<b>By SHELLY STRAUTZ-SPRINGBORN<br>
Michigan Correspondent</b> </p><p>

LANSING, Mich. — The Michigan Court of Appeals last week ruled that the state’s program for regulating large livestock and poultry farms violates the federal Clean Water Act.<br>

The Act prohibits the “discharge of any pollutant” into “navigable waters” from any “point source,” except when authorized by a permit issued under the National Pollutant Discharge Elimination System (NPDES). Opponents contend that concentrated animal feeding operations, or CAFOs, pose a threat to public waters because they are allowed to spread large concentrations of untreated animal waste onto farm fields.<br>

In a 2-1 ruling, the court said that Michigan is giving CAFOs too much authority to determine their own rates for spreading manure and keeping information secret from the public.<br>

The Sierra Club filed a lawsuit against the Michigan Department of Environmental Quality (MDEQ) last year criticizing the system.<br>

“The Michigan Appeals Court decision is a major victory for anyone concerned about pollution problems from concentrated animal feeding operations,” said Anne Woiwode, director of the Sierra Club’s Michigan Chapter. “The Sierra Club is very pleased that the court majority found entirely in our favor after more than three years of challenges to Michigan Department of Environmental Quality’s deficient program.<br>

“Most importantly, this decision reaffirmed the right of people who live near or far from these operations to review and provide comment on the actual design and plans for these facilities before they are approved by the MDEQ, a fundamental provision of the Clean Water Act,” she said.<br>

Approximately 200 CAFOs in Michigan collectively generate more than four billion pounds of manure annually, according to state data. CAFOs typically have 1,000 or more “animal units.” Nearly all of that manure is spread, untreated, on farm fields, and risks pollution of nearby streams.<br>

In 2004, Michigan began issuing pollution discharge permits to CAFOs in an effort to curb manure runoff and contamination of surface waters. Under the current system, the MDEQ issues pollution discharge permits before CAFO operators provide comprehensive nutrient management plans. The plans detail how much manure will be applied to land and where it will be applied.
In its ruling, the court said CAFOs’ nutrient management plans should be available to the MDEQ before the agency issues a permit.<br>

“These livestock factories produce untreated animal sewage on a scale comparable to cities, but have never been required to meet the same environmental and health standards required of other industries,” Woiwode said.<br>

Judges William Whitbeck and Michael Talbot, who ruled in favor of the request, based much of their decision on a February 2005 federal appeals court decision. That ruling partially threw out federal rules governing large CAFOs because they didn’t ensure that CAFOs would comply with environmental standards.<br>

The court also ruled that Michigan’s permitting process doesn’t give the public an opportunity to review plans proposed by CAFO operators. The MDEQ, however, has said concerned citizens may file a Freedom of Information Act request to obtain additional information. Further, a new general permit is subject to a public notice and hearing process.<br>

“This is a rather circuitous path to encouraging and assisting public participation,” Whitbeck wrote. “Requiring the public to obtain a comprehensive nutrient management plan after a CAFO files it with MDEQ certainly does not provide the public with any method of meaningful review during its development.”<br>

Judge Brian Zahra dissented from the ruling, writing that the Sierra Club made “sweeping assertions” that Michigan’s general CAFO permit is contrary to state law.<br>

The “Sierra Club has not pointed to any Michigan statute or regulation that has been violated,” Zahra wrote. “Here, the Sierra Club sought and received the ability to influence how CAFO operators manage their farms in order to satisfy the effluent limitations set forth in the general permit. Nothing in state or federal law grants the Sierra Club such authority.”<br>

Michigan Farm Bureau contends that CAFOs strengthen Michigan’s $60 billion farm economy and do not pose more of a threat to the environment than small farms.<br>

“We were not parties to the ruling,” said Scott Piggott, manager of Michigan Farm Bureau’s Agriculture Ecology Department. But, “we are interested in the outcome and are reviewing the impacts.”<br>

“Everyone has a right to clean water and a right to assure that the state and federal agencies that oversee our environment are protecting their health and well-being,” Woiwode said.