Editorial: March-April 2015
March 16, 2015 by Marg Land
Keeping abreast of the latest legal happenings involving manure application and nutrient management in the U.S. is enough to give a person a migraine.
In late December 2014, the Wisconsin Supreme Court released a decision that had many livestock farmers scrambling to review insurance policies. The court reversed a past decision in a case involving a dairy producer and an insurance company. In the court’s decision, manure that contaminates a well is a pollutant and not covered under a farm’s general liability insurance policy.
With this ”precedent setting” ruling, many livestock operations in Wisconsin who relied on a standard liability policy were suddenly left without coverage for claims involving well contamination from manure. And law firms across the state were quickly contacting their agricultural clients, urging them to review their insurance policies.
“It is critical that you evaluate how your policy defines a ‘pollutant,’ how policy exclusions would apply to your operation, and whether you have additional coverage (such as specialized pollution coverage) that may be able to provide insurance coverage for damage caused by manure,” stated law firm Michael Best & Friedrich in an alert to clients.
A few weeks later, the U.S. District Court for the Eastern District of Washington ruled that manure from a Yakima Valley dairy should be treated as a solid waste under the Resource Conservation and Recovery Act. It was the first time the act had ever been applied to land applied manure.
According to Christopher Bryant, a lawyer with Bergeson & Campbell, P.C., a Washington, DC, law firm, the court found that manure can be considered a solid waste under the RCRA if it is applied to the land without regard for the nutritional needs of the crop or stored in such a way that results in release of the manure to the environment.
“The case could have major implications for concentrated animal feeding operations as it would subject certain manure applications to regulation as solid waste,” Bryant stated in an opinion piece on the ruling. “Given the resounding implications of this decision, it is almost a certainty that industry groups will appeal the decision and seek to have it reviewed by the U.S. Court of Appeals for the 9th Circuit. If the Appeals Court upholds the ruling, it could force CAFO operators that do not have Clean Water Act permits to seek such permits or to ensure that their surface impoundments meet RCRA regulations.”
On top of this, state and local legislators in Iowa, Ohio, and Wisconsin are grappling to pass bills that would see a tightening of manure application laws while, in some cases, cutting budgets to programs that help farmers and the environment. While the iron fist brandishes its legislative stick, the carrot is being removed.
Farming has never been a career choice for those slow to adapt. But it would seem these recent legal decisions mean operators might have to add paralegal and state lobbyist to their already crammed skill sets.
NOTE: The January/February 2015 issue of Manure Manager featured a stunning photo supplied by Prestige Air Photo in the Western Feedlots feature on pages 6 to 10. I’d like to thank them for allowing us to use the image.