January 31, 2023

Volume XIII, Number 31


January 30, 2023

Subscribe to Latest Legal News and Analysis

EPA Appeals Successful Challenge to a Pre-Enforcement Clean Water Act (CWA) Order; Federal District Court Upholds Agricultural Stormwater Exemption for West Virginia Poultry Concentrated Animal Feeding Operation (CAFO)

In October 2013, the U.S. District Court for the Northern District of West Virginia held that rainwater containing some particles of manure, litter, dander and feathers from the farmyard of a poultry operation was exempt from federal Clean Water Act (CWA) regulation as “agricultural stormwater.”  Alt v. U.S. Environmental Protection Agency, Civil Action No. 2:12-CV-42 (N.D. W. Va., Oct. 23, 2013).   In late December 2013, EPA and several environmental groups filed an appeal of the district court’s decision to the U.S. Court of Appeals for the Fourth Circuit.  The Fourth Circuit’s review of Alt v. EPA will be closely watched by environmental and agricultural groups alike.  Because the district court’s decision applied the agricultural stormwater runoff exemption to stormwater discharges from a farmyard, not just a land application area, the Fourth Circuit will play an important role in reviewing the scope of the CWA and EPA’s permitting authority.

Alt’s Operation and EPA Enforcement

The plaintiff, Lois Alt, operates a poultry concentrated animal feeding operation (CAFO) in West Virginia that consists of eight poultry confinement houses equipped with ventilation fans, a litter storage shed, compost shed and feed storage bins.  All operations are under roof.  According to the administrative record, some particles of manure and litter from the operation had been tracked or spilled in Alt’s farmyard and some dust composed of manure, litter and dander, as well as some feathers, had been blown by the ventilation fans from the confinement houses into Alt’s farmyard where they settled on the ground.  Alt utilized certain management procedures to reduce the amount of manure and litter that could be exposed to precipitation in the farmyard. 

In November 2011, EPA issued an enforcement order alleging that Alt had violated the CWA by operating a CAFO without a National Pollutant Discharge Elimination System (NPDES) permit.  EPA alleged that Alt’s poultry operation had “discharged pollutants from man-made ditches via sheet flow to Mudlick Run [a stream on Alt’s property that eventually connects with the south branch of the Potomac River] during rain events generating runoff without having a NPDES permit.”  Id. at 5.  EPA concluded that Alt was in violation of the CWA as a matter of law. 

Alt’s Lawsuit, Reliance on Supreme Court’s Sackett Decision and EPA’s Withdrawal of Enforcement Order

Alt filed suit in the U.S. District Court for the Northern District of West Virginia challenging EPA’s enforcement order based on the U.S. Supreme Court’s 2012 Sackett v. EPA decision.  In Sackett, the Supreme Court allowed pre-enforcement judicial review of enforcement orders issued by EPA pursuant to the CWA.  Sackett v. EPA, 132 S. Ct. 1367 (2012).  The Sackett decision allowed a plaintiff to challenge in court EPA’s authority to issue a compliance order when the compliance order is issued.  Before Sackett, a plaintiff would have been forced to comply with the enforcement order or not comply with the enforcement order, wait for EPA to enforce the order while taking the risk of being fined for each day out of compliance, and then file a judicial challenge after EPA had taken steps to enforce the order. Here, Alt relied on Sackett’s authority to be proactive by challenging EPA’s authority to require a NPDES permit, before waiting for EPA to enforce its order against the operation. Plaintiff-intervenors, the American Farm Bureau and West Virginia Farm Bureau, joined with Alt in the suit and five environmental groups intervened on EPA’s behalf. 

After Alt filed suit, EPA withdrew the enforcement order, claiming that Alt had taken certain steps to remedy environmental harm and sought to dismiss Alt’s suit as moot.  Alt opposed EPA’s motion to dismiss on the basis that EPA had left open the possibility of reissuing the enforcement order against Alt if there was a significant change in the operations and EPA had not changed its position that stormwater contacting manure in the farmyard did not constitute agricultural stormwater exempt from NDPES permitting requirements. The court denied EPA’s motion to dismiss and allowed Alt to challenge EPA’s legal assertions regarding the extent of the agricultural stormwater exemption.  See Alt. v. EPA, No. 2:12-CV-42 (N.D. W. Va. Apr. 22, 2013).  Alt and the plaintiff-intervenors sought a declaratory judgment that any precipitation related discharges containing manure and litter emanating from Alt’s farmyard were exempt agricultural stormwater discharges.

Federal District Court Grants Summary Judgment to Alt; Upholds Agricultural Stormwater Exemption

The district court framed the central issue in the case as “whether the litter found on Alt’s farmyard that could be picked up by rainwater, washed two hundred yards across a grassy cow pasture, and discharged into a creek [Mudlick Run] was exempt from liability under the agricultural stormwater exemption to the definition of a point source under the CWA.”  Id. at 7.  The court reviewed the CWA’s legislative history, and its exemption of “agricultural stormwater runoff” from the definition of a point source.  See 40 CFR § 122.2.

