Commentary: Stinging defeat for EPA and environmentalists
In language that is critical for all CAFO operators, the court says "The areas between the poultry houses are clearly not the animal confinement area…"
EPA argued that litter, dust and feathers which may be in the farmyard would have to come originally from the production area. If so, these pollutants, if washed into a waterway, would be ineligible for the agricultural stormwater exemption. The court made it clear EPA is simply wrong.
In closing, the West Virginia court relies on another U.S. Court of Appeals opinion. It said that "Congress was affirming the impropriety of imposing…liability for agriculture-related discharges triggered not by negligence or malfeasance, but by the weather - even when those discharges came from what would otherwise be point sources." (Read numeric nutrient control into this language that EPA is trying to impose on agricultural nonpoint source runoff into streams.)
This is a stinging defeat for EPA and the environmental groups. No doubt there will be an appeal. EPA has lost a huge tool in its effort to control agricultural runoff. The American Farm Bureau deserves our appreciation for winning this case for all agriculture.
Gary H. Baise is a principal at OFW Law (Olsson Frank Weeda Terman Matz P.C.). This article first appeared in Farm Futures magazine. The opinions presented here are expressly those of the author. For more information, go to www.OFWlaw.com.
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