How Broad is the Clean Water Act’s Agricultural Stormwater Exemption?

A recent case from West Virginia, October 23, 2013, raises questions about EPA’s regulation of stormwater from farms. This case involves a West Virginia poultry farmer. The issue in this case is whether a release of manure, dust and particles from the farming operations, which were ultimately carried by stormwater to a local stream, is subject to regulation under the Clean Water Act or is exempt as an agricultural stormwater discharge under the Act. In other words, is the discharge considered to be exempt from the definition of a point source under the Act? Here, EPA issued a compliance order to the farm, requiring the farm to obtain an NPDES permit to control the air releases of certain particles that eventually found their way into the stream. Although EPA eventually withdrew the order and sought to dismiss the lawsuit filed by the farm owner, agricultural interests fought the dismissal, arguing that the stormwater discharge fell within the Clean Water Act exemption for agricultural stormwater. The U.S. District Court for the Northern District of West Virginia agreed with the agricultural groups and found that the stormwater from the farm was exempt from the NPDES permit requirements, although the exemption was not clearly defined in either the Clean Water Act or EPA’s regulations.