Youngkin approves changes to animal waste rules aimed at reducing groundwater pollution

Dairy cows. (Photo by Scott Bauer/USDA Agricultural Research Service)

Virginia is on track to implement updated rules for animal waste created by certain farming operations, despite disagreement on how to regulate older earthen lagoons that pose a greater risk of releasing pollutants into groundwater.

Wednesday, Republican Gov. Glenn Youngkin approved the regulation changes for farmers who confine cows, pigs and more for 45 days or more within a year for dairy, eggs and meat production, as well as slaughtering.

Youngkin’s approval comes after the citizen-member State Water Control Board OK’d at a June 25 meeting the general permit for 108 animal feed operations in the state, meaning the rules in the one permit applies to all the operations. The current general permit is set to expire Nov. 15, so the revisions will take effect Nov. 16 for another 10-year period.

Waste from the animals can be stored in containers, concrete structures, or earthen lagoons, which are ponds of manure that use natural and chemical processes to treat it. The operators can treat the waste, recycle it or apply to their land as compost, among other purposes.

The rules are part of the Virginia Department of Environmental Quality’s program to regulate pollution discharges to prevent harm to the environment. One concern with animal waste is a potential to release nitrogen into groundwater that can feed into waterways leading to the Chesapeake Bay, which state and federal partners are struggling to clean up.

“We are focused on nitrogen discharges to groundwater, but bacteria would also be of concern,” said Patrick Fanning, Virginia staff attorney with the Chesapeake Bay Foundation, in an email to the Mercury.

There are also new requirements for nutrient management plans, an analysis for nitrogen and tools to determine a 100-year flood plain, or areas where groundwater can get inundated following heavy rain from intense storms likely to happen once every century and can lead to more groundwater connections that may flow up to the surface.

Some farmers had raised concerns over costs to any changes, said Betsy Bowles, DEQ animal feeding operations inspector. But other farmers were in support of the new rules, which incorporate previously less enforceable guidance on conditions for closing a waste storage device.

After receiving feedback from farmers and environmental groups, which primarily wanted more monitoring, DEQ didn’t make any changes to the rules, which were presented to the public in their final form for the first time at the June 25 meeting.

The Virginia Farm Bureau spoke at that meeting in support of the rules. The only other commenter, Fanning, with the Chesapeake Bay Foundation, called DEQ’s decision to not make one change, “a bad take and a bad interpretation of the law.”

The Bay Foundation, on behalf of several other organizations, submitted 10 requests, including requiring one groundwater monitor above and two groundwater monitors below earthen lagoons that were made before 1998. Those lagoons were grandfathered into regulations, and made without the more stringent requirements in place now, Fanning said, meaning “these are the lagoons that are most likely to be discharging to groundwater.”

Bowle’s said DEQ interpreted the law to mean that monitoring can only be required if there is already monitoring in place, Bowles added.

“Our understanding of the law, for being able to require more groundwater monitoring is if they are already monitoring but there is a change that we need to increase from one every three years to more frequent,” Bowles said.

But Fanning, in his comments to the board said DEQ’s interpretation “is simply not true,” pointing out the law states DEQ “may include in the permit or nutrient management plan more frequent or additional monitoring of waste, soils or groundwater as required to protect state waters.”

And, he added: “How would DEQ ever know if there is a problem if they’re not requiring monitoring?”

Fanning sought guidance from the Attorney General’s office, but Ross Phillips, senior assistant attorney in the OAG, sided with DEQ, and certified the rules.

Tony Banks, senior assistant director of the agriculture, development and innovation department with the Virginia Farm Bureau, said in an interview with the Mercury, his organization is supportive of DEQ’s interpretation of the law and that the older lagoons were built to engineering standards of the time.

“If we had an issue that would’ve become apparent at this point,” Banks said.

DEQ spokeswoman Irina Calos added the agency is “unaware of any complete lagoon failures at permitted farms in Virginia.” One time, during the 2004 Hurricane Gaston, floodwaters overtopped a lagoon that was in compliance with the permit.

“In general, DEQ does visual site inspections of waste storage structures to include lagoons every three years but can and does inspect sites more frequently as needed,” Calos said, adding that if there are concerns with noncompliance DEQ can require a permittee to obtain an individual permit with groundwater monitoring requirements.

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