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By Paul J Sniadecki, MLSA Board Member

In a 5-2 decision issued July 31, 2024, the Michigan Supreme Court ruled the Michigan Department of Environment, Great Lakes and Energy (EGLE) was within its power to issue stricter rules for Concentrated Animal Feeding Operations (CAFOs).

(See MICHIGAN FARM BUREAU v DEPARTMENT OF ENVIRONMENT, GREAT LAKES, AND ENERGY Docket No. 165166. Argued January 11, 2024 (Calendar No. 3). Decided July 31, 2024.)

The legal dispute started in April 2020 when EGLE issued a General Permit as part of the National Pollutant Discharge Elimination System (NPDES) program. The U.S. Environmental Protection Agency (EPA) delegated the power to administer the NPDES program to the State of Michigan, as it does for some other states. So, the state promulgated rules for obtaining NPDES permits under the Clean Water Act — all to achieve certain water quality standards.

The 2020 general permit imposed new conditions including phosphorous land application limits, setback provisions that require farms to keep a 35-foot-wide vegetated barrier where CAFO waste may not be applied along any surface water of the state, open tile line intake structures, sinkholes and agricultural

well heads. That includes roadside or any ditches that are conduits to surface waters of the state, according to the rules. EGLE also included a new NPDES permit condition that permit holders are not allowed to apply waste within 100 feet of surface waters of the state or conduits to such waters. In addition, the general permit also requires a three-month ban for applying waste to land or on transferring waste to other locations from January through March.

The new provisions were stayed as the legal dispute worked its way through the courts. The matter still has to be reviewed by an Administrative Law Judge (ALJ) in the contested case forum, where that appeal can now proceed again. The ALJ is tasked with determining whether the new rule is “based on sound science and environmental policy.”

As information, Michigan ranks sixth nationally in dairy production with 440,000 cows on 900 farms. Michigan also has 1.2 million hogs, 62 million broiler chickens, 53 million turkeys, and 65 million chickens laying eggs. The animals generate an estimated 4 billion gallons of liquid manure and 60 million tons of solid manure annually, according to EGLE. Operators are not required to treat their livestock wastes before they spread the mammoth tide of feces and urine on fields.

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