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

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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

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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

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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).

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

 

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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

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

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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

 

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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

Pesticide Drift and Your Legal Liability

 

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Image of round bales in a field.  The image is by Tana Griffith 

 

I recently contributed a column to Progressive Forage magazine for the April 2018 edition.  The column covers issues associated with pesticide drift and forage production.  The column covers previous court decisions involving pesticide drift liability to give an applicator a sense of what courts are looking at in determining liability.  Finally, the column covers what you should do if you suspect drift damage. Continue reading

Recent Court Decision Highlights Why You Should Update Life Insurance Policies After A Divorce

The article is not a substitute for legal advice.

Many of you may not remember John McLaughlin the host of the long-running public affairs show The McLaughlin Group, for those that do not the video clip above will give you a taste of his show. McLaughlin passed away in 2016. Before passing away, Mr. McLaughlin had divorced Christina Vidal, his wife, in 2010. After this divorce, Mr. McLaughlin neglected to change two life insurance policies beneficiaries from his now-ex-wife to an immediate family member. In late 2017, the federal district court in D.C. ruled that his estate is the sole beneficiary of the life insurance policies. The outcome, in this case, was favorable to the estate, it is an important reminder that you need to update beneficiaries after important life events. Continue reading

Ninth Circuit Upholds a Portion of an Ag Gag Law

 

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Image by Jess Johnson.  Image of cow looking at the camera.  Image via flickr.com

 

The article is not a substitute for legal advice.

In 2014, Idaho’s legislature approved the Interference with Agricultural Production law. This law was recently upheld in part and found unconstitutional in part by the Ninth Circuit Court of Appeals. The decision reverses part of a federal district court opinion finding the entire law unconstitutional (Animal Legal Defense Fund v. Wasden). Former Extension legal specialist in AREC, Ashley Ellixson, wrote an overview of the district court’s opinion that you can read here. Continue reading

Developing a Contact for Your Custom Service Operation

 

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Hay bales in field.  Image is by Jeanne via Flickr.

 

I recently I contributed an article to Progressive Forage magazine for the January 2018 edition.  The article focuses on developing a contract to ensure you get paid for services in the coming season.  This is an important issue that producers and custom operators should consider before the new season is upon us. The article highlights what is required in the majority of states to be a valid contract.

Continue reading