ELR Citation: 43 ELR 20236
No(s). 2:12-CV-42 (N.D. W. Va. Oct 23, 2013) (Bailey, J.)

A district court held that litter and manure washed from a farmyard into navigable waters due to a precipitation event is an agricultural stormwater discharge and not a point source discharge, rendering it exempt from the CWA's NPDES permit requirement. The case involves a poultry farmer who operates a concentrated animal feeding operation (CAFO). All poultry-growing operations and storage at the CAFO are under roof. Nevertheless, litter and manure from the CAFO find themselves on the surrounding farmyard, where they are picked up by rain, carried across a grassy cow pasture, and discharged into a nearby stream. The discharge of pollutants from a CAFO requires an NPDES permit unless that discharge is an agricultural stormwater discharge. Because the farm does not have an NPDES permit, EPA found that the farm was operating in violation of the CWA. The farm, in turn, claimed it was exempt. The court agreed with the farm. Neither the CWA nor its implementing regulations define "agricultural stormwater discharges" within the context of CAFOs. But "common sense and plain English" led the court to conclude that the farm's poultry operation is "agricultural" and that precipitation-caused runoff from the farmyard is "stormwater," thereby qualifying it for the exemption.