3. Clean Water Act (CWA) developments. Two cases decided in 2013 have important implications for agriculture. In the first case, the exemption from the CWA National Pollutant Discharge Elimination System (NPDES) permit requirement for ag stormwater was upheld. 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.

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. Alt, et al. v. United States Environmental Protection Agency, No. 2:12-CV-42, 2013 U.S. Dist. LEXIS 65093 (W.D. W. Va. Apr. 22, 2013).

 

Want the latest agricultural news each day? Click here for the Western Farm Press Daily e-mail newsletter.

 

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. 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).

In a California case, the plaintiffs brought a citizen suit action under the CWA claiming that the defendant’s (U.S. Bureau of Reclamation) Grasslands Bypass Project in California’s San Joaquin Valley illegally discharged polluted water (water containing naturally-occurring selenium from soil) into navigable waters of the United States via subsurface tile system under farmland without an NPDES permit. The plaintiff directly challenged the exemption of tile drainage systems from CWA regulation via “return flows from irrigated water” on the basis that groundwater discharged from drainage tile systems is separate from any irrigation occurring on farms and is, therefore, not exempt. The court initially refused to grant the defendant’s motion to dismiss. Ultimately, however, the court dismissed the case and specifically noted that the parties agreed that the only reason the project existed was to enable the growing of irrigated crops and that, therefore, any contaminated water that is drained off would occur only due to irrigated agricultural activities. The court noted that the wording of the exemption including the phrase “return flows” narrows the type of water permissibly discharged from irrigated agriculture and covers discharges from irrigated agriculture that don’t contain additional discharges unrelated to crop production. On that point, the court held that the plaintiffs failed to plead sufficient facts to support claim the some discharges were unrelated to crop production. So, farm tile drains are not subject to the CWA’s NPDAES permit requirement. However, the court did grant leave to the plaintiffs for them to file an amended complaint. The plaintiffs have filed an amended complaint alleging that a large portion of the tile drain outflows came from non-agricultural sources. Pacific Coast Federation of Fishermen’s Associations, et al. v. Glaser, et al., No. CIV S-2:11-2980-KJM-CKD, 2013 U.S. Dist. LEXIS 132240 (E.D. Cal. Sept. 16, 2013).