ALBANY, May 1, 2018 — The state must rewrite a portion of its manure control program for giant dairy farms because it violates federal law by outsourcing required oversight to private contractors and by imposing undue confidentiality, a state judge has ruled.
The April 24 court decision strikes down the state Department of Environmental Conservation’s general permit for large concentrated animal feeding operations, or CAFOs.
Issued five days after President Donald Trump’s inauguration, the state’s general permit rules coincided with the administration’s push to slash regulation.
But Acting Supreme Court Justice David Weinstein found that the state’s Jan. 2017 rules violate the federal Clean Water Act, and he gave the DEC six months to fix the problems with a revised permit.
“The Court recognized that DEC cannot outsource environmental protection to private planners paid for by industrial agriculture and keep pollution prevention plans secret from the public,” said Suzanne Novak of EarthJustice, an attorney for Riverkeeper and other environmental groups that sued the DEC in March 2017.
CAFOs typically refer to dairy farms with 300 or more cows, but sometimes they house other livestock, including beef cattle, swine, horses, sheep, chickens, turkeys and ducks.
The state divides CAFOs into small, medium and large categories. It also has rules for those that discharge directly into surface waters and those that don’t.
Properly regulating large farms will be an important front in the ongoing statewide war against the rapid spread of toxic cyanobacteria, also known as HABs or blue-green algae, several experts said.
In one day, a cow can produce up to 120 pounds of manure. It is rich in nitrogen and phosphorus, which are primary fuels for so-called HABs.
CAFOs store that manure in pits before spreading it on fields as fertilizer. If the manure is improperly applied, it tends to run off into streams and eventually into lakes, where surging nitrogen and phosphorus can promote “blooms” of cyanobacteria.
“If DEC isn’t following Clean Water Act in regulating these CAFOs the way they’re supposed to be regulated, we’ve got bigger problems than we thought we did,” said Edwin Przybylowicz, coordinator of 80 volunteers for Seneca Lake Pure Waters Association who monitor the lake for HABs outbreaks.
In recent years, HABs have been a growing menace in the Finger Lakes and other state waterbodies. People exposed to HABs can suffer skin and lung irritation and possible long-term nerve damage. HABs are life-threatening to dogs and other animals, and they place public water supplies in jeopardy.
Some but not all types of cyanobacteria need nitrogen-rich water to grow, but all of them thrive in phosophorus-rich water, Przybylowicz said.
It is not know for certain the degree to which liquid manure spills contribute to HABs, but the link itself is generally accepted.
Last year a large CAFO suffered two major spills, one of which reached Cayuga Lake. In 2015, Riverkeeper noted, more than 40 cases of water contamination from CAFO animal waste were documented in New York.
In February 2014 a large spill of liquid manure flowed directly into Owasco Lake, causing a visible plume. Measurements from the stream that carried the oozing manure showed phosphorus at 7,930 parts per billion, roughly 400 times the official level of concern.
That month, the chair of Owasco Lake Watershed Management Council wrote the DEC to express its dismay. “It is our understanding that this liquid manure was applied … on frozen and snow-covered ground,” the letter said. “On that day, the weather had forecasted that snow melt and significant precipitation would occur in the days following the spreading activity. Spreading manure under these conditions appears to (violate the law).”
Since that spill, Owasco has been particularly hard-hit by HABs outbreaks, and 2016 cyanotoxins were reported in the city of Auburn’s public drinking water, which is drawn from Owasco Lake. Last summer cyanotoxins were detected in the raw water Syracuse draws from nearby Skaneateles Lake.
Under the Clean Water Act, the state has the responsibility to review and approve CAFOs’ polution control programs, including manure spreading.
Judge Weinstein found that the DEC had impermissibly waived that mandate when it allowed private contractors — the DEC calls them state-certified “AEM planners” — to act on its behalf.
“They are private consultants retained and compensated by the CAFOs, and there is no apparent legal reason why a CAFO cannot discharge an AEM planner if it is unhappy with its review, or decline to hire one with a reputation for stringency,” Weinstein wrote in his order. “In short, AEM planners have an inherent conflict of interest…”
Weinstein also faulted the DEC for allowing CAFOs to offer public “outlines” of their nutrient management plans while permitting them “to shield the more comprehensive version of that plan from public view.”
