Eight Is Enough: EPA’s Dust and Feathers Discharge Argument Goes Down the Drain

By Stewart D. Fried and John G. Dillard

In a decision with broad implications for production agriculture, a West Virginia federal judge concluded that Clean Water Act (CWA) permits are not required solely on the basis of dust, feathers and chicken litter from poultry barns that are washed from a farmyard to river and streams by rainfall.

In Lois Alt, d/b/a Eight Is Enough v. EPA¸ the District Court concluded that stormwater runoff containing dust, feather, manure/litter, and dander particles discharged from Alt’s poultry house exhaust fans that landed outside the production area were agricultural stormwater discharges exempt from CWA permit requirements.  The decision was yet another setback for EPA’s lengthy efforts to require Concentrated Animal Feeding Operations (CAFOs) to obtain National Pollutant Discharge Elimination System (NPDES) permits despite the absence of discharges of pollutants from chicken and hog barns into navigable waters.

EPA’s Efforts to Regulate Discharges from Alt’s Poultry Houses

The CWA generally prohibits the discharge of pollutants from “point sources” to “waters of the United States.”  Pursuant to EPA regulations and guidance, “waters of the United States” include non-navigable rivers, streams and tributaries, as well as adjacent wetlands. While CAFOs are deemed point sources under the CWA, Congress specifically exempted “agricultural stormwater discharges” from the definition of “point sources” of pollution. 33 U.S.C. §1362(14).

For over a decade, EPA has attempted to require CAFOs to obtain NPDES permits.  However, because permits are only required for point sources that discharge pollutants and because CAFOs are generally designed to not discharge pollutants, federal courts have twice invalidated EPA regulations that sought to impose broad permitting requirements on CAFOs. See Waterkeepers Alliance, Inc. v. EPA, 399 F.3d 486 (2nd Cir. 2005) and National Pork Producers Council v EPA, 635 F.3d 738 (5th Cir. 2011).  As a result of these circuit court decisions, EPA may only seek to require a CAFO to obtain an NPDES permit following “actual discharges” from their operations.

During 2011, EPA issued an Administrative Compliance Order (ACO) to Lois Alt, the owner of an eight-house broiler operation in West Virginia.  In its ACO, EPA determined that Alt violated the CWA by discharging pollutants without a permit, and sought to compel her to obtain a NPDES permit or face civil penalties of to $37,500 per day and criminal proceedings. Rather than apply for a permit and facing possible imprisonment, Lois filed suit in federal court in one of the first post-Sackett challenges to an ACO, seeking a declaration that EPA exceeded its authority in determining that she violated the CWA.  American Farm Bureau Federation and West Virginia Farm Bureau intervened on Alt’s side; Waterkeeper Alliance and Center for Food Safety did so in support of EPA’s position.  EPA, appearing to recognize the significance of an adverse judicial decision, attempted to “moot” the case by withdrawing the ACO against Alt.  However, based upon EPA’s prosecution of other farmers around the country on similar grounds, the District Court declined to dismiss the case.

Poultry House Discharges Washed Away By Rainfall Are Exempt from NPDES Permit Requirements

Alt, aided by the Farm Bureaus, argued that the agricultural stormwater exemption applied to runoff from the “farmyard” — areas outside a farm’s production barns, manure storage, and composting areas.  Alt asserted that only discharges from a CAFO’s production area are subject to NPDES permitting requirements and that a farmyard was not part of a CAFO.

Not surprisingly, EPA and the environmental groups contended that the farmyard was within the “production area” of a CAFO and that any runoff from the production area should be deemed a discharge from the CAFO.  EPA also argued that the agricultural stormwater exemption only applied to runoff from a CAFO’s associated crop fields that were operated in accordance with a comprehensive nutrient management plan and that dust, feathers and other exhaust fan discharges that landed on a farmyard were ineligible for the exemption.

Although the Court rejected Alt’s argument that a farmyard is not part of a CAFO, Chief Judge John Preston Bailey concluded that a CAFO’s “production areas” are limited to those used for housing animals and the storage of manure/litter, mortalities and raw materials.   Chief Judge Bailey also determined that because no definition for “agricultural stormwater discharge” is contained in the CWA or EPA’s regulations, its “ordinary meaning” should apply.  The dust, feathers and litter discharged from Alt’s operations were indisputably agricultural in nature and would have remained in place but for the precipitation event which conveyed stormwater (which included the discharged materials) to a watercourse subject to federal jurisdiction.  Based thereon, the Court concluded that runoff from areas outside of a facility’s production area is an agricultural stormwater discharge, which is exempt from NPDES permitting requirements.

The District Court’s ruling, if upheld on appeal, presents yet another setback for EPA in its continuing efforts to require production agriculture facilities to obtain NPDES permits.  While immediate effects of the decision should benefit the poultry and swine industries, other livestock sectors will likely benefit.  Crop producers may as well given that the elimination of dust in agricultural production is virtually impossible. Although EPA and state environmental agencies have long sought to exert greater control over farming operations, requiring poultry and other livestock producers to obtain NPDES permits based on emissions of dust and other airborne particles incidental to production agriculture goes well beyond the original intent of Congress in enacting the Clean Water Act.

A copy of the October 23, 2013, opinion in Lois Alt v. EPA, Civil Action No. 2:12-CV-42 (N.D. W. Va.) is available here.