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Environmental Conservation Law Permit (ECL) or Clean Water Act Permit (CWA), what’s the controversy about?

By Karl Czymmek, Senior Extension Associate, Cornell University

In early 2019, a previous version of this article was submitted to the op-ed/guest editorial department of various newspapers but it was not selected for printing. I continue to see evidence of misunderstanding and incorrect information circulating regarding the NYS CAFO program particularly in relation to changes based on a 2018 court order. It is my intention that the information below will help clarify a few things.

Based on my 20 years of experience working closely with state and federal agencies and the farming community on many matters relating to the Concentrated Animal Feeding Operation (CAFO) Permit program, I believe significant progress has been made and that it is important for New Yorkers to get an accurate picture of the permit process and the lengths regulated livestock farms go to protect the water all New Yorkers depend on.

Under the NYS CAFO permit, farms are required to follow and regularly update a Comprehensive Nutrient Management Plan (CNMP) prepared and certified by third party planners in accordance with USDA-NRCS conservation practice standards which include Cornell University nutrient management guidelines incorporated by reference. In a 2018 court ruling (more on this below) and in various reports, a conflict of interest question has been raised in relation to the permit system reliance on third-party planners hired by the regulated CAFO farms. This question misses a key issue: EPA rules allow a farm to prepare their own pollution prevention plan and do not prescribe particular standards or limits for these plans in any significant detail. In this context, it makes sense to have agency review. However, NYS does not allow permitted farms to prepare their own plan. Over the last 20 years, DEC has developed a detailed permit framework that has many checks and balances in place. The system ensures a relatively uniform plan based on the specific situation and location of each farm, considering multiple factors like a farm’s facilities, land base, management, soil characteristics and location of streams. Certified planners are required by the regulations to update the CNMPs regularly and they are in close communication with farmers during the year to make sure recommendations for fields and farmstead facilities are current, effective at environmental protection, and compliant with the permit.

The certified planners and supporting team members are skilled individuals with familiarity of the conditions on each farm. Planners are jointly certified by both USDA and NYS Department of Agriculture and Markets, must continuously update their training, are required to participate in a quality assurance program, and their work is subject to periodic inspections of their clients by DEC staff. They must also prepare farm plans based on the methods prescribed by USDA and Cornell University or risk being decertified if their work product is found to be deficient. This is not an idle threat, planners have been decertified in New York. In addition to certified planners, professional engineers licensed in New York are required to design and certify engineering practices planned in a farm’s CNMP. New York’s current system provides a level of rigor, detail and environmental protection that exceeds EPA standards and far exceeds what could be accomplished by agency staff review of documents from an office far removed from the farm location as the EPA rules contemplate. 

Another issue that has been raised relates to farms shifting out of the Clean Water Act permit. While other dairy states require a CAFO permit for farms with 700 or more milking cows, in NY, farms that have 300 or more milking and dry cows are required to have a permit. Over the years, these farms have worked very hard and invested significant resources to develop and implement a Comprehensive Nutrient Management Plan (CNMP). 

Since 1999, the New York State Department of Environmental Conservation (DEC) has periodically reviewed and updated the permit to address important environmental issues, most recently in 2016. Two updated permits, the Environmental Conservation Law (ECL) Permit and the Clean Water Act (CWA) Permit were issued to take effect in mid-2017. At that time, both permits had virtually the same requirements, except the ECL permit was, and remains, more stringent than the CWA: Farms operating under the ECL must have procedures in place to prepare for a larger storm event thereby providing increased environmental protections beyond those achieved in the CWA permit. 

After a lengthy public review and comment period and several additional months when the final permit language was published, both the ECL and CWA permits came into effect in the summer of 2017. However, a lawsuit filed in 2017 resulted in an April 2018 court ruling ordering DEC to revise the CWA permit. The ruling focused on requiring development of a five-year CNMP, agency review and most notably, a public notice requirement. This means the public has an opportunity to weigh in on both the notice of intent to comply with a permit and potentially with specific changes that may be needed over the five year timeframe.

