October 13, 2014

EPA & enviros decide that suit against poultry farmer is for the birds

By Jonathan Wood Attorney

As we reported last month, the EPA has abandoned its case against a West Virginia poultry farmer for alleged violations of the Clean Water Act. Last week, environmental groups followed suit, ending the case.

The case began when the poultry farmer, Lois Alt, received a compliance order accusing her of violating the Clean Water Act because of runoff from her chicken coops, and threatening her with $75,000 a day in fines if she didn’t comply with EPA’s orders. Relying on PLF’s Supreme Court victory in Sackett, Alt sued, arguing that the compliance order is illegal because there is an express exemption for “agricultural” stormwater runoff. Once challenged, EPA backed down and tried to end the suit by withdrawing the compliance order. But, knowing that EPA could issue a new compliance order at any time, Alt continued and, last year, the trial court ruled in Alt’s favor, holding that the agricultural stormwater exemption applies to poultry farms.

Although EPA’s decided to abandon the appeal, it’s made clear that it has no intention of following the ruling.

In a Sept. 19 blog post, Cynthia Giles, assistant administrator for the EPA’s Office of Enforcement and Compliance Assurance, called Bailey’s decision “overly broad” but said the agency decided not to pursue its appeal. “Although EPA thinks that the district court decision is wrong, we also think that it is time to stop spending resources on litigation about this CAFO (concentrated animal feeding operation),” she wrote. “EPA is not going to appeal this decision; our resources are better spent remedying more serious, ongoing pollution across the country.” However, Giles said the agency stands by its position that when CAFOs discharge pollutants from the production area into waters — as Alt’s farm did, she noted — the law requires permit authorization.

“One district court decision does not change either the law across the country or EPA’s commitment to protecting water quality.” When pressed about its decision to not pursue the Alt case any further — and asked if it had a strong enough case to appeal — the agency would only say that it was “time to stop spending resources on litigation about the Alt CAFO.”

Although it’s disappointing that EPA says it will continue to push the boundaries of its authority, its attitude demonstrates the importance of the Sackett decision. This is not the first time that EPA has backed down when its aggrandizement is challenged. Last year, PLF challenged a compliance order against a New Mexico homeowner who ran afoul of EPA bureaucrats when he removed trash and debris from a dry ditch near his desert home. Bizarrely, EPA contended that this dry, desert arroyo is a “water of the United States.” Shortly after PLF filed the challenge, EPA withdrew the order. This pattern makes you wonder, what was EPA getting away with before its decisions could be challenged in court?

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