The term “agricultural stormwater” has not been defined in the CWA.  In EPA’s 2003 CAFO rule, the definition of exempt “agricultural stormwater” was expanded to include land application discharges, if the land application met site-specific nutrient management practices.  The 2003 CAFO rule was challenged in Waterkeeper Alliance Inc. v. EPA, 399 F.3d 486 (2d Cir. 2005) and the Second Circuit upheld EPA’s exclusion of agricultural stormwater discharges resulting from land application, from designation as a point source under the CWA.  Id. at 507-09. 

EPA’s position has been that the agricultural stormwater exemption “applies only to precipitation-related discharges from land application areas … where application of manure, litter, or process wastewater is in accordance with appropriate nutrient management practices and not to discharges from the CAFO production area.”  Id. at 15.

Because EPA’s regulations only defined “agricultural stormwater” discharges in the context of land applications – not within the context of CAFO farmyard runoff – the district court did not give deference to EPA’s land application regulations and relied on statutory interpretation to determine whether the discharges at issue here met the definition of “agricultural stormwater” discharges.  According to the court, “[c]ommon sense and plain English lead to the inescapable conclusion that Ms. Alt’s poultry operation is ‘agricultural’ in nature and that the precipitation-caused runoff from her farmyard is ‘stormwater.’”  Id. at 18.  As a result, the court concluded that there was more to the agricultural stormwater exemption than set forth in the 2003 land application area regulations and the stormwater discharges from Alt’s farmyard qualified as exempt “agricultural stormwater discharges.”

Besides EPA’s argument that the land application area regulations are the exclusive source of the agricultural stormwater exemption and that the agency should receive deference, EPA also asserted that stormwater from a CAFO’s production area does not qualify for the exemption and that Alt’s discharge was industrial in nature, not agricultural.  Id. at 21.  The district court dismissed both arguments.  The court held that Alt’s “farmyard” was not a “production area” because the area at issue (between the poultry houses) was not the “animal confinement area, the manure storage area, the raw materials storage area, or a waste containment area.”  Id. at 22-23 (40 C.F.R. § 122.23(b)(8) (“production area”)). Although the definition of “production area” goes on to include but not be limited to “open lots, … cowyards, barnyards…” the court noted that all of the described areas are areas where animals may be kept or raised.  Id. at 23.  Because Alt’s farmyard is not an area where animals are confined, the court held it was not a production area.  Id.  The court found its interpretation to be consistent with EPA’s “longstanding interpretation that the agricultural stormwater exemption is inapplicable to runoff from within a confinement area, manure storage area, and similar features deemed to be the CAFO ‘production area.’”  Id. Moreover, Alt indicates that it is for this reason that she and “thousands of farmers like her not only keep their animals under roof, but also maintain covered structures for manure storage, composting, and similar activities.”  Id. at 23-24. 

Because stormwater discharges from Alt’s farmyard meet the definition of “agricultural stormwater exemptions” they are exempt from the CWA definition of a point source and are exempt from any NPDES permitting requirements, including industrial stormwater permitting requirements.  Id. at 25.

Significance of the District Court’s Decision

The district court addressed, for the first time since the U.S. Supreme Court’s Sackett decision, whether EPA can avoid pre-enforcement judicial challenges by simply withdrawing the enforcement order upon which the judicial challenge is based.  The Alt court held that EPA’s withdrawal of the enforcement order did not prevent Alt from pursuing her judicial challenge.  As for the agricultural stormwater exemption, the Alt court strengthened the exemption by clearly applying it to discharges from a farmyard and not limiting the exemption to land application areas in accordance with appropriate nutrient management practices.  

As previously noted, EPA and its related intervenors (Center for Food Safety, Potomac Riverkeeper, Waterkeeper Alliance, Inc., West Virginia Rivers Coalition and Food & Water Watch) have appealed the district court’s decision to the Fourth Circuit.  Look for the scope of the agricultural stormwater exemption to continue to play out this year as both sides have significant interest in how the Fourth Circuit will review the district court’s decision. 

©2023 MICHAEL BEST & FRIEDRICH LLPNational Law Review, Volume IV, Number 53

About this Author

Leah Hurgten Ziemba, Michael Best Law Firm, Agribusiness and Energy Attorney
Partner, Industry Group Chair

Leah takes a big-picture approach in advising clients as they face challenges on environmental, food safety, and regulatory compliance issues. She draws on experience gained in cases involving the EPA, FDA, and other public agencies.

Leah’s success as a counselor, litigator and negotiator reflects her combination of subject matter expertise, industry knowledge, and creativity. Her work includes:

  • Investigating, assessing, and remediating vapor intrusion issues at sites with historic solvent contamination...