Recent Nuisance Suits Involving Farms Highlight Why Farms Should Understand How a Right-to-Farm Defense Operates

Cover Crop Agriculture in Frederick County, Md.

Liquid manure being applied by a tractor a field in Maryland.  Photo by Matt Rath/Chesapeake Bay Program

This article should not be considered legal advice.

Over the course of 2018, you have probably seen the stories involving nuisance suits brought by neighboring landowners against hog farms in North Carolina, leading to large verdicts against Smithfield Foods. Similar lawsuits are going on around the country involving neighbors claiming nearby hog farms are nuisances. In many cases, the state’s right-to-farm law should provide a possible defense to the farm, but the farm needs to meet all the requirements in the right-to-farm law to use the defense. Understanding the requirements can assist in maintaining the right-to-farm defense. Continue reading

Maryland Court Upholds the 2014 CAFO Permit For Complying With EPA’s Requirements

8684510918_a884b381bc_o

Dairy cattle eating feed.  Image by Stephanie Schupska, Univ. of Georgia, CAES/Extension.

The article is not a substitute for legal advice.

In 2014, the Maryland Department of the Environment (MDE) issued a new general discharge permit for concentrated animal feeding operations (CAFOs) in Maryland. The 2014 permit was to replace a 2009 permit that was set to expire. This 2014 permit required no effluent monitoring only implementation of best management practices to prevent discharge into waters covered by state law and the Clean Water Act (CWA). The 2014 permit is a zero discharge permit. Food & Water Watch and the Assateague Coastal Trust challenged the permit for not requiring enough monitoring to ensure compliance with the CWA. The Maryland Court of Special Appeals recently upheld the 2014 permit based on substantial evidence to demonstrate MDE had complied with the CWA requirements.

Background

In early 2014, MDE began to prepare for the expiration of the 2009 CAFO permit by developing the 2014 permit to take effect when the 2009 permit expired. MDE was in communication with the Environmental Protection Agency (EPA) informally during the development process and dealt with EPA’s comments. At no point during this informal review process, EPA never mentioned that the 2014 permit would need effluent monitoring. EPA approved the proposed 2014 General Discharge Permit, and MDE began the required public comment period.

During the public comment period, Food & Water Watch and Assateague Coastal Trust filed comments highlighting that the CWA requires NPDES permits to include conditions on collecting data and information. In the view of these two groups, MDE should require more than annually analyzing manure for phosphorous and nitrogen content and every three years collecting soil samples to analyze phosphorous and pH from land application fields. The two groups proposed that MDE should require more regular testing of water for nitrogen, phosphorous, and fecal coliform where wastewater flowed off the CAFO via drain ditches and other locations identified by the nutrient management planner.

In issuing the final permit, MDE rejected these arguments and highlighted its discretion. The CWA provides MDE with the discretion to require monitoring when MDE reasonably determines that monitoring equipment would help carry out the objectives of the CWA.   MDE also maintains authority in the 2014 permit to require additional best management practices when MDE determines additional practices are needed.

Food & Water Watch along with the Assateague Coastal Trust filed a suit against MDE claiming that the 2014 General Discharge Permit for CAFOs did not include chemical, biological, and physical monitoring requirements or effluent monitoring requirements. The circuit court affirmed MDE’s 2014 permit and the two groups filed an appeal with the Court of Special Appeals of Maryland.

Court’s Reasoning

8389002559_177c697d26_o (1)

Image of poultry in house.  Image by Mark Risse, University of Georgia from Livestock and Poultry Environmental Learning Center.

Since this is an appeal involving an administrative agency’s decision, the court will typically defer to the agency’s decision if the agency supported the record with competent and substantial evidence. If the agency did not support a decision with competent and substantial evidence or where the agency draws impermissible or unreasonable inferences and conclusions from the evidence, then a court will remand to the agency for further development.