In addition, the state’s general permit does not require the DEC’s prior review on nutrient plan changes, as called for in EPA regulations.
The EPA had repeatedly pressed the DEC to reform its CAFO regulation process in 2015, 2016 and early 2017. But state officials ignored key elements of those recommendations regarding oversight and confidentiality when they issued the general permit on CAFOs in January 2017.
Then, without explanation, the EPA reversed course.
On May 25, 2017 — three months after the U.S. Senate had approved Scott Pruitt as President Trump’s EPA administrator — the EPA sent to DEC a two-paragraph letter that praised a public document the DEC prepared (“Frequently Asked Questions,” of FAQs) to explain its new CAFO general permit.
The FAQs “is consistent with the federal requirements,” said the brief letter from the EPA’s Alyssa Arcaya to the DEC’s Jacqueline Lendrum. “Thank you to you and your staff for taking the time to develop this important material and for satisfying our earlier concerns.”
The DEC later cited the letter as justification for its controversial general permit and attempted to use it as ammo in its looming court battle with Riverkeeper.
But Judge Weinstein found that the EPA letter had sidestepped, not satisfied, the EPA’s previous concerns, which had been thoroughly developed and documented.
In his order, the judge said that because the federal agency had failed to explain its about-face he had chosen to disregard the Arcaya letter.
Judith Enck, a former EPA supervisor for New York and New Jersey, said the May 2017 EPA letter reflected a dramatic shift in EPA policy under the Trump Administration.
“This is a glaring example of Scott Pruitt’s ‘cooperative federalism,’ which he often references,” Enck said. “In practice, it means that when states are adopting policies that are not fully protective of the environment, EPA should just look away. Environmental protection and environmental enforcement are not priorities for the Trump EPA.
“I applaud the judge’s decision,” she added. “What would have happened if the environmental community did not litigate this?”
Riverkeeper filed its suit against DEC Commission Basil Seggos with several other plaintiffs: Cortland-Onondaga Federation of Kettle Lake Associations Inc., Sierra Club, Theodore Gordon Flyfishers Inc. and Waterkeeper Alliance Inc.
Asked whether the DEC planned to appeal Weinstein’s order, a spokeswoman for the agency said, the DEC “is reviewing the decision.”
The DEC noted that the January 2017 general permit for CAFOs will remain in force for all currently covered farms until a modified permit is adopted. The agency said the court ruling applies to only 22 of the state’s several hundred CAFOs. The DEC declined a request to name them and suggested the option of filing a Freedom of Information letter.
Riverkeeper said that as many as 250 CAFOs might eventually be covered under the revised general permit.
Meanwhile, communities that host CAFOs were eagerly awaiting stricter state enforcement.
Several of them (the towns of Camillus, Ithaca, Lafayette and Ulysses and the City of Ithaca) had filed an amicus curiae brief on behalf of the Riverkeeper plaintiffs.
“Compounding DEC’s failure to enforce the Clean Water Act,” the brief said, “municipalities are limited in the actions they can take to prevent or remedy (CAFO) environmental threats, but must … respond after the fact and absorb the costs for water treatment (and) pollution cleanup.”
Among the complaints cited by the filers:
— Ulysses (Tompkins County). In May 2016 an out-of-town CAFO owner spread 10,000 gallons of liquid manure per acre on his Ulysses property, followed by health complaints from nearby residents.
— Lafayette (Onondaga County). Local residents were not allowed to review plans for a two-million gallon lagoon for liquid manure in a residential neighborhood. Freedom of Information requests for details on the CAFOs operations and plans “have not been satisfied.”
— Camillus (Onondaga County). CAFO operators from other towns have purchased property they use for manure spreading. Odors are unpleasant and asthma sufferers have complained. State officials say the town has no authority over manure spreading practices.
— Ithaca (Tompkins County). Manure spreading fields located outside Ithaca have drained into Cayuga Lake. In February 2017, a manure spill in the town of Lansing contaminated Salmon Creek and reached Cayuga Lake. “Ithaca is concerned that CAFOs, as a major source of phosphorus loading in Cayuga Lake, contribute to the rampant growth of algae and aquatic plants in the lake.”
The New York Farm Bureau did not respond to an email seeking comment on Weinstein’s order.