Waterkeeper Alliance, Inc. v. Hudson, et al., No. WMN-10-487, 2013 U.S. Dist. LEXIS 121500 (D. Md. Aug. 27, 2013)

Waterkeeper Alliance, Inc. v. Hudson, et al., No. WMN-10-487, 2012 U.S. Dist. LEXIS 179962 (D. Md. Dec. 20, 2012)(plaintiff claimed that defendant discharged chicken litter containing various pollutants into navigable waters of the United States (ditches that drained into Chesapeake Bay) from defendant's 300-acre farm without required CWA permit; plaintiff's initial claim involved alleged chicken litter in pile near river, but pile turned out to be sewage sludge (bio-solids) from Ocean City, MD intended for use as fertilizer on defendant's crops; plaintiff then changed claim to assert that pile tainted with chicken manure and that chicken manure illegally discharged in trace amounts from exhaust fans in defendant's confinement chicken houses (two houses each containing 40,000 chickens), equipment tires and boots; while court noted that possibility that some pollution had come from defendant's chicken houses, plaintiff failed to meet burden of proof by preponderance of evidence in establishing that illegal discharge occurred; plaintiff did not sample dust emitted from fans to determine if chicken litter present, and no eyewitness account of actual discharge; obvious source of discharge was cow manure from 42 cows pastured near ditch (non-point source discharges not regulable under CWA); contract chicken supplier (Perdue Farms) had no connection with defendant's cattle operation and is not liable as beyond Notice of Intent which was limited to poultry waste, and insufficient evidence presented to establish CWA liability on Perdue Farms even if court had found CWA violation stemming from defendant's poultry operation; in subsequent action, Waterkeeper Alliance, Inc. v. Hudson, et al., No. WMN-10-487, 2013 U.S. Dist. LEXIS 121500 (D. Md. Aug. 27, 2013), court rejected defendants' request for attorney fees on basis that court could not hold that underlying claim was frivolous, unreasonable or without foundation).

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