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October 2013 Archive for Ag in the Courtroom

RSS By: John Dillard,

John Dillard grew up on a beef cattle farm and now works as an agricultural and environmental litigation attorney with OFW Law. His blog analyzes legal issues and court decisions that affect America’s farmers and ranchers.




HUGE Win for Agriculture in W.Va. Poultry Case

Oct 24, 2013

Yesterday, a West Virginia poultry farmer prevailed over EPA and environmentalist groups in a Clean Water Act case that will impact farmers and ranchers across the country. Supported by American Farm Bureau Federation and West Virginia Farm Bureau, Lois Alt, the owner of an 8-house broiler operation successfully defended herself against an EPA overreach that would have required her to obtain a Clean Water Act permit on the basis of runoff of ventilation fan exhaust from her farmyard area. Most significantly, the judge's order in this case adds teeth to the Clean Water Act's "agricultural stormwater discharge" exemption.

Specifically, Chief Judge John Preston Bailey of the District Court for the Northern District of West Virginia held that ventilation fan exhaust (dust, feathers, manure, and dander) that landed in the farmyard and ran off during precipitation events is agricultural stormwater runoff, which does not require a permit under the Clean Water Act.


The Clean Water Act prohibits the discharge of pollutants from "point sources" of pollution to navigable waters (which are loosely defined to include many wetlands and tributaries adjacent to waters that are actually navigable). Concentrated Animal Feeding Operations (CAFOs) are defined as point sources under the Clean Water Act. However, the Clean Water Act specifically exempts "agricultural stormwater runoff" from the definition of point sources of pollution.

Since 2003, EPA has attempted to require CAFOs to obtain  National Pollutant Discharge Elimination System (NPDES) permits. NPDES permits, however, are only required for point sources that discharge pollutants into navigable waters. Because CAFOs are designed to not discharge, federal courts have invalidated regulations that impose blanket requirements for all CAFOs to operate under NPDES permits. Instead, EPA can only require a CAFO to obtain an NPDES permit if there is an actual discharge from their operation.

Not one to be deterred, EPA tried a different approach - requiring CAFOs to obtain permits on the basis of poultry farm fan ventilation debris (dust, feathers, litter) that lands onto farmyards and becomes runoff during precipitation events.

Lois Alt was one such producer that was pursued by EPA. In 2011, she received a "Finding of Violation" from EPA. In this notice, EPA alleged that she was discharging pollutants without a NPDES permit because dust, feathers, and litter that exited her barns' exhaust system was washing into a tributary during precipitation events. EPA ordered her to obtain a NPDES permit, which can be onerous, or face fines of up to $37,500 per day.

Ms. Alt was apparently not fazed by EPA. She filed suit seeking a declaratory judgment that EPA was acting outside of its authority under the Clean Water Act. Recognizing the significance of the case, American Farm Bureau Federation and West Virginia Farm Bureau intervened in the suit to support Ms. Alt's position. The usual cast of characters, including Waterkeeper Alliance and Center for Food Safety later joined the case to support EPA's position. In an attempt to "moot" the case, EPA actually withdrew its finding of violation against Ms. Alt earlier this year. However, the court refused to dismiss the case on the basis that EPA was pursuing similar actions around the country.

The Arguments

Ms. Alt and the Farm Bureaus argued that the Clean Water Act's exemption for agricultural stormwater discharges applied to runoff from areas that included the farmyard (the area of grass and weeds outside the farm's production barns, manure storage, and composting areas). They asserted that only discharges from a CAFO's production area are subject to NPDES permitting requirements. Furthermore, they asserted that the farmyard was not part of a CAFO.

EPA and the environmental groups argued that the farmyard was included in the "production area" of a CAFO, and that any runoff from the production area should be deemed a discharge from the CAFO. They also alleged that because exhaust fan discharges originated from inside a CAFO, the dust, feathers, etc. laying on the farmyard was not eligible for the agricultural stormwater exemption. Furthermore, EPA asserted that the agricultural stormwater discharge exemption, in the case of CAFOs, only applied to runoff from associated crop fields that were operated in accordance with a comprehensive nutrient management plan.

The Decision

The judge ultimately sided with most of Ms. Alt and the Farm Bureaus' arguments. While the judge rejected their argument that a farm yard is not part of a CAFO, the judge agreed that a farmyard is not part of a CAFOs "production area." He limited the definition of a production area to those parts of a CAFO used for housing animals and storage of manure/litter, mortalities, and raw materials.

