By Ashley Ellixson
On July 9, 2015, a Richmond Court judge dismissed a lawsuit by the Chesapeake Bay Foundation (Foundation) and other environmental groups against the Commonwealth of Virginia (Commonwealth) after the Virginia State Water Control Board amended the Virginia Pollution Abatement General Permit for Animal Feeding Operations on March 28, 2014.
The Foundation argued that the amendment failed to align with Commonwealth’s duties under the Constitution of Virginia, the Chesapeake Bay Daily Load, and the Virginia Watershed Implementation Plan by failing to impose mandatory livestock exclusion. Basically, the Foundation wanted the amendment to keep livestock out of streams.
One of the main topics the court addressed was the definition of the term “applied” as it appears in the amendment. The amendment reads:
E. The criteria for the design and operation of a confined animal feeding operation shall be as follows:
…
3. Adequate buffer zones, where waste shall not be applied, shall be maintained between areas where waste may be applied and (i) water supply wells or springs, (ii) surface water courses, (iii) rock outcroppings, (iv) sinkholes, and (v) occupied dwellings unless a waiver is signed by the occupants of the dwellings;
The Foundation argued that livestock dropping waste in waterways have “applied” the waste. The court found that “applied” as it appears in the amendment was ambiguous but that it “means the intentional application of manure into fields or other usage areas.” The court reasoned that “the legislative history of the statute, as well as the potentially absurd result of requiring operators to maintain records of random defecation by livestock” supported its finding. In short, the court found that “applied,” although ambiguous, surely referred to farmers spreading manure and not livestock relieving themselves.
References
Va. Code § 62.1-44.17:1