The Water We Drink, The Land We Live on: A Call to Action Against Confined Animal Feeding Operations

Friends of FLOW,

As a descendant of early Montana homesteaders, I’ve been blessed to spend much of my life close to pristine trout streams and millions of acres of wilderness. I’ve pulled lambs, witnessed calves being born on open range, and found myself way too close to grizzlies and bison. Both the responsibility of an animal whose life is in our hands and the awe of a brush with a truly wild creature offer insight into our humble human place in the universe.

As an environmental lawyer, I’ve also witnessed the insidious creep of industrial agriculture, which disrupts these natural rhythms and threatens the very foundation of our rural communities by replacing careful husbandry with the profitability of volume. Nowhere is this threat more evident than in the rise of the confined animal feeding operation (CAFO), an industrial model of livestock production that undermines the quality of the food we eat every day, while dumping cities’ worth of untreated sewage onto our land and into our water.

“[CAFO] waste contains a noxious cocktail of pathogens, antibiotics, hormones, and excess nutrients, all of which can and do seep into our groundwater, contaminate our rivers and lakes, and pollute the air we breathe.”

— Carrie La Seur, FLOW Legal Director

CAFOs, as you likely know, are large-scale facilities where thousands of animals live foreshortened lives fueled by diets nature never intended. Their cramped, unsanitary conditions contribute to the current avian flu outbreak. CAFOs generate massive amounts of sewage, often stored in open cesspits or spread onto fields as fertilizer in quantities even the poorest soil could never absorb. This waste contains a noxious cocktail of pathogens, antibiotics, hormones, and excess nutrients, all of which can and do seep into our groundwater, contaminate our rivers and lakes, and pollute the air we breathe.

When I started working with For Love of Water in Michigan late in 2023, one request rose above all the other urgent water quality issues on this water-obsessed peninsula: please, people said, help us do something about CAFOs. Michigan has nearly 300 permitted CAFOs, a number that’s doubled in the last 20 years, as the total number of farms plummeted. They’re concentrated in rural areas where residents rely on private wells for drinking water. These communities, full of generational residents who value open spaces and the gifts of nature, are now at increased risk of water contamination, with potentially devastating consequences for public health. We’ve all witnessed outbreaks of waterborne illnesses, elevated levels of nitrates in drinking water (especially dangerous for infants), and even the emergence of antibiotic-resistant bacteria.

See EGLE, Regulated Concentrated Animal Feeding Operations (CAFOs) map and MSU Extension, Small Farm Manure Management Planning. <​​https://egle.maps.arcgis.com/apps/webappviewer/index.html?id=0fae269e1c45485f876c99391403bd3e>, <https://www.canr.msu.edu/animal-agriculture/uploads/files/Small%20Farm%20Manure%20Management%20Planning.pdf> (visited April 18, 2024).

But the damage doesn’t stop with threats to human health. CAFO waste can also degrade soil quality, contribute to harmful algal blooms, and drive the decline of fish and wildlife populations. The sheer scale of these operations places an immense strain on local infrastructure, from roads and bridges to downstream wastewater treatment plants. Residents on municipal water pay more to cover expensive filtration of CAFO pollution.

And let’s not forget the toll CAFOs take on rural communities – displacing small family farms and concentrating economic power in the hands of a few corporations. Industrial agriculture churns workers through low-paying, dangerous jobs often held by migrants who don’t dare report health and safety violations. Unlike the traditional family farm, these animal factories change the feel of a community. They breed a sinister atmosphere, where complaints are met with threats of violence and penalties for complaining written into state law: Michigan’s Right to Farm Act allows the ag department to bill its investigation costs to anyone who complains more than three times about a CAFO, if the department finds that the CAFO is complying with a set of loosely defined, industry-friendly standards called “Generally Accepted Agricultural Management Practices”, or GAAMPs. The point is clear: don’t complain.