On appeal, the court rejects the first case Assateague Coastal Trust and Food & Water Watch relies on. In Maryland Dep’t of Env’t v. Anacostia Riverkeeper, the Court of Appeals of Maryland found the stormwater management permit included sufficient biological and physical monitoring. The two groups argue that the 2014 permit failed to included any monitoring of locations where pollutants from CAFOs could be entering bodies of water. This prior decision is focused on stormwater discharges and not a zero discharge permit. For this reason, not being on point, the court rejects this argument and moves on to two federal court decisions involving including monitoring in CWA permits.

Looking at the other decisions the two groups rely on, MDE had approved a zero discharge permit with the 2014 CAFO permit. The first decision, Natural Resource Defense Council, Inc. v. Cnty of Los Angles, the two groups argued stood for the idea that the NPDES permit must require effectively monitored discharges to show permit compliance to be lawful. MDE’s 2014 permit involved no discharges, and if a discharge does happen, the CAFO operator must have implemented the required nutrient management plan and other plans or violate the permit.

The next case, Natural Resource Defense Council, Inc. v. U.S. EPA, the groups argued demonstrated that MDE’s reporting requirements and usage of best management practices were inadequate under the terms of the CWA. The court disagreed with the two groups. This case cited by the two groups demonstrated that best management practices could be used in certain situations to comply with the CWA. The prior case cited CAFOs as one area where best management practices would be appropriate.

When it came to requiring monitoring of discharges by the CAFO operator, the court agreed with the arguments made by MDE. To the court, the 2014 permit was a zero discharge permit and monitoring was not necessary and that implementing best management practices helps ensure zero discharge of waste. When making land applications of manure, the CAFO operator must include the land application in a log book that must be maintained for five years and be made available to MDE for inspection.

The court concludes that based on the administrative record there is substantial evidence to support that MDE’s 2014 permit complied with EPA’s regulations and upheld the circuit court’s ruling.

Why Care?

The 2009 general permit for CAFOs issued by MDE was also upheld by the Court of

Bobby Morgan Poultry Farm

Concentrated Animal Feeding Operation example, a poultry house.  Image by Bob Nichols via USDA.

Special Appeals of Maryland with many of the same groups challenging that permit as challenged the 2014 permit. The 2014 permit will expire at the end of November 2019. MDE will work on the guidelines for issuing a new general CAFO permit to replace the 2014 permit once it expires.

This recent decision, along with the decision in the 2009 permit challenge, highlights that as long as MDE has substantial evidence to document why MDE made the choices it did with the permit, a court will typically uphold the permit. From this case, MDE worked informally with EPA to develop the 2014 permit to ensure that the permit met requirements in the CWA. Hypothetically, if the 2019 permit is challenged (after developing and issuing), then we might expect a similar outcome if MDE continues to work informally with EPA to ensure the next general CAFO permit meets the CWA requirements.

References

Food & Water Watch v. M.D. Dep’t of Envtl., No. 2602, 2018 WL 2203175 (Md. Ct. Spec. App. May 14, 2018).

Webinar Highlighting 2018 Farm Bill Now Available

10059893066_76651d158c_o

Soybean field with grain elevator in the background.  Image by United Soybean Board

In August, the Department of Agricultural and Resource Economics hosted a webinar covering the 2018 Farm Bill debate.  As I write and post this post, the Farm Bill is still being debated by the conference committee and this webinar covers the competing House and Senate versions of the Farm Bill.

The webinar featured Jonathan Coppas, Clinical Assistant Professor, University of Illinois. Mr. Coppas discussed where we are at in the process and changes in policies that producers should be aware of.

For more information on the Farm Bill, I encourage you to check out the Department of Agricultural and Resource Economics’ Farm Bill website. On the site, the AREC faculty cover many of these competing versions of the Farm Bill and potential impacts of the legislation.

USDA Did Not Have the Discretion to Implement New Program That Benefited Farmers: When Does The Agency Have Discretion to Implement a New Program?

9281828965_ffaed075fe_o

Combine unloading wheat into a semi truck in a harvested field.  Photo by Shannon Dizmag via flickr.com

The article is not a substitute for legal advice. 

