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Alt v. United States Environmental Protection Agency

ELR Citation: 43 ELR 20097
Nos. 2:12-CV-42, (N.D. W. Va., 04/22/2013) (Bailey, J.)

A district court denied EPA's motion to dismiss a poultry farmer's lawsuit against the Agency seeking a declaratory judgment that farmyard stormwater runoff is statutorily exempt from regulation as an agricultural stormwater discharge. In 2011, EPA issued a compliance order to the farmer requiring her to obtain a NDPES permit. She filed suit challenging the order because she believed the discharges are exempt from the CWA's permitting process. But in December 2012, EPA withdrew the order. It then filed a motion to dismiss the farmer's lawsuit, contending that the withdrawal of the compliance order rendered the proceeding moot. The issue of whether an action is moot under the voluntary cessation doctrine is highly sensitive to the facts of a given case. Here, although EPA has withdrawn the compliance order, it has reserved the right to issue another such order in the event of a significant change in circumstances or operations. And EPA plainly has not withdrawn, rescinded, repudiated or otherwise altered its legal position that, despite the statutory exemption for agricultural stormwater, farmyard stormwater must be regulated through a federally mandated permit. EPA's adherence to its underlying position demonstrates that the Agency’s challenged assertion of authority not only can be reasonably expected to recur, but in fact is ongoing even now. The case, therefore, is not moot. The court also granted environmental groups' motions to intervene in the case.