Farm Bureau Contested Case Challenge to Michigan’s 2020 NPDES CAFO General Permit – Michigan Farm Bureau, et al.; Docket No. 20-009773

Michigan Surface Waters at Risk – 2020 Michigan NPDES CAFO Permit Revisions Threatened

Livestock waste in Michigan’s surface water makes our inland lakes, streams, and our Great Lakes undrinkable and unsafe for recreation. Pathogens and parasites in livestock manure make people and animals sick.  Excess nutrients, especially phosphorus, from livestock manure destroy streams, cause fish kills, and help cause dangerous toxic algae blooms.  Downstream communities that get their drinking water from inland sources or from the Great Lakes pay the transferred cost of pollution in the form of upgrades to their municipal drinking water systems. 

August 15, 2018 – Discharge from liquid manure application on tiled field to tributary of South Branch, River Raisin. Sample analyzed by City of Adrian lab showed excess E. coli of 101,100/100mL, more than 300 times the existing TMDL limit for total body contact in this watershed.

August 15, 2018 – Discharge from liquid manure application on tiled field to tributary of South Branch, River Raisin. Sample analyzed by City of Adrian lab showed excess E. coli of 101,100/100mL, more than 300 times the existing TMDL limit for total body contact in this watershed. Photo Credit: ECCSCM

In 2014 we saw the human cost of pollution as 500,000 residents were without water due to a harmful algal bloom in Lake Erie. Unfortunately, Michigan has failed to meet its 2020 phosphorus reduction goals for western Lake Erie under its Domestic Action Plan and is unlikely to meet its 2025 goals under current conditions.

It’s imperative that we preserve Michigan’s strong NPDES CAFO permit – one of the few tools for controlling agricultural runoff – so we can prevent pollution from these megafarms, keep Michigan’s surface water safe and clean, and protect Michigan’s precious ecosystems. The water protection safeguards within the State NPDES 2020 General Permit renewal are at risk of being overturned by Farm Bureau and industry petitioners. This challenge is currently being reviewed by an Administrative Law Judge (ALJ).

Industry Petitioners are asserting two main grievances with the 2020 General Permit renewal.  They claim EGLE does not have the authority under state law to condition the 2020 permit the way it did and even if it did, those permit terms violate both state law and the Michigan and U.S. Constitutions.  They also claim that the restrictions in the 2020 permit are not grounded in science.

ECCSCM and other Environmental intervenors disagree with these assertions.  First, EGLE has delegated authority from the EPA to develop an NPDES permit that is protective of water quality. EGLE has similar delegated authority to oversee and protect water quality for things like wetlands and inland lakes and streams (Part 301 and 303 of NREPA). EGLE not only has the authority but a mandate under state and federal law to issue permits strong enough to protect water quality.

Second, the petitioners also assert that EGLE improperly passed ‘new’ rules under this permit without going through the rulemaking procedures. That is inaccurate. EGLE already has the authority to issue this NPDES permit, including the challenged conditions, under NREPA and existing rules. Changing the standards within the permit (e.g. new requirements for setbacks, reporting information, etc.) does not equate to promulgating new rules.

Third, the science clearly shows that water quality in Michigan is degrading, and CAFOs significantly contribute to that trend, especially in certain watersheds. As Michigan’s Adaptative Management Plan for Lake Erie states, “Heidelberg University’s National Center for Water Quality Research has monitored and analyzed River Raisin annual and spring TP loads and SRP loads since 1999. Analysis of data from 2019 indicates that an apparent declining trend from 2008 to 2016, that was reported in the 2018 DAP, did not continue, while TP loads appear to have increased since then, or at least returned to approximately the long-term average.” The changes in the 2020 General Permit aim to reduce excessive, and unchecked nutrient applications to fields receiving CAFO waste. Along with more transparent reporting requirements, the 2020 permit implements more robust setback distances, minimizes the application of waste on frozen/snow covered ground, and restricts where CAFO waste may be applied in watersheds already impaired by nutrients and bacteria.

Solid manure application on snow-covered, frozen ground. South Branch – River Raisin TMDL reach. See next photo – on March 30, 2019, melting snow and manure ponding around tile riser which drains to the South Branch of the River Raisin. Photo Credit ECCSCM

Solid manure application on snow-covered, frozen ground. South Branch – River Raisin TMDL reach. See next photo – on March 30, 2019, melting snow and manure ponding around tile riser which drains to the South Branch of the River Raisin. Photo Credit: ECCSCM

Manure from field application shown in January 17 photo above on snow-covered, frozen ground melting into the orange tile riser pipe, which carries it through sub-surface drain tile to the South Branch of the River Raisin. Photo Credit ECCSCM

Manure from field application shown in January 17 photo above on snow-covered, frozen ground melting into the orange tile riser pipe, which carries it through sub-surface drain tile to the South Branch of the River Raisin. Photo Credit: ECCSCM

People downstream are impacted by excessive manure applications.  Great Lakes tourism is negatively impacted by closed beaches due to excess E. coli, and no sport fishing because of harmful algae blooms caused by excess nutrients.   Inland lakes summer tourism is affected in the same way.  The majority of Michigan’s citizens get their drinking water either directly from the Great Lakes, or from inland surface water sources.  The cost of degraded source water is externalized by polluters to the detriment of downstream municipalities and residents. Contaminated surface water is unsuitable for crop irrigation.  Nutrients and bacteria in manure contribute to the destruction of aquatic life (plant and animal) and the eutrophication of tributary streams.

Inlet to Lime Lake. Stream passes through manure application fields. Lime Creek/Bean Creek/Tiffin/Maumee watershed. Sample analyzed by MDEQ lab showed E. coli at 730/100mL, more than twice the limit for total body contact, in this TMDL watershed. Samples analyzed by Helix Biolab showed two genera of Cyanobacteria (harmful algae), two cyanotoxins, and Bacteroides with cattle DNA. Grass buffers along stream bank. Photo credit ECCSCM

Inlet to Lime Lake. Stream passes through manure application fields. Lime Creek/Bean Creek/Tiffin/Maumee watershed. Sample analyzed by MDEQ lab showed E. coli at 730/100mL, more than twice the limit for total body contact, in this TMDL watershed. Samples analyzed by Helix Biolab showed two genera of Cyanobacteria (harmful algae), two cyanotoxins, and Bacteroides with cattle DNA. Grass buffers along stream bank. Photo credit: ECCSCM

While the 2020 CAFO General Permit is in contested case status, the Department maintains use of the 2015 General Permit standards.   All parties – EGLE, the Farm Bureau, and Intervenors have filed initial testimony and responded to other testimony through rebuttal.  After cross examination, the record will be closed, and the parties will have an opportunity to brief their arguments based on the contents of that record.  We do not yet have a final briefing schedule, but it will likely take several months to complete briefing. After briefing is complete, the Administrative Law Judge (ALJ) will issue a decision on the permit.  There is no prescribed time frame for this decision, but with a case this complex, it will likely take him several months to reach conclusions.  Once the ALJ issues the permit, it will go to the EGLE Director for signature.  There is then a possibility that the permit would go to the review board, who would have an opportunity to overrule both the ALJ and the EGLE Director. In other words, the ALJ decision is just the first step in a longer procedural process to getting a final permit.

 

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