The Michigan Chapter of the Sierra Club recently won a victory when the Michigan Court of Appeals agreed that the Michigan Department of Environmental Quality (DEQ) must enforce the runoff standards from the federal Clean Water Act on factory farms in Michigan.

The case, Sierra Club Mackinac Chapter v. Department of Environmental Quality, dealt with large farming entities known as concentrated animal feeding operations, or CAFOs, and the manner in which the DEQ issues permits for the use of manure as a fertilizer. There are 198 CAFOs in the state of Michigan, facilities where farmers raise and feed thousands of pigs or cows at a time, or upwards of 100,000 chickens or more. Such facilities generate an enormous amount of manure and farmers often try to reduce the amount they have to dispose of by using that manure as fertilizer on nearby pastures and farmland. The appeals court explained in its ruling:

In an effort to dispose of the enormous amounts of liquid and solid waste generated at CAFOs, many CAFO owners and operators apply manure as fertilizer to agricultural fields adjacent to the confinement facilities. Although nutrients in the manure can act as a fertilizer when CAFO owners or operators properly apply it, when such owners or operators excessively or improperly apply it, manure has a number of potentially harmful pollutants that can infiltrate surface and ground waters.

The DEQ has attempted to comply with the Clean Water Act by issuing a general permit to use such manure on farmland in the state and allowing CAFOs to merely apply to be covered under that general permit. The Sierra Club’s Michigan chapter challenged that policy, arguing that it violates the Clean Water Act’s requirements for public comment on each particular permit issued and that it lacks adequate safeguards to insure that each CAFO covered under the general permit is complying with the water-quality requirements of the federal law. They asked for a declaratory ruling by the DEQ, which issued a ruling denying their challenge. The environmental group subsequently filed suit in state court.

Continued – Anne Woiwode, director of the Sierra Club’s Michigan chapter, explained to the Michigan Messenger what the key issue was in the case:

The Clean Water Act is very clear that transparency is required about what people seeking water quality permits (known as National Pollutant Discharge Elimination System or NPDES permits) propose to do, so that both the agency (in this case the DEQ is delegated to run the program in Michigan) and the public could fully understand what the operators proposed to do when and if a permit was issued. The Court of Appeals agreed with us and issued a strong decision saying that CAFO permit seekers must provide what is called the Comprehensive Nutrient Management Plan (CNMP) with their permit application and it must be made available to the public to review.

The Sierra Club has been working to bring CAFOs in line with environmental laws since 1999, the year they filed a petition with the EPA asking them to remove the Michigan DEQ’s ability to administer the Clean Water Act permit program because the state agency refused to require CAFOs to get permits at all. In 2002, then-Governor Engler agreed to put in place a limited permit program for CAFOs, which was then put in place under Gov. Granholm. But the Sierra Club was not convinced that the limited permit scheme would adequately protect surface and ground water from contamination.

The Sierra Club has a program called Water Sentinels, a network of people around the state who monitor the water quality around Michigan’s CAFO operations, which are spread throughout the state. They have been continually monitoring the water quality in the waters near CAFOs all around the state and have continually found significantly elevated levels of phosphorous and nitrogen as well as E. coli bacteria in surrounding rivers and streams, all the result of leaching and runoff from these massive feedlots and the manure they dump.

The monitors turned those results over to the DEQ, which has resulted in citations being issued to some of the CAFOs in the state, but under this new court ruling the CAFOs will have to put in place a process for preventing this contamination in order to get a permit from the state. Equally as important, those plans will be subject to public scrutiny from groups like the Sierra Club to insure that they will actually achieve the desired result. Woiwode says this is a crucial step in protecting Michigan’s environment:

The Court of Appeals decision upheld one of the most important concepts behind our laws designed to protect the environment: that the public has a right to get information and provide input into environmental decisions made by government agencies that may affect natural resources, public health and our quality of life.  Transparency in government, especially when it comes to issues of pollution and public health, has always proved to be the best and quickest way to assure that the public’s right to a clean and healthy environment are protected.