Many of us are paying attention to the debate over the new Farm Bill and looking at how changes to existing programs and potential new programs. One issue that may come up after passing a new Farm Bill is how quickly USDA must implement the program changes or new programs. In Ausmus v. Perdue, a group of Colorado wheat farmers recently won after selecting to utilize a new crop insurance product before USDA’s Risk Management Agency (RMA) had implemented the product for wheat. The court ruled that although it might conflict with other duties had under federal law, RMA had to allow producers the ability to use the program after the effective date of the 2014 Farm Bill and not when RMA had implemented the regulations. Continue reading

Right-to-Farm Law Does Not Protect Landowner From Nuisance Caused by Septage Lagoons

 

3869426939_8bdae951bc_o

Farmland in Alaska by Michael Hayes via flickr.com

The article is not a substitute for legal advice. 

Today, I want to highlight a recent right-to-farm law decision out of Alaska. The Supreme Court of Alaska, in Riddle v. Lanser, held that the state’s right-to-farm law did not protect a landowner who was storing septage on agricultural property. Many readers might be thinking that this is a bad time for right-to-farm laws, especially after the jury verdict involving a North Carolina hog farm, but this case highlights that right-to-farm laws do not protect those not really involved in agriculture before becoming a nuisance. Continue reading

Right-to-Farm Law Does Not Apply in a Recent North Carolina Hog Farm Dispute

4804724135_6ede91bfd2_o

Hogs in hog barn.  Image by Kevin Chang via flickr.com

The article is not a substitute for legal advice.

News broke recently of a $50 million jury verdict* for damages caused to neighbors of a large hog farm in North Carolina. The jury found that the hog farm was a nuisance to neighboring landowners. When many of us this saw this verdict, you may have had a similar thought to me: shouldn’t a state’s right-to-farm law should provide the hog farm a defense in this case. Before the jury’s verdict, the federal district judge hearing the case ruled that North Carolina’s right-to-farm law would not apply in this case. The judge ruled that there had not been a change in the condition in the area that would have allowed the right-to-farm law to act as a defense to the nuisance claims. Continue reading

Eligible Corn Growers and Landlords Begin Filing Syngenta Settlement Claims in May

9625544162_d1945ac3b0_o (1).jpg

Corn harvest with combine dumping onto grain cart.  Image  by United Soybean Board.

This post is not legal advice.

On April 10, 2018, a federal district court judge granted preliminary approval to the $1.51 billion MIR162 Syngenta settlement. This settlement, reached in September 2017 and officially announced in March 2018, would settle claims by U.S. farmers for Syngenta bringing Viptera and Duracade corn varieties to market before approval in China. This approval means corn growers region will begin to see formal notices hitting their mailboxes in May, and the claims process will begin. Corn growers and eligible landlords will be able to file claims electronically beginning May 11, 2018, at www.cornseedsettlement.com, or by calling 1-833-567-CORN(2676) to request a paper form. Corn growers and eligible landlords will need to file a claim by October 12, 2018. Continue reading

Gleaning Unharvested Crops and Crop Insurance or NAP Coverage

 

35303424122_6f0e069251_o.jpg

Student farm at Penn State.  Image is by Penn State University

 

During the growing season, producers may allow various nonprofits to come on the farm and collect unharvested crops after harvesting. In many cases, it may be not economically profitable to harvest this unharvested portion, or the producer may have had to leave crops unharvested after meeting supply needs for a week. These crops might be left in the field to rot if not for the ability of nonprofits to glean these crops as donations to feed hungry Marylanders. I’ve previously written on liability when allowing gleaners on the farm, to read that post, click here. For those producers who have crop insurance coverage on these crops, is gleaning allowed on insured acres? The Federal Crop Insurance Corporation (FCIC) and the Noninsured Crop Disaster Assistance Program (NAP) has requirements that an insured producer should meet before allowing gleaning to take place on their farms. Continue reading