Cow Palace Decision: A Parade of Horribles

Updated: Jul 8, 2020


Cows in a barn (Photo by Edwin Remsberg).
Cows in a barn (Photo by Edwin Remsberg).

This post should not be relied upon as legal advice.


Back in February, I posted a summary of the Federal district court opinion in the Cow Palace case. This decision found manure to be a solid waste under the Resource Conservation and Recovery Act (RCRA) when the manure was applied beyond whatwas required by the nutrient management plan and plant needs and was leaching into groundwater from improper designed storage facilities. See www.aglaw.umd.edu/blog/wait-now-youre-telling-me-manure-can-be-a-solid-waste to view the post. Recently the Cow Palace and two other dairies entered into a consent agreement with various environmental groups who were suing them for the alleged violations (see my overview of the settlements here: www.aglaw.umd.edu/blog/settlement-reached-in-washington-state-dairy-cases and Ashley’s overview here www.aglaw.umd.edu/blog/washington-dairies-enter-into-consent-agreements).

These consent agreements and the district court opinion has caused some concerns among the ag community. Consent agreements carry no precedential value (meaning a court cannot rely on the agreements in a future decision), but the district court opinion does. The district court opinion could potentially be relied on by other courts (even those in Maryland) with far reaching ramifications.

Overhead shot of a farm (Photo by Edwin Remsberg).
Overhead shot of a farm (Photo by Edwin Remsberg).

Let’s consider some of those far-reaching ramifications. The district court found that when manure is applied without regard to a nutrient management plan and without regard to the plant needs, then the manure is discarded and becomes a solid waste. The Cow Palace Dairy never tested the manure to determine the actual nutrient requirements before applying and the dairy failed to account for residual nutrients in the soil to determine application rates.

Most producers in Maryland already apply manure and other nutrients according to their nutrient management plan. Producers in other states may only be required to utilize a nutrient management plan when operating a concentrated animal feeding operation (CAFO). The Cow Palace case potentially creates a new national requirement to follow your nutrient management plan or face additional penalties under Federal law, in this case RCRA. Cow Palace may also force producers in states without nutrient management requirements to get a nutrient management plan and apply nutrients accordingly.

One potentially interesting issue is the fact the dairy in Cow Palace failed to consider residual nutrients when determining application rates. In Maryland, a soil test