Updated: Jul 8, 2020
This post should not be construed as legal advice.
Earlier this week, three Washington dairies entered into an agreement which would potentially end an ongoing legal battle with various environmental groups. The settlement would require the dairies to double-line their lagoons, limit nutrient applications, and purchase bottle water or reverse osmosis filtration systems for neighboring residents. Many believe that this settlement could set a national precedent for concentrated animal feeding operations across the country. Let’s talk about these settlement agreements.
In a previous post, I highlighted the facts of at least one of the dairies. Back in January, a Federal district court ruled that manure could be a solid waste under the Resource Conservation and Recovery Act (RCRA). RCRA does not apply to agricultural waste used as a fertilizer or soil conditioners but the court found manure used in this case was not a fertilizer because it was applied without regard to the nutrient management plan, and manure stored in leaking lagoons was also considered a solid waste, as was the composting manure because it was leaking into the groundwater. To gain a better background on this see, Wait, Now You’re Telling Me Manure Can Be a Solid Waste?!?.
Now let’s turn to the proposed consent decrees. A consent decree is an agreement to settle a dispute between two parties. Typically with a consent agreement, the defendant will not admit guilt (in a criminal case) or liability (in a civil case). If the court accepts the consent decree, then the court will monitor implementation of the decree. At this point, the consent decrees in the Washington state dairies are only proposed and have not been accepted by the Federal district court. The Federal district court could potentially reject this settlement between the dairies and the environmental groups.
Each of the dairies — Cow Palace, LLC, Henry Bosma Dairy, and DeRuyter & Son Dairy, LLC — agreed to the same terms in their consent decrees. The dairies each agreed line their lagoons with a double liner to prevent further groundwater contamination, at a rate of 2 lagoons per year per dairy. The dairies also agreed to fund the installation of 14 new monitoring wells to determine the magnitude of groundwater contamination. Each dairy will also install a centrifuge separator to reduce nitrogen and phosphorus content of their liquid manure.
Environmental groups also gain the right to inspect all underground conveyance systems on the dairies. The dairies also agreed to install concrete aprons on water troughs, reduce water pooling in cow pens, scrape manure from the pens monthly from March to October, and grade the pens annually. Silage could only be stored on impervious surfaces and composting areas would be limited to 30 acres. Manure application on each dairy would be limited until residual nutrient levels drop below specified levels. Finally, the dairies would contribute to a fund to purchase bottled water or reverse osmosis filtration for neighboring residents.
Now that I’ve briefly laid out what proposed consent decrees do, let’s talk about why we should care about them. This is one of the first cases which has applied RCRA to land applications and manure storage. The case demonstrates that RCRA potentially has implications with animal feeding operations.
Potentially, animal feeding operation operators would need to test to make sure manure is not leaking into groundwater or other water sources. For Maryland, this means storing poultry litter on impervious surfaces and covering to prevent runoff. For dairies, this potentially means lining lagoons. Operators would also need to conduct land application of manure according to nutrient management plans and not at levels exceeding their nutrient management plans. But currently, it’s important to remember this is one decision and consent decree in one Federal district court and may have no implications beyond that area.
It’s also important to note this is currently only one lower court decision in Washington State. The decision would potentially have precedential value (i.e. guide in future decisions) in other Federal court decisions in the 9th Circuit (where Washington is located), but possibly not beyond the 9th Circuit (such as the 4th Circuit where Maryland is located). Time will tell the true impact of this decision and these proposed consent decrees.