NC Appeals Court rules against NCDEQ in animal waste permit case
A state appeals court ruling could make it harder for environmental regulators to approve new permit requirements to protect water quality. The ruling affects how state agencies propose changes to permits for livestock farms and other industries. PRE’s Ryan Shaffer has the story . . .
Earlier this month, a three-member court of appeals ruled unanimously that certain items in the state’s new general permit application for animal waste management violated the state’s Administrative Procedures Act. In 2019, the North Carolina Department of Environmental Quality began the process to update permits for how various livestock farms store, use and dispose of animal waste. NCDEQ proposed more than 80 revisions. The NC Farm Bureau challenged just three of those changes, arguing they ought to have gone through a separate, and lengthier, review process. Michelle Nowlin, an environmental law professor at Duke University, says the ruling may impact how state executive agencies regulate industry more broadly.
“I think it's a really troubling impact in that it really slows down the process and makes a regulatory agency like DEQ much less nimble and able to respond to emerging crises in effective time frames.”
At the center of the case are changes to the general permit for animal waste management. To obtain this type of permit, farmers must meet certain requirements, like how to store animal waste and how much of that you can use to fertilize crops. Nowlin says general permits are different for different types of farms.
“There’s one for dry-litter poultry and one for wet-litter poultry operations. There’s one for hog production. There’s one for cattle and one for dairy. And the reason they do that is because the land management practices and animal husbandry practices, and waste management practices differ across those different categories of livestock facilities.”
General permits are the most common in North Carolina, more than 2,000 hog, poultry and cattle farms have one – and the requirements are revisited every five years to ensure compliance with newer state and federal laws. These changes go through the stakeholder process, which brings together farmers, regulators and environmentalists to draft a new permit. The process involves public comment periods and final approval by the environmental management commission. It usually takes about a year. But, the NC Farm Bureau argued that certain items in the new 2019 permit should have gone through the rule-making process – a similar, yet separate path for approval that takes longer – often two years.
“There is also a separate provision in the state Administrative Procedures Act that was, I think pushed through in the 2000s, that all environmental rules must go through an extra vetting process through the Rules Review Commission. So [the commission] has to make sure that there are not any special interests that had lingering problems with the content of the rule before it can take effect.”
The rule-making process is typically reserved for broad regulations, like how to define safe phosphate levels in water, while the stakeholder process and general permits are intended for the minute details – like what cattle farms must do to prevent fecal contamination in nearby waterways. The NC Farm Bureau sued saying three new requirements were so broad they warranted the longer rule-making process. Those requirements were that livestock farmers in floodplains install monitoring wells, file annual reports about their animal waste management operations to state agencies, and that phosphate loss assessments be made by certain farmers. Nowlin was not involved in the 2019 revisions, but was in previous rounds. She says the phosphorus requirements has had significant push back from industry representatives.
“My recollection from my earlier involvement in those stakeholder processes was that the industry really did not want to have to comply with any type of phosphorus standards and that is because the waste is very nutrient rich. It has very high levels of phosphorus, and it is much harder to meet a phosphorus nutrient standard than it is to meet a nitrogen nutrient standard. And so, there was always lots of opposition to having a phosphorus component to those nutrient management plans and to the general permit itself.”
Too much phosphorus can cause an increase in algae blooms and alter aquatic ecosystems. Lawyers on both sides say the appeals court ruling could require changes to general permits to go through the lengthier rule-making process. Environmentalists say that it could hamper environmental regulators and reduce their effectiveness in protecting water quality, while the NC Farm Bureau says it will lead to greater transparency and accountability.