Farms needed to decide which permit to obtain long before the outcome of the lawsuit and most of them had already moved to the ECL well before the ruling was announced. Therefore, the claims that continue to circulate that hundreds of farms have moved to the ECL permit because of the lawsuit are flat out wrong. For the few farms that had opted to stay in the CWA after the issuance of the 2016 permits (21 total), the court ruling, requiring the five-year planning window along with the 30-day public comment period, made it extremely difficult for farmers and advisers to implement accurate, timely, critical decisions that not only suit the needs of the farm but are also necessary to properly manage nutrients, soil health, and the land for environmental protection. For these reasons, those 21 remaining CWA farms elected to make additional improvements and develop more rigorous processes and, in some cases, install additional protections to allow them to switch to the ECL Permit.

Regardless of whether a farm operates under the ECL or CWA Permit, the same high standards are required, and as noted earlier, a key difference with the ECL permit relates to additional requirements for larger storms, which exceed those of the minimum requirements of the CWA permit. While we need to continue to find ways to reduce environmental impact, and although the NYS CAFO Permit system is not perfect, it is extremely robust and based on interactions with colleagues in other states, I believe it is among the best in in the U.S. for real environmental protection while minimizing extra steps that bring little or no real value.

Save the Date

New York Labor Roadshow III
November 18 - 22, 2019

Ag Workforce Development Council is hosting Labor Roadshow III at five locations statewide from November 18 through 22. Sessions run from 8:30 am to 4:00 pm and cost is $55 per person, payable at the door.

All New York farm employees are affected by new laws that take effect beginning January 1. New York Labor Road Show III is your opportunity to learn about the changes and position your business for compliance and success in a very different environment. Featured topics include: Compliance with Wage and Hour Laws: Overtime and Day-of-Rest Requirements; Understanding Unions and Labor Organizing; Managing the Collective Bargaining Process; The Increasing Importance of Farm Supervisors; Sexual Harassment Prevention: Updates to the NY Law; Compliance Priorities and Enforcement Plans for 2020; NYS Department of Labor; Industry Quality Assurance Program Updates; and Insurance Update: Disability, Paid Family Leave, and Employment Practices Liability, What is Available?

Regional Cow Comfort Workshops

December 2 - 13, 2019

Cornell CALS PRO-DAIRY and Cornell Cooperative Extension are offering regional Cow Comfort Workshops for freestall and tie stall barns. The workshops will cover economics of improving cow comfort, stall design and management, stocking density, heat abatement, and effects on production.  Two separate sessions will be held: one to focus on freestall cow comfort and one to focus on tie stall cow comfort and will run from 9:30 am to 3 pm. The workshops will be held on farm with a combination of presentations, demonstrations, farm walk-throughs and discussion. The program fee for either course is $20 pre-registration or $25 the day of the program. This low program fee is possible because of generous support by the NY Farm Viability Institute.

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Transition Cow Management Online Course
January 17 - March 13, 2020

This course is for dairy business on-farm personnel seeking to increase their knowledge of dairy transition cow management. Learn the basics of transition cow management then quickly build from there. Topics will include: Transition Cow Physiology/Biology, Nutritional Strategies for Transition Cows, Fresh Cow Health Management, Metabolic Disease, Non-nutritional Management, and Monitoring Health.

Northeast Dairy Management Conference
March 11 - 12, 2020
Holiday Inn, Liverpool, NY

The Northeast Dairy Management Conference is designed for producers and agriservice professionals to interact and relate to the latest thinking and issues in the dairy industry. Dynamic and informative sessions will challenge your thinking to re-energize your business and improve performance. Connect with other progressive dairy producers and advisors to build your network for long term success.

Herd Health and Nutrition Conference
April 6 - 7, 2020
Doubletree by Hilton, Liverpool, NY

The Herd Health and Nutrition Conference provides an opportunity for agriservice personnel, feed industry representatives, veterinarians, and dairy producers to increase their knowledge of current herd health and nutrition management techniques while interacting with other professionals.


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