November 11, 2013

Thanks to Sackett victory, poultry farmer scores win against EPA

By Jonathan Wood Attorney

As we reported last year, the Environmental Protection Agency tried to intimidate a poultry farmer with a compliance order, and the accompanying threats of $75,000 per day in fines, for rain runoff from around her chicken coops. Relying on PLF’s Supreme Court victory in Sackett, she sued the EPA arguing that the compliance order was illegal. The Clean Water Act expressly exempts storm water runoff related to agriculture from permitting. Therefore, Mrs. Alt, the poultry farmer, argued that the EPA had no authority to issue a compliance order to her.

More than a year after it issued the compliance order, and after Mrs. Alt sued, the EPA admitted that it was wrong and withdrew the compliance order. But that wasn’t the end of her saga. She argued that the case should be allowed to go forward anyway because EPA’s actions threatened the entire ag community. If the legality of orders like that issued to Mrs. Alt wasn’t scrutinized, poultry farmers like her would be perpetually at risk of abuse.

Not only did the court allow her case to proceed, but last month she won! The court, unsurprisingly, concluded that the agricultural storm water runoff exemption applies to storm water runoff from poultry farms because they’re “agricultural.”

The government and the environmentalists involved on its side have until the end of the year to decide whether to appeal.

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Sackett v. Environmental Protection Agency

Chantell and Michael Sackett received a local permit to build a modest three-bedroom home on a half-acre lot in an existing, partially built-out residential subdivision in Priest Lake, Idaho. The home poses no threat to water quality but federal EPA regulators nonetheless declared their property to contain a wetland and demanded they stop all work and restore the lot to its natural condition or pay fines of up to $75,000 per day. When they sued to challenge this order, EPA asserted they had no right to judicial review. The district court and Ninth Circuit Court of Appeals agreed, and tossed their lawsuit out of court. The United States Supreme Court unanimously reversed, ruling that failure to allow the lawsuit violated the Sacketts’ constitutional due process rights. They are now litigating their claims in federal district court in Idaho.

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