ELR Citation: ELR 20402
No(s). 91-CV-6031L (W.D.N.Y. Oct 19, 1993)

The court sets aside a jury's finding of five Federal Water Pollution Control Act (FWPCA) violations in an action by surrounding landowners against a farmer who spread liquid manure as fertilizer in his fields. The court first holds that there is insufficient evidence to support findings that certain discharges from the fields had occurred. It would be speculation to infer discharges on the basis that trucks of manure were present in the fields, especially when such factors as the amount and duration of manure spread and the physical condition of the ground are significant to determine whether the field absorbs the manure or whether the spreading could result in discharges. The court holds that two discharges observed by landowners and a witness were not point source discharges, as defined by FWPCA §502(14), because they were "agricultural stormwater discharges." On both occasions water runoff due to precipitation caused the liquid manure to enter ditches and field depressions and subsequently streams. Applying United States v. Plaza Health Laboratories, Inc., 23 ELR 21526 (2d Cir. 1993), the court holds that the remaining discharge was not a point source discharge. It was too diffuse and was the type of agricultural discharge Congress intended to exempt through the agricultural stormwater and irrigation return flow exceptions to FWPCA regulation. Finally, the court holds that there was sufficient evidence to support the landowners' trespass claim and that expert testimony regarding the claim was allowable because the farmer failed to object when the testimony was presented and failed to provide experts to refute the testimony.

[A prior decision in this action is published at 24 ELR 20396.]

Counsel for Plaintiffs
Donald W. O'Brien
Woods, Oviatt, Gilman, Sturman & Clarke
Central Trust Bldg.
44 Exchange St., Rochester NY 14614
(716) 454-5370

Counsel for Defendants
John W. Clarke, Althena Jamesson
Harris, Beach & Wilcox
Granite Bldg.
130 E. Main St., Rochester NY 14604
(716) 232-4440