A state Supreme Court has ruled that the Department of Environmental Conservation’s pollution discharge permit for some large dairy and other livestock farms in the state does not fully comply with the federal Clean Water Act.
Multiple environmental groups filed a lawsuit against the state agency last year, claiming the permit violated the act. Albany Supreme Court Justice David Weinstein mostly agreed Monday.
His ruling means the DEC will need to adopt a new concentrated animal feeding operation, or CAFO, permit for farms that discharge into a water source by October. Farms currently covered by the permit will remain covered, the DEC said Thursday, until a new one is issued.
CAFOs often refer to dairy farms with 300 or more cows, though it can be for other kinds of livestock, too. The farms are regulated by the DEC, with a permit detailing proper manure storage and nutrient management plans to protect water quality.
There are two kinds of CAFO permits: one for operations that discharge directly into the surface waters of New York state, and one for those that do not. The permit in question is for the former, under which DEC said 21 farms operate. Waterkeeper Alliance, one of the environmental groups on the lawsuit, however, says that number is closer to 250.
DEC released updated CAFO permits early last year, and a number of environmental groups including Riverkeeper, Sierra Club and Waterkeeper Alliance, filed a lawsuit against the state agency, arguing that the DEC violated the Clean Water Act.
The groups specifically highlight an apparent lack of public participation in the permit review process for individual farms. They also take issue with how agricultural environmental management planners hired to create a farm’s comprehensive nutrient management plan are also the ones to certify that a plan complies with the federal water rule.
Weinstein agreed with some of the groups’ points in a decision released Monday.
Regarding the farm’s planners being in charge of deciding whether a farm is in compliance with the act, Weinstein said it was “an inherent conflict of interest.”
“(The DEC) portray AEM planners as a ‘corps of experts,’ certified by the state after a rigorous testing process and subject to a professional code of ethics,” the decision read. “But they are, nevertheless, private consultants retained and compensated by the CAFOs, and there is no apparent legal reason why a CAFO cannot discharge a planner if it is unhappy with its review, or decline to hire one with a reputation for stringency.”
Weinstein also cited a lack of public participation and disclosure of a farm’s individual nutrient plans, which he said violates the Clean Water Act.
According to the decision, the DEC will issue a revised federally compliant CAFO permit by Oct. 23, and the DEC will not grant coverage to any CAFO applications in the works. A conference call is set for Monday to discuss the impacts of the decision.
Mike Dulong, an attorney for Riverkeeper, said the organization is thrilled with the judge’s decision.
“The opinion is very much focused on state and public oversight of these operations, and I think, personally and on behalf of Riverkeeper, there is a way to do, to make agriculture sustainable and make it safe for water quality, and that’s what we’re looking for here,” Dulong said. “A little bit more public and state oversight will make that possible.”
Steve Ammerman, manager of public affairs for the New York Farm Bureau, said the agency is still reviewing the decision to see what it will mean for its members.
“Our general counsel is taking a look and reading the judge’s comments, certainly having a discussion with DEC as well,” he said. “The ball is in their court.”
Ammerman added that the bureau is confident in the strength of the current permit.