MORGANTOWN, W.Va. —
The American Farm Bureau and its West Virginia counterpart say an Environmental Protection Agency move aimed at cleaning up the Chesapeake Bay could set critical legal precedent for their members, so they should be allowed to intervene in an Eastern Panhandle chicken grower's lawsuit.
In a court filing in farmer Lois Alt's case, the bureaus argue they need to represent their members' interests. They say a ruling against Eight is Enough farms would effectively require all similar farms to seek water pollution permits from the EPA if they're designated "concentrated animal feeding operations."
Alt sued the EPA in U.S. District Court in June to stop it from imposing new rules as part of a multi-state effort to clean up Chesapeake Bay. She argues any waste-tainted runoff is agricultural storm water, not "process wastewater," and that means it's not subject to regulation under the Clean Water Act.
Requiring her to seek discharge permits is an overreach of the EPA's authority, she contends.
EPA contends Alt's case is built on facts specific to her Hardy County farm, so the farm bureaus should not be allowed to intervene.
But the bureaus say thousands of "similarly situated" farmers could be affected "if it rains enough in their area to wash manure dust particles off their land and eventually into a jurisdictional waterway."
"Their legal obligations would arise automatically from this court's ruling in EPA's favor," their joint filing says, adding that bureau members "automatically would be confronted with legal obligations that Congress meant not to apply to them."
While the EPA calls the farm bureaus' interest in the case "generalized, speculative and attenuated," the bureaus say their members' interests "are as concrete and immediate as it gets."
Alt wants Judge John Preston Bailey to set aside the EPA's order. She could face civil penalties of up to $37,500 a day if found in violation of what she calls an arbitrary, capricious and illegal action.
Last fall, EPA determined that dust, feathers and fine particles of dander and manure from Alt's poultry house ventilation fans could land on the ground, come into contact with stormwater and flow into ditches, eventually reaching Chesapeake Bay tributaries.
The EPA is focused on protecting the watershed, which encompasses parts of Delaware, Maryland, New York, Pennsylvania, Virginia and West Virginia, and all of the District of Columbia.