So, what can we do? We won’t stand by and watch as our water is poisoned, our land is degraded, and our communities are hollowed out. We must raise our voices in defense of clean water, healthy food, and vibrant rural communities.

“CAFO waste can also degrade soil quality, contribute to harmful algal blooms, and drive the decline of fish and wildlife populations. The sheer scale of these operations places an immense strain on local infrastructure, from roads and bridges to downstream wastewater treatment plants.”

FLOW, with its deep commitment to protecting Michigan’s waters, is uniquely positioned to lead this charge. I urge all our members and allies to expand your advocacy efforts to include the fight against CAFOs in favor of an agriculture that honors people, land, water, and animals. This means working with legislators to strengthen regulations, supporting community-led initiatives to monitor water quality, and expanding public understanding about the dangers of an unethical, corporatized agriculture.

But we must go further. We must challenge the notion that CAFOs are the only way to produce food. We must support farmers — they’re all around us, please go meet them! — who are raising livestock in a way that respects the land, the animals, and the people who depend on them. We must build a food system that is not only sustainable but also just and equitable.

This is not just an environmental issue. It’s a moral issue. It’s a question of how we want to live, how we want to eat, and what kind of future we want to create for ourselves and our children. It’s a question of whether we will continue down a path of pollution and exploitation, or whether we will chart a new course toward a more sustainable and humane way of life.

I believe that we have the power to choose a different path. I believe that we can build a food system that nourishes both body and soul, a system that honors the land and the people who work it. I believe that we can create a future where clean water flows freely, where rural and urban communities thrive, and where all beings are treated with dignity and respect.

Let us work together to make this vision a reality.

In solidarity,

Carrie La Seur

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Farm markets can reduce environmental impacts on communities when food systems stay local. Finding a farm market near you can be a great place to start and can make a difference!

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Great Lakes Manure Conference: Agriculture Runoff and Lake Erie

On May 1-2, 2024, FLOW policy director Carolan Sonderegger and legal director Carrie La Seur attended the Great Lakes Manure Conference in Toledo, Ohio. The conference was an opportunity to tour the Maumee River, and learn from experts about legal, environmental, and public health issues posed by Concentrated Animal Feeding Operations (CAFOs). Below, Carolan shares her learnings and reflections from the conference:

On the first day of the Great Lakes Manure Conference in Toledo, attendees joined a bus tour of local CAFOs (Concentrated Animal Feeding Operations) and a boat tour of the Maumee River, which provided ample room for networking and knowledge exchange. During the boat tour, we were able to see several grain silo facilities alongside the river.

One of the major highlights of the tour was the Glass City River Wall, which happens to be the largest mural in the United States (pictured above). The mural is not just a beautiful sight to behold; it is also an inspiration and a tribute to the local community’s resilience and determination to seek clean water and better nutrition for people worldwide. The mural depicts the historical significance of the indigenous peoples who lived and farmed along Ohio rivers for thousands of years, a testament to their enduring spirit in the face of environmental challenges.

The Maumee River is one of the United States’ largest Areas of Concern (AOC) – areas that have experienced environmental degradation. The river has been a hotspot of industrial and municipal development for almost 200 years. Due to agriculture runoff, unregulated waste disposal, industrial contamination, combined sewer overflows, and disposal of dredged materials, the Maumee River is the largest system emptying contaminants into Lake Erie.

In the Ottawa River, one of several embedded watersheds, high levels of PCBs and other contaminants led to a no-contact advisory for over 25 years, which was finally lifted in 2018. Human activities have resulted in the loss of more than 90% of Northwest Ohio’s wetlands, including the Toussaint Wildlife Area, a historic wetland. The contamination led to a restriction on fish and wildlife consumption until only recently, which was lifted in August of 2022. Many community members were observed fishing for sustenance along the banks, despite the fish consumption advisory recommending no more than one meal per week.

