By KEVIN WALKER
Michigan Correspondent

LANSING, Mich. — The Michigan Court of Appeals has rejected a challenge to the state’s Department of Environmental Quality (DEQ) over a large Concentrated Animal Feeding Operations (CAFOs) rule.

DEQ Rule 2196 requires all large CAFOs to obtain a National Pollutant Discharge Elimination System (NPDES) permit even if it never had an unlawful discharge of animal waste. The standard the DEQ uses is whether the farm has the potential for such a discharge.

One of the plaintiffs in the case, the Michigan Farm Bureau (MFB), issued a statement late last month explaining why it disagrees with the court’s ruling: “The Michigan Farm Bureau respects the Michigan Court of Appeals’ decision but naturally, we’re disappointed by the ruling. On several grounds, we still believe that a ‘permit to discharge’ should not be required of a farm with a clean environmental track record …

“Federal courts have reached the same conclusion. Most recently, the U.S. Court of Appeals Fifth Circuit ruled March 15 that the Environmental Protection Agency (EPA) cannot require livestock farmers to apply for Clean Water Act (CWA) permits unless their farms actually discharge manure into U.S. waters.
“This marks the second time the U.S. Court of Appeals has ruled that EPA’s authority is limited by the CWA to jurisdiction over only actual discharges to navigable waters, not potential discharges,” it reads.

Discharges at large CAFOs are a big issue because of the large number of animals raised there. Such facilities often construct lagoons that store the waste until the farm can spread it onto the ground or dispose of it properly. When a long or hard rain comes, however, sometimes a lagoon can overflow.
If the waste from the lagoon flows off the property and into a public waterway, that is an unlawful discharge, according to David VanderHaagen, senior general counsel for the MFB.

The plaintiffs, which also included the Michigan Milk Producers Assoc., Michigan Allied Poultry Industries, Michigan Pork Producers Assoc., Crockery Creek Turkey Farm and Four D. Farms, filed their original case in the Newaygo Circuit Court on Oct. 22, 2007.

Later, it went to the Michigan Court of Appeals. That court’s decision was published March 29.

VanderHaagen provided some background to the current situation. In 2003 the EPA issued a rule that said all large CAFOs would have to apply for a NPDES permit; Michigan then decided to do the same thing. In 2005, however, federal courts told the EPA it couldn’t require a NPDES permit if the CAFO had never had an actual unlawful discharge.

The key case was Waterkeeper v. EPA, which took place in the federal Second Court of Appeals. After this, some states decided to go their own way. The Michigan Court of Appeals said the Michigan Environmental Protection Act is “broader in its grant of authority to the DEQ than the federal Clean Water Act in its grant of authority to the EPA,” VanderHaagen said.

“They’re saying the federal law does not trump the state law and that it’s lawful to regulate the animal industry more stringently than federal law requires,” he explained. “Our position is that it doesn’t make sense to regulate farms in a different manner than other businesses are regulated.
“Other businesses have to get a NPDES permit only if they have an actual discharge. We thought and we think that this doesn’t make sense. Some farms have had discharges. Lots of businesses have had discharges, too, but only farms are required to get a NPDES permit without having had an actual discharge.”

The court rejected the argument that it’s improper for the DEQ to treat CAFOs more stringently than other businesses because the department provided evidence that these large farms have had 30 illegal discharges, the opinion states. It also said in matters such as this, departments need to be given as much leeway as possible under the circumstances.

In general, the court said federal law “clearly contemplates that states may run their own programs, provided the regulations are at least as stringent as the federal program.”

The plaintiffs have 42 days from the date of the opinion on March 29 to file an appeal. VanderHaagen said no decision has been made on whether to appeal the decision. If they do appeal, it would go to the Michigan Supreme Court.
“Another approach is to seek a legislative change that would amend the Michigan Environmental Protection Act to restrict the power of the DEQ,” VanderHaagen said.