Ag Stormwater Exemption Upheld – EPA Position Rejected
A recent federal court opinion has upheld the exemption for agricultural stormwater discharges from the National Pollutant Discharge Elimination System (NPDES) permit requirement. The case involved a West Virginia confinement poultry operation where the EPA was claiming a federal permit was necessary for discharges of chicken dander when mixed with rainwater.
NPDES – Overview
The Clean Water Act (CWA) imposes upon the federal government the responsibility for eliminating pollution from point sources by establishing federal restrictions on discharges from these sources, and enforcing them by means of a federal permit system. This federal permit system, known as the National Pollutant Discharge Elimination System (NPDES) is the chief mechanism for control of discharges. No one may discharge a “pollutant” from a point source into the “navigable waters of the United States” without a permit from the EPA. The NPDES system only applies to discharges of pollutants into surface water.
While most agricultural pollution is nonpoint source pollution, the NPDES does have a major impact on the cattle feeding business and other agricultural confinement operations. The CWA identifies concentrated animal feeding operations (CAFOs) as a point source of pollution subject to the NPDES. Thus, the EPA has issued effluent limitations and federal standards of performance for CAFOs. Under current EPA rules, an animal feeding operation (AFO) is defined as a “lot or facility” where animals are confined for 45 days or more within a 12-month period, and on which crops are not grown during the normal growing season. CAFOs and AFOs are divided into three categories with large CAFOs defined as those confining more than a specified number of animals that discharge pollutants into water of the United States. All large CAFOs must apply for an NPDES permit unless it can demonstrate that it has no potential to discharge pollutants into regulable waters other than agricultural stormwater from land application areas. A CAFO that receives a “no potential to discharge” determination remains liable under the CWA for actual discharges without a permit.
All CAFO NPDES permits must include nutrient management plans, record keeping obligations (including maintenance of nutrient management plans), off-site manure transfer records and annual reporting of the number of animals in confinement and the amount of manure applied. In addition, each animal category must satisfy effluent limitation guidelines. Beef, dairy, swine and poultry operations must implement best management practices for the land application of manure based upon the nutrient management plan and subject to certain setback requirements, but are expressly allowed to discharge from the land application area so long as the waste is applied in accordance with a nutrient management plan. Horse and sheep CAFOs, however, cannot discharge except in an “overflow” event from a facility built to contain all wastes plus the runoff from a 10-year, 24-hour storm event.
The West Virginia Case
In a case involving a West Virginia poultry CAFO, the EPA had issued an order that the CAFO obtain an NPDES permit for stormwater discharges on the basis that a regulable discharge occurred when dust, feathers and dander were released through ventilation fans and then came into contact with precipitation. The plaintiff’s CAFO consisted of eight poultry confinement houses equipped with ventilation fans, litter storage shed, compost shed and feed storage bins. The entire poultry growing operation, manure and litter storage were under a single roof. The resulting dust particles and feather discharges, the EPA claimed, were not within the agricultural stormwater discharge exemption because the exemption only applied to land application areas where crops are grown. The CAFO was threatened with significant fines - $37,500 for each occurrence and separate fines of $37,500 per day for failure to apply for a NPDES permit. The plaintiff challenged the EPA’s position in court. In response, the EPA withdrew its order and motioned to dismiss the case. The court refused the EPA’s motion, thereby forcing the EPA to defend its position in court. The court noted that the EPA had not changed its regulatory position against other farmers, and that proceeding on the merits would benefit all parties by clarifying extent of CWA discharge permit liability and whether an NPDES permit is required for ordinary precipitation contacting typical farmyard by-products of animal and poultry agricultural production. Various environmental activist groups were also allowed to intervene on the EPA’s behalf, except that the Chesapeake Bay Foundation attempt to intervene was ruled untimely because its motion was filed after the plaintiff filed its motion for summary judgment.
At the trial on the merits, the court noted that the ag stormwater exemption was added to the CWA in 1987 but was not defined. The court believed that evidenced a congressional intent that the phrase should be given its ordinary meaning. Based on that rationale, the court stated that it was common sense that the plaintiff’s operation was “agricultural” and that the runoff triggered by rainwater was “stormwater.” The court did not accept EPA’s position that the exemption for ag stormwater discharges didn’t exist until EPA developed its regulation in 2003. The court also noted that a prior court had determined that the EPA’s 2003 rule expanded the definition of exempt “agricultural stormwater discharge” to include land application discharge, if the land application comported with appropriate site-specific nutrient management practices. That conclusively indicated, the court noted, that the exemption had always been in place and applied to situations where land application practices were not involved.
The court also rejected the EPA’s arguments that stormwater from a CAFO’s production area is not entitled to the exemption and that the plaintiff’s discharge is industrial rather than agricultural.
The case is Alt, et al. v. United States Environmental Protection Agency, et al., No. 2:12-CV-42, 2013 U.S. Dist. LEXIS 152263 (N.D. W.V. Oct. 23, 2013).