As seen in the picture above, the Maumee River appears to be vastly different from the waters and rivers of Northern Michigan. In contrast to our clear blue Niibii (water), the Maumee River resembled a dark and murky likeness to chocolate milk due to an abundance of suspended sediment. The Environmental Protection Agency (EPA) has been collaborating with federal, state, and local partners to carry out remediation and restoration work in the region to tackle the existing beneficial use impairments (BUIs) – which identify significant environmental degradation. Although much work remains to be done, significant progress has been made on contaminated sediment remediation and habitat restoration efforts. Although turbidity is a water quality indicator, it is not an overarching testament to the river’s rehabilitation.

On the second day of the conference, we convened at the University of Toledo’s Lake Erie Center. We were privileged to hear from a diverse group of experts, including Kathy Martin, a civil engineer with over 25 years of experience in CAFOs; Fritz Byer, a Harvard Law graduate with over 35 years of practice; and others from Food and Water Watch, Waterkeeper Alliance, USDA/NRCS, and CAFO neighbors. The conference covered crucial topics, such as CAFO permitting (or lack thereof), manure digesters, CAFO history and economics, and the Nutrients Farm Bill. These discussions provided valuable insights into the current state of environmental conservation and the actions needed to address the issues.

Some speakers described the inconsistency in CAFO regulation from state to state in the Great Lakes basin, which aggravates cross-border cleanup challenges. Others addressed public health threats caused by CAFO waste, including multi-drug-resistant bacteria and avian flu, which can both spread to humans. University of Missouri Professor Emeritus of Agricultural Economics John Ikerd described the economics of CAFOs. It actually costs less to raise an animal on a traditional, diversified farm than in a CAFO, but CAFOs raise such large numbers of animals that smaller operations can’t compete on price.

Attorneys brought a legal perspective on current challenges to CAFOs, and how quickly the industry pivots to dodge regulation and enforcement. It is clear that we need a broad, national approach to reforming food systems, to restore healthy relationships among humans, animals, land, and water. This is FLOW’s vision.

AG Nessel’s lawsuit against Allegan County CAFO

By Carrie La Seur, FLOW Legal Director

It’s getting warm this spring down in Allegan County. In late February 2024, attorneys in the Michigan Attorney General’s office brought an enforcement lawsuit against J&D Brenner Farms, an Allegan County dairy operation and successful scofflaw until this year. EGLE has been trying since 2016 to get Deb Brenner to apply for a wastewater discharge permit for her livestock confinement. An eight year grace period seems pretty generous, but all good things must end.

Brenner, who doesn’t seem to have incorporated but calls the place J&D Brenner Farms, keeps an estimated 650 dairy cows. Michigan’s regulations for Confined Animal Feeding Operations (usually referred to as CAFOs) distinguish between “Large CAFOs” – for dairy operations, stabling or confining more than 700 mature dairy cows – and “Medium CAFOs” – 200 to 699 mature dairy cows. Different regulations apply, unless you just don’t bother to file a permit application at all. Then you get a series of increasingly firm letters from EGLE, followed by – wait for it – an unpleasant one from the Attorney General.

The problem is, of course, that those 650 Brenner cows produce 6-9 million gallons of waste annually. It’s not just manure (although it’s a lot of manure, equivalent to 1% of the sewage produced each day by metro Detroit), it’s also every other kind of waste that a dairy operation produces. Under the permit definition, “manure” means what you think it means, plus anything someone throws in with it for disposal. This might include growth hormones, antibiotics, milkhouse cleaning chemicals, chemicals added to manure storage lagoons, birthing fluids and blood from calving, silage leachate, contaminated storm and wash water, copper sulfate used to keep cows’ hooves healthy, even diesel fuel tossed in to keep down bugs and algae. A fairly toxic stew.

All this muck has to go somewhere. Anyone who’s explored the upper Midwest in spring knows where. The big dump of CAFO waste is already underway this year, pouring vast amounts onto fields as an inexpensive fertilizer. The law requires careful measurement of how much fertilizer a given field needs, but unlike commercial fertilizer, which is more expensive all the time, CAFO waste has to be disposed of to free up space in lagoons for more of the same. Up to a point, it’s fertilizer. But all too often, it’s waste disposal, and the more the better.

