Farm Progress

Environmentalists say permit for new dairy farms would violate federal, state conservation laws.

Gary Baise 1, Environmental Lawyer/Blogger

April 11, 2017

4 Min Read
Toa55/ThinkstockPhotos

In January this year, the New York State Department of Environmental Conservation (DEC) announced it was issuing a new Clean Water Act (CWA) General Permit for concentrated animal feeding operations (CAFOs). New York’s Environmental Commissioner Basil Seggos said the new General Permit for as many as 267 dairies in the state would “…ensure proper management of nutrients while increasing water quality protection.”

Numerous environmental groups did not agree, and sued Mr. Seggos on March 27, 2017, in a New York state court claiming that New York’s CAFO General Permit would violate the federal CWA and New York’s Environmental Conservation Law.

Environmental plaintiffs claim the General Permit without mandated agency review also violates the CWA. And finally, they claimed New York’s General Permit violated the CWA because public participation is not required before issuing the permit. Environmental groups seek to have Mr. Seggos’ General Permit declared void and in violation of the law.

Who are they?
You will find the plaintiffs’ backgrounds interesting. The first plaintiff, Riverkeeper, Inc., “…is a member-supported watchdog organization with approximately 3,388 active members, many of whom reside near and/or fish, swim, and recreate in the Hudson River watershed…” Riverkeeper claims it has stopped many polluters; it is not clear who they stopped and they claim to influence land use decisions and they oversee agricultural watershed programs.

Another plaintiff is Courtland-Onondaga Federation of Kettle Lake Associations, Inc. This group claims that it advocates and educates to protect watersheds.

Sierra Club is a plaintiff. It says its mission is to protect the Earth and “…to educate and enlist humanity to protect and restore the quality of the natural and human environment;…”

After reading the missions of these environmental groups, one would believe that neither state EPAs or the federal EPA does anything to protect the environment.

Plaintiff, Theodore Gordon Flyfishers, Inc., is another nonprofit claiming its members use New York waterways and advocates for clean waters and healthy fisheries.

The last plaintiff, Waterkeeper Alliance Inc., makes a global claim of protecting thousands of miles of rivers and streams in North and South America, Europe, Australia, Asia, and Africa. (Having traveled to several of these areas, it might be important for Waterkeeper to focus on Asia and Africa rather than the United States.)

Individual permits
Plaintiffs clearly seek to have each dairy CAFO obtain an individual permit rather than be covered by a General Permit. The complaint never mentions the agricultural stormwater runoff exemption but suggests New York’s dairies are responsible for contaminating water bodies in New York State. The complaint alleges New York State in the spring of 2014 “…investigated no less than forty incidents of ground and surface water contamination resulting from industrial dairies disposing manure and other wastes on frozen, snow-covered ground.”

The complaint also alleges one industrial facility, but does not identify it as a dairy, discharged a large plume of liquid manure into Lake Owasco which is the drinking water source for over 40,000 residents in central New York. The complaint also claims an average dairy cow produces over 100 pounds of manure a day which is 100 times what a human produces. The complaint says each dairy has the “pollution potential of a major sewage treatment plant.”

Environmental groups do not seem to comprehend that manure is a significant fertilizer and are also probably unaware that human waste or sewage sludge, although treated, is also applied to soils.

This recent lawsuits by environmental plaintiffs is another attempt to seek individual permits for CAFOs. Like the Des Moines Water Works case, the plaintiffs’ lawyers demonstrate a lack of understanding of how the Clean Water Act works, particularly as it relates to agricultural operations and CAFOs. The complaint cites the CWA’s goal to eliminate all discharges of pollution into navigable waters. The goal was ridiculed at the time it was put into the CWA because everyone knew such a goal was unattainable.

The complaint does demonstrate, however, the environmental goals of shutting down all discharges and thus shutting down CAFOs if at all possible. This lawsuit bears watching.           

The opinions of the author are not necessarily those of Farm Futures or Penton Agriculture.

Gary Baise, a principal at OFW Law, specializes in Clean Water Act (CWA), Clean Air Act (CAA), National Environmental Policy Act (NEPA), Federal Insecticide, Fungicide and Rodenticide Act (FIFRA), and Solid Waste Disposal Act (SWDA) litigation as well as agricultural corporate governance issues. He serves as general counsel for U.S. Grains Council, Agricultural Retailers Association (ARA), and National Sorghum Producers (NSP). Gary was the first Chief of Staff to the first U.S. Environmental Protection Agency (EPA) Administrator. He owns a family farm in Jacksonville, Ill.

About the Author(s)

Gary Baise 1

Environmental Lawyer/Blogger

Gary H. Baise is an Illinois farmer and trial attorney at the law firm Olsson Frank Weeda Terman Matz PC specializing in agricultural and environmental trial issues in state and federal courts. He also serves as outside General Counsel for the U.S. Grains Council, Agricultural Retailers Association, National Sorghum Producers and counsel to the American Soybean Association.

 

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