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Federal District Court Rules that Stormwater Runoff from Chicken Farm Is Exempt from NPDES Permit Requirement

11.22.2013

The U.S. District Court for the Northern District of West Virginia has ruled that stormwater runoff from a poultry farm is exempt from the requirement to obtain a Clean Water Act (CWA) National Pollutant Discharge Elimination System (NPDES) permit.  In its decision issued October 23 in a case styled Alt v. EPA, Case No. 2:12-cv-00042, the court found that litter and manure washed from the farmyard into navigable waters as a result of precipitation was an “agricultural stormwater discharge.”  Such discharges are exempt from the CWA’s NPDES permit requirement.

The Alt case originated out of an EPA inspection of a West Virginia poultry farm.  Following the inspection, EPA determined that stormwater carried manure and litter from the farmyard into a navigable water of the United States, thus creating a point source discharge requiring an NPDES permit.  In light of this determination, EPA issued an enforcement order requiring the farm’s owner to obtain an NPDES permit. The farm owner challenged the enforcement order in federal court, arguing that the stormwater discharges were not “point sources” as defined in the CWA.  Under the CWA, only “point source” discharges are required to obtain an NPDES permit.  The CWA’s definition of “point source” specifically excludes “agricultural stormwater discharges.”

In the federal court case, EPA advanced three primary arguments.  First, the agency argued that the case was moot because it had withdrawn the enforcement order.  The court rejected this argument in a preliminary order entered in April, noting that all of the parties to the case needed a ruling on the scope of the agricultural stormwater exemption.  On the merits of its claim, EPA argued that because the stormwater discharges originated from a concentrated animal feeding operation (CAFO), a permit was required, because the CWA’s definition of point source expressly includes discharges from CAFOs.  EPA also argued that the discharges were “industrial” and not “agricultural” and therefore the agricultural stormwater exception to the definition of “point source” did not apply.  The court rejected both of these arguments.

The court first held that the exemption for agricultural stormwater discharges applies to all stormwater-related discharges from agricultural facilities, even CAFOs.  Moreover, the court held that the discharges originated from the farmyard portion of the farm, and not the “production area,” which is the portion of a CAFO subject to NPDES permitting requirements. Next, the court held that under a common sense reading of the term “agricultural,” discharges from a poultry farm were agricultural and not industrial.  Thus, the court declared that “litter and manure which is washed from the Alt farmyard to navigable waters by a precipitation event is an agricultural stormwater discharge and therefore not a point source discharge, thereby rendering it exempt from the NPDES permit requirement of the Clean Water Act.”

The decision in Alt is a major victory for agricultural groups and farmers, who had been closely watching the case to determine the scope of NPDES permitting requirements at agricultural operations.  At the time of this article, it has not been determined whether EPA or environmental interest groups that intervened in the Alt case will pursue an appeal of the district court’s ruling.


To view a complete PDF of the September/October 2013 issue of the Environmental Letter, click HERE.

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