To understand how Brenner got away with ignoring the law for so long, let’s look at another central Michigan large livestock operation in nearby Ionia County. Van Elst Brothers CAFO in Lake Odessa reports 4,995 hogs, qualifying it as a Large CAFO. They produce 2 million gallons of liquid waste a year. They don’t have a discharge permit either, but that doesn’t matter, because the Van Elsts have a quasi-magical status called a No Potential to Discharge Determination.


There are three basic requirements for No Potential to Discharge for a Large CAFO:

  1. The CAFO can’t have any reported discharges of CAFO waste to surface waters in the last five years, from the confinement site or the application fields. As a side note, this isn’t great motivation for self-reporting of spills that require emergency response.
  2. It must be “verified” as observing best practices under the Michigan agriculture environmental assurance program – a black box verification by the state ag agency, without public disclosure or any renewal process, so that once you’re in, you’re in forever.
  3. In practice, EGLE only grants No Potential to Discharge status to Large CAFOs that “manifest” all their waste, meaning that they “sell, give away, or otherwise transfer” it to a third party (sometimes very closely connected, but legally separate) for field application. This way, the CAFO operators can figuratively (and, we hope, literally) wash their hands of their waste.

Which brings us to the fascinating topic of Manifested Manure. Technically, Large CAFO operators are supposed to have the person who trucks away their waste fill out a 4-page form promising that they’ll be pious and law-abiding after driving away with a load of CAFO waste no one will ever follow up on. It’s the ultimate honor system.

The CAFO operator keeps the form, like a medieval Roman Catholic dispensation absolving them of any guilt for eventual water pollution, and the waste hauler makes the problem go away. The location of the “manifested” fields never makes it into EGLE’s database. The hauler has no reporting obligations. No inspector will call. Imagine if nuclear waste was handled this way. We’d all glow in the dark.

If only Deb Brenner had taken EGLE’s suggestion, back in August 2016, to apply for a No Potential to Discharge request by October 1, 2016, all this embarrassment could have been avoided. If she’d simply transferred all her CAFO waste to, for example, Brenner Excavating up the road for disposal, and cleaned up the site enough to pass an inspection, she’d be sitting pretty today rather than hiring lawyers. The Van Elst Fact Sheet and Basis for Decision Memo is a thin 3-pager, not a high bar at all. And we haven’t begun to talk about the many permitted CAFOs with long rap sheets of violations that seem to pass under the enforcement radar.

Let’s be clear: FLOW applauds the AG or EGLE for undertaking a well justified enforcement action. We’re proud that Michigan is doing better than its neighbors at controlling CAFO pollution. But when Michigan still estimates that roughly half its surface waters are contaminated by E. coli bacteria, fish kills from CAFO waste are a regular occurrence, and many fish are unsafe to eat, the public deserves better than regulatory loopholes big enough for a fleet of manure spreaders to parade through.

FLOW joins amicus brief in Michigan Supreme Court CAFO case

By Carrie La Seur, FLOW Legal Director

My lungs remember. While I was an Iowa Environmental Protection Commissioner, I said yes to a chance to visit a relatively small hog confinement run, by the dad of one of my son’s best friends. It was just a few miles from our home in Mount Vernon, population 4,460, so I drove my old Celica out to the barns one frozen morning. I hadn’t been on another farm recently, and it was a small operation, so I didn’t have to “shower in” or put on different clothes, as many larger operations — also known as CAFOs, or Confined Animal Feeding Operations — require for biosecurity. We just walked through two sets of doors and stepped onto the steel grated floor of the hog barn.

If you’ve ever heard a pig squeal, you can imagine the effect of hundreds of pigs squealing, not in unison but total cacophony at the appearance of humans in their white-walled, tightly packed world. The smell hits just as hard, not so much the stink of manure as the nostril assault of pure ammonia from the urine pooled in vaults beneath your feet. My first instinct was not to breathe, then to take shallow, singed breaths, trying not to let the gas deep into my lungs.

