West Virginia’s Agriculture Commissioner Criticizes EPA Enforcement Actions Against Poultry Farms

The Chesapeake Bay Total Maximum Daily Load (“TMDL”) is tasked with reducing pollution (specifically nitrogen, phosphorous, and sediment) in the Bay’s 64,000 square mile watershed.  EPA has described the project as the largest and most complex TMDL ever attempted. Last month, EPA notified four poultry farms in West Virginia’s eastern panhandle that they are concentrated animal feeding operations (“CAFO’s”) that must obtain NPDES permits. 

EPA officials had toured these farms and found man-made ditches leading from poultry houses and manure sheds to local waterways.  After a storm event, EPA claimed, these ditches would discharge pollutants, including nitrogen and phosphorus, into nearby waterways.  It does not appear from EPA’s press release that these operations were actually discharging pollutants at the time of the inspection, but were instead designed in such a way that EPA anticipated that they might discharge pollutants during future storms.  EPA conducted similar site visits in the summer of 2010 in Virginia’s Shenandoah Valley, resulting in administrative orders commanding two CAFO’s to cease discharges into local waterways. 

Commenting on its recent actions, EPA claimed that educating farmers about their responsibilities to reduce stormwater runoff under the CWA is necessary.  “Based on our experience, educating farmers on the requirements of the Clean Water Act goes a long way in helping them to protect and improve local water quality and increase compliance.”   

West Virginia’s Commissioner of Agriculture, Gus R. Douglass, released a statement on December 15, 2011 that characterized EPA’s recent enforcement actions in West Virginia as “unnecessary, misguided, and potentially outside of EPA’s authority.” Commissioner Douglass went on to say that “EPA is loosely using technicalities in the Clean Water Act – not evidence of pollution – to put these farms under a command and control regime. Simply having an arbitrary number of animals on a farm is no reason to have to get a NPDES permit.”
Douglass also took issue with EPA’s insistence that it is simply trying to educate farmers of their responsibilities under the CWA.  “If they were really trying to help farmers, they would find specific instances of farm pollution and provide funding to implement best management practices (BMPs) that alleviate those problems, rather than hiring an army of permit writers and inspectors.” 

As detailed in a previous article on this blog, the United States Court of Appeals for the Fifth Circuit recently ruled that EPA lacks authority under the CWA to order CAFO’s to apply for NPDES permits unless they are  actually observed discharging pollutants.  Current EPA policy requires CAFO’s that “propose to discharge” (i.e., are designed or operated in a way that EPA believes they will likely discharge pollutants at some indefinite point in the future) to obtain NPDES permits. 

This article was authored by Aaron S. Heishman, Jackson Kelly PLLC. For more information on the author see here.