Finding that the Clean Water Act and EPA regulations did not contain a definition for "agricultural stormwater discharges," the judge reasoned that an agricultural stormwater discharge consisted of precipitation-caused runoff from an agricultural operation (simple enough!). Using this definition, the judge held that precipitation-caused runoff from areas other than the CAFO's production area is not a discharge from the CAFO, but instead an agricultural stormwater discharge. Because agricultural stormwater discharges are explicitly excluded from the definition of a point source, any such runoff is exempt from  NPDES permitting requirements.

The Implications

I cannot stress the importance of this case for production agriculture. While its immediate effect will most likely be felt in the poultry and swine sectors, this case has implications that carry over to other livestock sectors as well as crop producers. Dust is part of life in farming. NPDES permits allow EPA and state environmental agencies to exert more control over farming operations than many producers are willing to accept. Requiring NPDES permits on the basis of dust and other airborne particles that are incidental to production agriculture goes well beyond the original intent of the Clean Water Act.

We should be grateful to Lois Alt, as well as American Farm Bureau Federation and West Virginia Farm Bureau, for carrying this fight forward. While it is likely that EPA and the environmental intervenors will appeal this decision, for now, we have a decision that should protect farmers from EPA overreach.

You can read the opinion in the case here.

John Dillard is an attorney with Olsson Frank Weeda Terman Matz P.C. (OFW Law), a Washington, DC-based firm that serves agricultural clients and clients with issues before federal and state courts, EPA, FDA, USDA, and OSHA.  John focuses his practice on agricultural and environmental law.  He occasionally tweets at @DCAgLawyer.  This column is not a substitute for legal advice.


A Win for Agriculture in Tile Drain Case

Oct 10, 2013

Farm tile drains are not a point-source of pollution under the Clean Water Act, even if the outflows include groundwater. So said the federal judge presiding over a citizen’s suit that sought to require some farmers to obtain National Pollutant Discharge Elimination System (NPDES) permits for outflows from tile drains.

The case, Pacific Coast Federation of Fisherman’s Associations (PCFFA) v. Glaser, centered on the Clean Water Act’s exemption for tile drain outflows. The Act states that "return flows from irrigated agriculture" are not considered point sources of pollution. Point sources are required to have NPDES permits if they discharge into jurisdictional waters.

The plaintiffs in PCFFA argued that the exemption does not apply if the tile drain outflow includes components that are not the result of irrigated agriculture. Namely, the plaintiffs argued that tile drain outflows should not be exempt in areas with high water tables because these tile drains have a tendency to collect groundwater, which could be contaminated with pollutants.

The defendants, U.S. Bureau of Reclamation, argued that Congress intended a broad interpretation of the exemption for tile drains, and that it should apply to all tile drain outflows from areas that receive irrigation. This is consistent with EPA and US Army Corps of Engineers policy on tile drain outflows.

In this particular case, the plaintiffs were concerned about pollution in water downstream from irrigated cropland in the San Joaquin Valley of California. The fields in question had relatively high water tables and contained heavy metals, such as selenium. Tile drains, in general, are a valuable agricultural tool because they drain away surface water and prevent groundwater from saturating crop roots. In this particular case, the outflow contained not only surface irrigation water, but also selenium-contaminated groundwater. This mixture of irrigation water and groundwater then flowed downstream.

The judge sided with the federal government, and dismissed the plaintiffs’ case, holding that Congress intended for the exemption for return flows from irrigated agriculture to apply broadly to exempt outflows from farms that use irrigation instead of "focusing on what the components of a particular flow are on any given day." Although the judge dismissed the plaintiffs' case, she did allow the plaintiffs to file an amended complaint. This means that this is not the last we have heard from in this case.

This decision is, at least for the time being, a positive result for production agriculture because it confirms the proposition that owners of agricultural tile drain systems are not required to obtain an NPDES permit under the federal Clean Water Act. If the court held otherwise, untold thousands of farms would be required to obtain and comply with NPDES permits – a costly and onerous proposition.

The judge dismissed this case a little over a year after she had initially denied the federal government’s motion to dismiss. In her initial decision, the judge did not order dismissal on the basis that the plaintiff’s may have had a valid claim. We should be happy that she did not buy the activists’ arguments this time around.

The plaintiffs have submitted an amended complaint in this matter. There will surely be more fireworks as this dispute continues.


John Dillard is an attorney with Olsson Frank Weeda Terman Matz P.C. (OFW Law), a Washington, DC-based firm that serves agricultural clients and clients with issues before federal and state courts, EPA, FDA, USDA, and OSHA.  John focuses his practice on agricultural and environmental law.  He occasionally tweets at @DCAgLawyer.  This column is not a substitute for legal advice.

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