standing Clean Water Act exemption of “agricultural stormwater discharges.” The EPA first attempted to back away from the fight about six months after Alt filed suit and just weeks before briefing was to begin. The agency withdrew its order and asked the court to dismiss the suit. The court refused, finding that EPA had not changed its legal position and that the Farm Bureau groups had an ongoing interest in resolving the validity of that position.