We walked the full length of the barn, as the hogs rushed back and forth in their pens, Alan briefing me in steady, Iowa farmer tones on the life cycle of a confinement animal, the feed and medicine, waste handling, and the value of each pig to his bottom line, how carefully he watches them. This kind of small operation is unusual in the world of industrial livestock, where the number of farms has been dropping for decades, while the average size of an operation grows – and the size of its waste stream.

As a result, America’s farm country is adrift on a sea of manure. In Michigan alone, livestock confinements produce sewage equivalent to the state’s entire human population of 10 million, plus nearly another 4 million people. It’s like having Pennsylvania’s untreated sewage shipped to Michigan and spread on the ground and into our lakes, rivers, and streams. 

All this goes to explain why eleven organizations recently filed an amicus brief in litigation pending before the Michigan Supreme Court. Michigan Farm Bureau, a rich and powerful insurance company and lobbying agency masquerading as a grassroots ag group, is blocking the state’s efforts to control widespread water and soil pollution from livestock confinements. Our brief argues that no one is above the law, or the duty to protect Michigan’s waters for all of us.

Download and read the amicus brief (PDF)

FLOW and its many allies, from CAFO neighbors to trout fishers to city dwellers paying to clean up an uncontrolled wastestream delivered to them by rivers, have had enough. For too long, agricultural polluters have had a free pass and no accountability as we dump vast amounts taxpayer money into voluntary water quality measures that work only for a short time, or not at all. We’re looking for creative ways to fight back. Join us.

A River of Manure: CAFO Sewage Runoff Threatens Water Systems

Guest author Pam Taylor is a volunteer with Environmentally Concerned Citizens of South Central Michigan. Taylor’s family came to Lenawee County, Michigan in 1837 to farm, and some family members are still farming there. She and her brother own a farm that’s been in her family for 117 years, where she lived and raised sheep and chickens and grew vegetables, fruits, and flowers. After spending years in the business world, she became a teacher and taught business and mathematics at Adrian Public Schools and as an adjunct at local colleges. 


When used in a sanitation context, it’s anything you flush down your toilet. It’s bodily-function, gut waste. It has much higher levels of contamination than graywater, which is water from showering or washing.

When blackwater comes from 3,500 cows in a Concentrated Animal Feeding Operation (CAFO) lagoon-cesspit and runs off the field where it’s been dumped, it looks like this:

Raw CAFO sewage runoff into dry ditch from field, heading toward federally-protected wetland. Lenawee County, Western Lake Erie Basin. June 2, 2023.

Volunteers for Environmentally Concerned Citizens of South Central Michigan (ECCSCM) captured the images in this story in early June, 2023. ECCSCM has been tracking water pollution from 13 CAFOs like this one for over 20 years.

A CAFO is a livestock operation on an industrial scale, holding hundreds or even thousands of animals in a confined space. CAFOs produce a staggering amount of fecal waste – which has to go somewhere.

That somewhere is often on top of fields (“field application”), where it is sprayed in amounts far surpassing what would be a typical fertilizer application. The blackwater runoff from these fields, as well as the windblown fecal particulates, can be dangerous – and even deadly.

The second day of tanker fan-spraying liquid livestock sewage on dry field, with fecal particulates and dust blowing everywhere. Lenawee County, Western Lake Erie Basin. June 1, 2023.

Fortunately, this time, the contractor involved brought in a pump and heavy equipment and scraped the blackwater out of the ditch before it reached the federally-protected wetland. This was day three of a field application that lasted nearly two weeks. 

For decades, this 200-acre field was maintained as grassland under the federal Conservation Reserve Program. It was an important nesting site and home to a variety of bird and pollinator species – until a few years ago. 

