District Court cries “fowl” on EPA attempt to expand CAFO permitting authority

Late last month, in a decision that should come as no surprise to those following the proceedings, the Northern District of West Virginia held that EPA lacked the authority to issue a compliance order under the Clean Water Act (CWA) to an operator of a concentrated animal feeding operation (CAFO) when precipitation picked up and delivered various pollutants emitted or tracked from poultry confinement houses to a nearby surface water.  The outcome seemed nearly inevitable at least as far back as April when the court refused to dismiss the case as moot even after EPA had withdrawn the order that had given rise to the lawsuit.

In Alt v. EPA, Civ. A. No. 2:12-CV-42 (N.D. W.Va., Order issued Oct. 23, 2013), the operator of eight poultry confinement houses in West Virginia filed a lawsuit challenging a compliance order that EPA had issued to her in November 2011.  Although the operator keeps her poultry growing operations and manure, litter and raw material storage activities under roof and implements other management practices and procedures to reduce the exposure of pollutants to precipitation, some particles of manure and litter have been tracked or spilled, and some dust comprised of manure, litter, dander and feathers have been blown by ventilation fans, from the confinement houses onto an adjacent farmyard, where stormwater has picked up the pollutants and carried them into Mudlick Run.

EPA’s compliance order found that the poultry production facility is a CAFO that “has discharged pollutants from man-made ditches via sheet flow to Mudlick Run during rain events generating runoff without having obtained an NPDES permit.”  Threatening civil and criminal sanctions, EPA ordered the operator to apply for the relevant permit.  Although the operator at first indicated that she would comply with the order, she subsequently notified EPA that she would not.  Following a candid exchange of positions and another follow-up inspection by EPA, the operator filed a lawsuit in June 2012 seeking a declaratory judgment that the compliance order was invalid because it required her to obtain an NPDES permit for discharges that she believed were exempt from that requirement.

The CWA requires point sources to obtain an NPDES permit before discharging pollutants into navigable waters.  In 1987, Congress amended the statutory definition of “point source” to expressly exempt “agricultural stormwater discharges.”  However, Congress did not define the term “agricultural stormwater discharges,” and EPA did not promulgate any regulations that provided the missing statutory definition.  The operator (as well as those permitted to intervene on her behalf) argued that the term is broad enough to encompass the precipitation-related discharges at issue in the order.  EPA, on the other hand, argued that the agricultural stormwater exemption applies only to discharges from land application areas under the control of a CAFO.

On cross-motions for summary judgment, the court sided with the operator.  The court found that, in the absence of a statutory definition, the term “agricultural stormwater discharges” should be afforded its ordinary meaning.  The court determined that “[c]ommon sense and plain English lead to the inescapable conclusion that [the] poultry operation is ‘agricultural’ in nature and that the precipitation-caused runoff from [the] farmyard is ‘stormwater.'”  The court flatly rejected EPA’s argument that the agricultural stormwater exemption applies only to discharges from land application areas, noting that the agricultural stormwater exemption existed prior to the 2003 regulations that extended the exemption to those areas.  The court also dismissed arguments that stormwater from a CAFO’s production area is not entitled to the exemption and that the discharge is industrial rather than agricultural.

In its previous order denying EPA’s motion to dismiss, the court acknowledged the existence of two other nearly identical orders that EPA had issued to poultry farmers in West Virginia and Virginia in 2010 and 2011, one just minutes before EPA issued the order challenged in the matter pending before it.  This salvo appears to represent an attempt by EPA, perhaps frustrated with the limited CAFO permitting authority extended to the agency by Congress, to expand that authority through the issuance of compliance orders.

The court did not decide whether the compliance order in the Alt case could have withstood legal challenge had EPA promulgated a regulation that defined the term “agricultural stormwater discharges” in a manner that excluded the discharges at issue here, as that particular question was not before the court.  The court did indicate that it was unwilling to defer to the agency where “EPA has not promulgated any regulations covering the topic.”  Although I am not at all certain that a regulatory definition of “agricultural stormwater discharges” that excludes the discharges at issue in this case could survive legal challenge, I am even less certain that EPA has any better options at its disposal if it still desires to expand its CAFO permitting authority.  I certainly wouldn’t “bet the farm” on any near-term legislative fix.