West Virginia chicken farmer fights EPA over storm water issue

Most farmers hope for rain during a dry season. But West Virginia poultry farmer Lois Alt found herself wishing for anything but as she became embroiled in a court battle with the U.S. Environmental Protection Agency (EPA) over a storm water permit.

In June 2012, Alt—a 61-year-old grandmother—was contacted by the EPA and told that she would need to obtain a Clean Water Act discharge permit for storm water for her family poultry farm, which consists of eight poultry houses and about 200,000 broilers. The EPA claimed that the farm was a Concentrated Animal Feed Operation (CAFO) and should be regulated as a source of pollution. Thus, agricultural storm water runoff from the farm should be treated as "process wastewater," the agency claimed.

The EPA'a compliance guide for CAFO operations defines process wastewater as "water used directly or indirectly in the operation of an animal feeding operation for any or all of the following: spillage or overflow from animal or poultry watering systems; washing, cleaning or flushing pens, barns, manure pits and other facilities; direct contact swimming, washing or spray cooling of animals; and dust control."

In this case, the EPA believes that dust in the chicken houses can contain trace amounts of manure and other pollutants that can lead to hazardous runoff when it rains.

When Alt refused to pay for the permit and challenged the EPA's order, the agency threatened to charge penalties of as much as $37,500 every time it rained, as well as an additional $37,500 for every day that she did not secure a permit.

"Nobody could tell me anything that I could do differently," Alt told The Bay Journal. "They just said, 'get this paper.' Well, what's this paper going to do to protect the stream? I do enough paperwork as it is."

She filed a lawsuit soon after. 

On October 23, 2013, the U.S. District Court for the Northern District of West Virginia ruled in favor of Alt. Though the EPA had actually attempted to withdraw their order, the case proceeded because the court felt that it had the potential to clarify the Clean Water Act, according to a case summary. The court found that the small amount of dust and manure that would be carried by storm water did not qualify it as waste.

Still, this battle is not over. In January, the EPA indicated that it would be appealing the ruling in the Court of Appeals for the Fourth Circuit.

It is likely that the final outcome of this case will have a significant impact on how the EPA goes about interpreting the Clean Water Act and other federal environmental laws in the future. It is important for operations that must comply with these rules to follow the proceedings closely, and to work with environmental consultants to avoid potential liabilities of their own.