Does the Michigan Department of Environmental Quality's (DEQ) rule regarding the issuance of wastewater discharge permits to large concentrated animal feeding operations (CAFOs) apply to CAFOs that have a mere potential to discharge, or does the rule only affect CAFOs with actual discharges or those that intend to discharge?

That's the question being posed to the DEQ by a united group of agricultural organizations and individual CAFO operators who contend the DEQ does not have the federal or state legal authority to require a National Pollutant Discharge Elimination System (NPDES) permit of a CAFO that does not have an actual discharge and does not intend to, other than an agricultural stormwater discharge.

Crockery Creek Turkey Farm, LLC;  Four D Farms, LLC; Michigan Allied Poultry Industries; Michigan Cattlemen's Association, Michigan Corn Growers Association, Michigan Farm Bureau, Michigan Milk Producers Association, Michigan Pork Producers Association and the Michigan Soybean Association have joined in requesting a declaratory ruling by the DEQ. The Michigan Administrative Procedures Act provides that any state agency can be asked to determine the applicability of a rule to a certain party or parties. In this case the request is being made by agricultural organizations that have members affected by the DEQ CAFO rule (323.2196) and farm owners individually impacted.

The DEQ has said all Michigan CAFOS must obtain an NPDES permit by 2008. The parties requesting the declaratory ruling argue that this is unlawful because a 2005 Second Circuit Court of Appeals decision (Waterkeeper Alliance, Inc. vs. Environmental Protection Agency) held that the federal Clean Water Act only requires NPDES permits of CAFOs with actual discharges, not those with a potential to discharge.

"The DEQ mandate that all CAFOs obtain NPDES permits is in violation of the federal Clean Water Act unless the DEQ rule is interpreted to apply only to CAFOs with actual discharges," says attorney Andrew Kok, who is representing the parties making the declaratory ruling request.

At the state level, the DEQ rule, unless interpreted to only apply to CAFOs with actual discharges, fails Michigan's test for determining the validity of an administrative rule on multiple fronts, says Kok.

The ag organizations and producers contend that the rule does not comply with the legislative intent of the state statute that enables the DEQ to implement the NPDES permitting program (Part 31 of the Michigan Natural Resources and Environmental Protection Act, or NREPA.)

"The intent of the Legislature in enacting Part 31 of NREPA was very plain. Discharge permits are to be obtained only by anyone with an actual or proposed discharge. If a person does not have a permit, they are not allowed to have any regulated discharge at all," says Kok.

The one exception made by the Legislature was requiring that all ocean-going vessels engaging in port operations obtain an NPDES permit from the DEQ, Kok adds. "The Michigan Legislature itself chose not to demand that farms, factories or any other person with a mere 'potential' to discharge into the waters of the state obtain a wastewater discharge permit. The Michigan Legislature has chosen instead to simply forbid anyone from having a discharge without a permit."

The ag groups and producers also say that the DEQ's rule fails because it's arbitrary and capricious.

"The DEQ has consistently indicated that its CAFO rule applies to all CAFOs solely out of a need to comply with federal law, yet by the time the DEQ rule was promulgated, federal law was clear that regulating potential discharges violated the Clean Water Act," says Kok.  "Outside of this invalid explanation, the DEQ has no reasoning to base its rule on.”

He adds, “There is no evidence that farms without discharges cause pollution There is no evidence that the environment is protected more by issuing discharge permits to non-dischargers, rather than by enforcing the state statute's strict 'zero-discharge without a permit' standard."

The request for a declaratory ruling was submitted to the DEQ on Wednesday. Michigan law mandates that the agency respond within 60 days upon receipt of a request.

MichiganFarm Bureau