Faced with the prospect of defeat that would change how it enforces the Clean Water Act (CWA) on animal operations, the Environmental Protection Agency (EPA) has decided to drop an appeal of a lower court decision, Alt v. EPA. While this is good news for farmer Lois Alt, it’s an unfortunate development for agriculture. The Alt case was supposed to be a major test case that would establish binding precedent on the limits of EPA’s jurisdiction under CWA. Now, in EPA’s view, the binding precedent of the Alt decision will be limited to the counties lying within the jurisdiction of the U.S. District Court for the Southern District of West Virginia.
At issue in the case was whether poultry feather and dust particles expelled by ventilation fans could be considered a point-source “discharge” under CWA if it came into contact with precipitation that eventually washed it into a “water of the U.S.” EPA argued this runoff is considered a “discharge,” meaning the farms could be subject to potentially onerous permitting requirements. Many farm groups countered the runoff of farm dust from a barnyard area is appropriately categorized as “agricultural stormwater runoff,” which is exempt from the CWA permit requirements.
EPA adopted the “dust and feathers discharge” approach after multiple unsuccessful attempts to require concentrated animal feeding operations (CAFOs) to obtain point-source permits regardless of whether they discharged. The federal courts have made it clear CWA only allows EPA to require permits for point sources that actually discharge into waters of the U.S. While CAFOs are considered point sources, they must be built to not discharge pollutants. Faced with this quandary, EPA and some state governments have sought to bring CAFOs under their jurisdiction with the “dust and feathers discharge” approach.
In Alt v. EPA, a federal judge roundly rejected the agency’s arguments, upholding that ordinary barnyard dust mixed with stormwater was properly characterized as “agricultural stormwater runoff” and not a point-source discharge.
If the agency let the lower court decision stand, then the decision would technically be limited to the southern half of West Virginia. However, if EPA lost an appeal at the Fourth Circuit, the decision would be binding for West Virginia, Maryland, Virginia, North Carolina and South Carolina. In addition, a Fourth Circuit decision would likely have substantial influence over how other courts across the country would address the “dust and feathers discharge” issue.
EPA’s eventual decision to appeal the case was a positive development for agriculture. It’s high time an appeals court weigh in on this matter. However, EPA decided to drop its appeal in September. Here’s what an EPA official had to say about the decision to drop the appeal:
“Although EPA thinks the district court decision is wrong, we also think it is time to stop spending resources on litigation about this CAFO. EPA is not going to appeal this decision; our resources are better spent
remedying more serious, ongoing pollution across the country.”
This explanation is particularly cynical. It tries to portray the Alt case as a simple dispute involving a single farm. EPA is pretending to not understand the long-reaching effect this case would have on its authority to regulate CAFOs under CWA.
By dropping the Alt case, EPA’s “dust and feather discharge” approach lives to fight another day. The agency will continue to pursue CWA enforcement actions against farms until another producer challenges this flawed theory in court. This approach, coupled with EPA’s plan to expand the definition of “waters of the U.S.,” will make future efforts to comply with CWA more onerous and uncertain.
This column is not a substitute for legal advice.