By Kevin Walker
LANSING, Mich. – The Michigan Department of Environment, Great Lakes, and Energy (EGLE) has asked the state supreme court to hear its appeal of a state appellate court ruling that upheld an argument from the Michigan Farm Bureau (MFB) regarding large farms and discharge permits.
The state court of appeals ruled in favor of the case brought by the Michigan Farm Bureau in 2020, which argued that changing the permits requires going through procedures to establish new rules. EGLE issued the new permit, or permitting conditions, in 2019, which more tightly regulates how large farms – often referred to as large concentrated animal feeding operations (CAFOs) – can spread manure on fields. Environmental groups are concerned that this practice results in manure runoff, which they say is responsible for cynobacterial blooms in the Western Lake Erie Basin, a problem which has gotten worse in recent years.
“Clean, fresh water is at the heart of Michigan’s identify, and the state constitution affirms that preventing water pollution is of paramount concern,” reads one section of an amicus brief filed with the Michigan Supreme Court late last month in support of EGLE’s defense. “But Michigan’s waters are increasingly impaired by nutrient and E. coli pollution from CAFOs. Although EGLE is statutorily obligated to issue permits that ‘assure compliance’ with water quality standards, CAFOs are still operating under a permit from 2015 that contains the minimum allowable standards and that EGLE staff admits is failing. Unless this court vacates the court of appeals’ opinion, this regulatory failure will become frozen in place.” The brief was filed by 11 environmental groups.
An MFB spokesman would not comment for this story, citing the ongoing litigation. However, the spokesman issued the following statement: “We agree with the court of appeals, which ruled that EGLE needs to follow the provisions of the Administrative Procedures Act when it conducts rulemaking, which will help assure that rules are developed based on sound science.”
In 2020, MFB’s Laura Campbell commented in a published report, stating the new permit ignores science-based agronomic principles and management practices, demonstrated by what she called an arbitrary and flat reduction rate for phosphorus from large livestock farms.
“Up until this point, limiting application rates was based on research done by Michigan State University with dozens of soil types,” Campbell said. “What the department has done across the board is require everyone to reduce maximum phosphorus levels in the soil by 10 percent, and in addition to that, if you are in a watershed that has a total maximum daily load for nutrients, your reduction is 20 percent. It’s a number it appears they just picked out of a hat, because there isn’t any research to back it up.” It’s not clear when the state supreme court will issue a decision on whether it will hear EGLE’s appeal of the appeals court decision on the case.
In a similar vein, the Michigan Meat Association sued EGLE in January, saying it overstepped its authority in creating an updated groundwater discharge permit for meat processors and slaughter facilities. The new permit took effect on Nov. 1, 2022. The permit regulates wastewater for slaughterhouse and meat processing facilities not connected to municipal wastewater systems. The new permit could serve as a model to use when updating other permits, like those for fruit and vegetable processing. Affected businesses could include wineries, breweries, distilleries and other small- to medium-size food processors.