A coalition of seven Michigan agricultural organizations and more than 120 farmers say, “Enough is enough,” and filed an appeal to the Michigan Office of Administrative Hearings and Rules, challenging the Michigan Department of Environment, Great Lakes and Energy’s revised permit for large livestock farms that took effect on April 1.
Filed on May 26, new requirements under a revised EGLE National Pollutant Discharge Elimination System (NPDES) permit are being challenged for weak or absent connections to science-based environmental benefits while also ignoring basic agronomic management principles, according to Laura Campbell, manager of Michigan Farm Bureau’s Ag Ecology Department.
“Throughout the NPDES permit review process and public comment period, farmers have expressed ongoing concerns over the lack of factual justification for many of the new permit requirements,” Campbell said. “Unfortunately, the final permit is still considered overly burdensome, increasing farm costs and threatening their economic viability.”
The coalition, which includes Michigan Farm Bureau, Michigan Milk Producers Association, Michigan Pork Producers Association, Michigan Allied Poultry Industries, Dairy Farmers of America, Select Milk Producers, Foremost Farms and more than 120 individual NPDES permitted farmers, has retained Michael Pattwell and Zach Larsen of the Lansing-based Clark Hill law firm to represent them in the proceedings.
MFB Attorney and Assistant General Counsel Allison Eicher said the filing requests an evaluation of the legality and conditions imposed by the NPDES permit and its adverse impact on Michigan farmers and food production.
“The appeal process is not a lawsuit but resembles a trial that takes place within the Michigan Department of Environment, Great Lakes and Energy,” Eicher said. “It may also be referred to as a ‘contested case challenge’ or “administrative challenge.’”
According to Eicher, the appeals process will involve expert testimony from interested stakeholders, both for and against the new NPDES regulations.
Following the hearing, an administrative law judge will make a final decision on the agricultural coalition request to invalidate the challenged provisions and strike them from the new NPDES permit requirements.
Provisions challenged in the appeal include:
· The arbitrary restriction on the amount of phosphorus in the soil to which manure can be applied.
· The mandated installation of permanent, 35-foot vegetative buffer strips around every surface water, tile-line intake and ditch located on any land to which permitted farm manure nutrients are applied, in addition to the existing 100-foot prohibitions from applying manure nutrients from those sites. The permit invalidates work of the Michigan Agriculture Environmental Assurance Program by denying environmentally conscious and compliant farms the program’s promised benefit.
· The permit enforces additional restrictions, some of which are unspecified, based on a farm’s location within a Total Maximum Daily Load watershed.
· A virtual ban on wintertime land application of manure for both permitted farms and non-permitted farms receiving manure from the permitted farms.
The filing also alleges the permit conditions exceed the department’s regulatory authority; are unlawful under the U.S. and Michigan Constitution; and contradict state and federal law regulating large livestock farms.
“The 35-foot mandate, specifically, severely limits the land that can be farmed by crop farmers and denies permitted farms the ability to apply manure nutrients in an environmentally and agriculturally beneficial manner,” Campbell said.
“Michigan regulations for livestock farms are already more restrictive, far exceeding federal requirements and regulations in other states, putting our farmers at a competitive disadvantage – this new permit only makes matters worse.”
While Michigan farmers are in support of clean water and follow Generally Accepted Agricultural Management Practices or GAAMPs to protect the environment, MFB President Carl Bednarski said the new NPDES permit requirements are a concern for all of Michigan agriculture – including livestock and crop farmers.
“Throughout the development phase of this draft permit, Michigan Farm Bureau, the state’s livestock industry, along with technical staff from Michigan State University and USDA’s Natural Resource Conservation Service provided recommendations to EGLE staff,” Bednarski said. “Unfortunately, the final permit is a demonstration of government overreach and regulatory creep that will be economically catastrophic to Michigan agriculture, while providing little, if any, environmental improvements.”
Campbell said the appeal process will allow ag coalition members to share the environmental successes of Michigan agriculture through the state’s voluntary Michigan Agricultural Environmental Assurance Program.
“Michigan farmers have kept millions of pounds of nutrients on fields and out of waterways with innovative practices, working hard to be part of the solution to protect water quality,” Campbell said. “From research to education and implementation, Michigan farmers have consistently demonstrated their efforts to protect water quality while producing food, fiber and fuel.”
According to Campbell, more than 5,000 farms have already been MAEAP verified by adopting proactive and effective practices that reduce erosion and runoff into ponds, streams, and rivers.
“Farms participating in that program have produced impressive results for water-quality protection,” she said.
As a direct result of MAEAP, Campbell said 1.26 million acres of Michigan cropland are covered under nutrient management plans. Producers have also installed filter strips, planted more than 200,000 acres of cover crops on annual basis, and now utilize conservation tillage and no-till farming practices on 900,000 acres to reduce soil erosion and potential nutrient run-off.
“All of these efforts combined have reduced nutrient run-off, including 3 million pounds of phosphorus and another 6.7 million pounds of nitrogen not being discharged into our state’s waters,” Campbell said. “We would prefer EGLE work with the industry to develop realistic NPDES permit standards that balance protecting our clean water resources while maintaining the economic viability of Michigan agriculture.”