July 19, 2012

Do poultry farms need a Clean Water Act permit?

By Damien M. Schiff Senior Attorney

So says EPA at least.  In a lawsuit filed this June in the District of West Virginia, Lois Alt, owner of Eight is Enough poultry farm, is suing EPA over a compliance order that the agency issued to her last November.  The order contends that Ms. Alt is violating the stormwater provisions of the Clean Water Act, because ventilation fans from her chicken coops spit out dander and dust particles in the lots outside the coops, and that these materials, along with some occasional chicken droppings, are washed into a nearby ditch when it rains.  And that ditch ultimately connects with a navigable water.

The Clean Water Act requires a permit for the discharge of stormwater connected with “an industrial activity.”  EPA reasons that Ms. Alt’s chicken coops are an industrial activity, presumably because (the order isn’t clear on this point) there are a lot of chickens, machines are used to clean out the coops, and she’s making money.  In her lawsuit, Ms. Alt contains that EPA is offbase because the Clean Water Act expressly exempts agricultural stormwater discharges from the permitting requirement.  Ms. Alt further contends that EPA always in the past considered such chicken operations to be agricultural, not industrial, in nature.

This case promises to be an important precedent for the poultry industry.  I should also mention that Ms. Alt’s case was made possible because of Sackett, as the only action EPA has taken to date is the compliance order.

What to read next