Case Dismissed

The Chesapeake Bay Foundation (CBF) sued the Virginia Department of Environmental Quality (DEQ) and the State Water Control Board to push for regulations that would require Virginia's largest livestock operations to fence off streams to keep their animals out of the water. CBF claimed that the Virginia Department of Environmental Quality (DEQ) and the State Water Control Board erred in approving a new 10-year Virginia Pollution Abatement permit governing the state's largest confined dairy, cattle, pig, and poultry farms that allowed for voluntary installation of stream exclusion fencing.

Oral arguments were heard by Judge C.N. Jenkins Jr of the Richmond Circuit Court on July 2, 2015. CBF arguing the state is failing to protect streams, rivers, and the Chesapeake Bay by allowing farm animals unfettered access to streams. Jon Mueller, who argued the case for CBF said stream exclusion should be required to maintain buffer zones between surface waterways and where manure is applied. The foundation claims the word “applied” should not be limited to material spread by farmers, but also include that deposited directly by livestock.

Judge C.N. Jenkins Jr. said the word "applied," while ambiguous in the law, surely referred to the work of farmers, not cow and dismissed the case.

It surprised and offended me that CBF would choose litigation on this topic to advance their agenda and try to dictate their preference for command and control regulations. That is not how things are done in Virginia. The U.S. Environmental Protection Agency had recently completed an evaluation of Virginia’s animal agriculture programs.The EPA’s assessment looked at Virginia’s implementation of federal and state regulatory programs that manage the large scale permitted concentrated animal operations, as well as the voluntary incentive-based programs for animal operations and crop operations to meet the nutrient and sediment reduction commitments in its TMDL Watershed Implementation Plan (WIP).

The voluntary programs are implementation of agricultural BMPs by farmers with the help of the Soil and Water Conservation Districts (where I volunteer) who oversee the cost share programs that are used to encourage farmers to use the BMPs on their farms. Thought there had been criticism that the agricultural programs were largely voluntary, the EPA found the programs to be effective and well implemented and monitored.

Last year the Chesapeake Bay Foundation (CBF) and the Choose Clean Water Coalition (CCWC) issued their report reviewing the results of the 2012-13 pollution reduction milestones against the states’ WIPs and found that “Virginia met its overall pollution reduction goals for 2013. Of the eight practices assessed, the Commonwealth met or exceeded its goals for fencing cattle out of streams and urban stream restoration, and was very close to meeting the goal for agricultural practices such as nutrient management, pasture management, and cover crops. Virginia fell short of its goals for forest buffers, conservation tillage, stormwater practices, urban nutrient management, and composite urban practices.” Yet, CBF sued us- maybe you want to reconsider where your donations go.