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Federal Court Rules Agricultural Stormwater Exemption Applies to CAFOs Too

Does a concentrated animal feeding operation (CAFO) violate the Clean Water Act if it does not obtain an NPDES permit for airborne dust that settles on a surrounding farmyard and then washes into a water of the United States during rainstorms? That question has now been addressed twice within the past year to differing results.

In Rose Acre Farms, Inc.  v. NC Dep’t of Env’t and Natural Resources, a North Carolina state court determined that a facility should have obtained an NPDES permit solely for dust being expelled through the air from a henhouse.  According to that court, air emissions could be regulated under the CWA.  However, an October decision by the District Court for the Northern District of West Virginia, Alt v. U.S. E.P.A., No. 2:12-CV-42, 2013 WL 5744778 (N.D.W. Va. Oct. 23, 2013), will be welcome news for those in the agricultural industry troubled by the North Carolina court’s decision. 

The facts of Alt v. EPA are not uncommon for the poultry industry.  The plaintiff, Lois Alt, raises poultry on a CAFO.  Although the poultry are confined to eight houses equipped with ventilation fans, dust composed of manure, litter, dander, and feathers inevitably makes its way to Alt’s farmyard surrounding the operation.  In particular, the dust is blown from the buildings’ fans.  During rainstorms, the collected dust washes 200 yards over a grassy cow pasture and is then discharged into a water of the United States.  Alt does not have a NPDES permit.   

In 2011, EPA sent a Findings of Violations and Order for Compliance to Alt alleging that Alt’s poultry production facility “discharged pollutants from man-made ditches via sheet flow to Mudlick Run during rain events generating runoff without having obtained an NPDES permit.”  EPA alleged that Alt violated the CWA as a matter of law and was subject to civil penalties and possible criminal action. 

Instead of waiting for the subsequent lawsuit, Alt struck first by filing a declaratory action to determine that the “discharges containing manure and litter emanating from Ms. Alt's farmyard are exempt agricultural stormwater discharges.”  The district court agreed with Alt and dismissed each argument put forth by EPA:

  • Although a CAFO is considered a point source under the CWA, the definition of point source excludes “agricultural stormwater discharges,” even if the discharges are associated with a CAFO.  “Therefore, the discharge of pollutants from a CAFO requires an NPDES permit unless that discharge is an ‘agricultural stormwater discharge.’”
  • The farmyard surrounding the poultry houses was not a “production area” as defined in 40 C.F.R. § 122.23(b)(8).  Even though the dust originated from the CAFO’s production area, the dust became an “agricultural” discharge once it settled on the surrounding farmyard.  According to the court, “agricultural stormwater discharges are exempt from regulation ‘even when those discharges came from what would otherwise be point sources.’” 
  • To take advantage of the agricultural stormwater exemption, the discharge must merely be related to “agriculture.”  The discharge itself does not need to have “an agricultural purpose,” as argued by EPA.   

This decision is a welcome relief for the agricultural industry, particularly in light of a North Carolina state court decision.  Most importantly, the decision is a welcome sign that district courts will impose limits on EPA’s attempt to broaden the definition of “point source.” 

About the Author

Chase Horne is an attorney practicing out of our Madison office. He is a member of the Environmental Law, Litigation and Background Screening practice groups. Contact Chase by email or by phone at 608.283.5616.


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