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Farmyard is Not Part of a CAFO

November 9, 2013
By: John Dillard, Farm Journal Columnist
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Recent federal judge ruling is a big win for farmers and ranchers

On Oct. 23, a federal judge ruled that a West Virginia poultry farmer was not required to obtain a Clean Water Act permit solely on the basis of storm water runoff from the farmyard that included dust, feather and litter particles released from the poultry barn ventilation fans.

This case, which impacts thousands of farmers and ranchers, represents the latest setback for the Envir­­on­mental Protection Agency (EPA) and its efforts to require concentrated animal feeding operations (CAFOs) to obtain National Pol­lu­tant Discharge Eli­m­ination System (NPDES) permits.

Since 2003, EPA has unsuccessfully sought to require all CAFO operators to obtain NPDES permits on the basis that CAFOs have the potential to discharge pollutants into waterways. Federal courts have invalidated these efforts to impose blanket NPDES permitting requirements. The courts made it clear that CAFOs are not subject to NPDES permitting require­ments unless they actually discharge pollutants into "waters of the U.S."

Push back. EPA has adapted by seeking enforcement actions against individual farms on the basis of runoff of ventilation fan dust that is washed away during precipitation events.

One such farmer that EPA pursued is Lois Alt. EPA alleged that storm water runoff from her farmyard area to a nearby tributary constituted a discharge, and thus, she was required to obtain a NPDES permit. Upon receiving an administrative complaint, she sued EPA in federal court seeking a declaratory judgment on the basis that EPA was overreaching its authority. Recognizing the national importance of this case, American Farm Bureau Federation and West Virginia Farm Bureau supported Alt’s suit.

Alt and Farm Bureau argued that the Clean Water Act’s agricultural storm water exemption applied to runoff from the farmyard and that only discharges from the CAFO’s production area are subject to NPDES permitting requirements.

EPA and a group of environmental inter­venors argued the area around barns is in a CAFO’s production area, and that any runoff from that area should be deemed as a CAFO discharge. They said that the exemption for agricultural storm water discharges did not apply in this case.

The judge ultimately sided with Alt and upheld that a farmyard is not part of a CAFO’s production area. Further, the judge reasoned that precipitation-caused runoff from outside the CAFO’s production area is an agricultural storm water discharge, which does not require a NPDES permit.

This decision, if upheld on appeal, is a huge victory for agriculture. Its interpretation of the "agricultural storm water discharge" exemption should provide other farmers relief against EPA overreach in the future. 

You can e-mail John Dillard at jdillard@farmjournal.com.

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FEATURED IN: Farm Journal - Mid-November 2013

 
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