The Answer, My Friend, Is Not Blowin’ In The Wind: Waste From CAFO Ventilation Fans Does Not Require an NPDES Permit

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Earlier this year, in her aptly named post “What the Cluck?”, Patricia Finn Braddock, noted that a state court in North Carolina had held that wastes from poultry farms, blown by ventilators from confinement houses and then washed into waters of the United States with stormwater flow, are subject to NPDES permit requirements.  Well, in a decision issued on October 23, Judge John Preston Bailey, of the District Court for the Northern District of West Virginia, asked himself the same question.  His answer was that EPA has no such authority.

In a theme recurring with greater and greater frequency in judicial interpretation of seemingly impenetrable environmental laws, Judge Bailey found a clear plain meaning, where others have found complexity and the need for detailed EPA guidance.  In 1987, Congress amended the definition of “point source,” adding a provision stating that

This term does not include agricultural stormwater discharges.

That was pretty much the end for Judge Bailey.  Agriculture includes raising livestock, and EPA’s allegation was that waste was blown by ventilators onto fields and then washed into waters of the United States.  If it walks like an agricultural stormwater discharge….

EPA argued that 2003 regulations gave it authority to regulate this type of “discharge.”  However, the preamble to the regulations stated that

EPA does not intend its discussion of how the scope of point source discharges from a CAFO is limited by the agricultural stormwater exemption to apply to discharges that do not occur as a result of land application of manure, litter, or process wastewater.

Because Judge Bailey concluded that EPA’s own regulations disclaimed applicability to the operations at issue in this case, he found EPA’s interpretation was not entitled to Chevron deference.  The Court also rejected EPA’s argument that several guidance letters – which were relied on in the North Carolina case – supported its position.  Judge Bailey again disagreed, finding that such letters get only limited deference “to the extent that they have the power to persuade.  Judge Bailey was not persuaded.

I don’t think we’ve seen the end of the great chicken (expletive deleted) debate.