There’s a county drain running across this field – part of which was once an open, tree-lined ditch, and part subsurface tile – where buried pipe carries this liquid sewage to open water in the same way a city sewer carries municipal sewage to a wastewater treatment plant. There’s an old well at the edge of this field, and catch basins that collect stormwater and funnel liquid from the surface into these tile pipes. The pipes, in turn, transport the liquids under roads, then into connected wetlands and waterways  that eventually flow into Lake Erie downstream.

Raw livestock sewage ponding in a now-saturated corner of same application field, near old groundwater well and catch basin, path to blackwater runoff into dry ditch. Lenawee County, Western Lake Erie Basin. June 2, 2023.

We at ECCSCM had to learn about CAFO waste and take on the responsibility for testing and documentation because the State of Michigan and its environmental permitting and enforcement agency, EGLE and its predecessors, have failed in their responsibility to protect Michigan’s waters.

On June 2, 2023 around noon, the Michigan Department of Environment, Great Lakes and Energy (EGLE) was notified by phone call about the CAFO sewage runoff. By the time EGLE sent a staff member out later that afternoon, the contractor had scraped the ditch and most of the workers had left for the day. 

As the days passed and dumping continued, ECCSCM continued to document places where this waste could enter the tile drainage systems. We also asked EGLE to collect and analyze samples at certain places where these tiles empty into streams. This wasn’t the first time there was a major runoff incident from this field.

EGLE never collected any samples, and only came back once (that we know of) to do a visual inspection. The official response was that the water in the ditches was rusty brown due to iron, and that local drain commission workers reported the same thing: no E. coli samples were taken because staff could find no place where a discharge was entering the waters of the state. 

But the Michigan CAFO Clean Water Act permit language says the waste is supposed to stay on the field. It doesn’t matter if it enters the waters of the state or not. 

EGLE also maintained that while it would have been great if the farm notified EGLE of the runoff, the action taken was what EGLE would have recommended. EGLE considered the incident closed. Bottom line, EGLE has no earthly idea what actually happened, because EGLE never properly followed through at the right time.

ECCSCM has been testing the water at sites like this for 20-plus years because we’ve heard all these same excuses by EGLE and its predecessors in response to incidents like this: it’s tannins, it’s iron, it’s cherries. The water here does have iron in it and, sometimes, tannins. Often, we find astronomically high E. coli counts and excess nutrients (that cause algal blooms) in the surface water coming from these fields, whether the water is rust-colored or crystal clear and odorless. 

After we started testing for E. coli, the excuses became more creative – it’s raccoons, it’s geese, it’s deer. So we started DNA testing for the source species, and we found cattle, swine, and human DNA in our Bacteroides samples. (Bacteroides is a fecal contaminant like E. coli, but easier to accurately extract DNA from.)  While it’s natural to find some DNA from wildlife, including aquatic animals, in streams, there should never be human or domesticated livestock DNA in this water. The excuses given by EGLE for not properly collecting and analyzing samples would fill an encyclopedia.

The above example is just one from the recent past; there are several that are equally bad. The pattern is clear: 

  • failure of state officials to do a site visit immediately
  • failure to take samples, or take samples correctly
  • samples getting lost or damaged
  • incident investigation reports not written for over a year
  • kid-glove handling for these farms is the rule, not the exception.

Many of these same CAFOs are Michigan Agriculture Environmental Assurance Program (MAEAP)-verified, or get federal taxpayer subsidies.

Draglining liquid livestock sewage on the same dry field, at the same time that raw CAFO sewage was running off into the dry ditch. Lenawee County, Western Lake Erie Basin. June 2, 2023.

We’ve come full circle, back to where we were in 1999. If the state doesn’t investigate, nothing happened. If the state doesn’t test, there’s nothing to enforce. The loopholes in the current Michigan CAFO permit are bad enough, and failure to enforce it – as in this case – means that these farms often do whatever they want. Our CAFOs here in south central Michigan are no better and no worse than anywhere else in Michigan. It’s just that here, somebody’s watching.

Michigan’s CAFO permit requirements for factory farms are revised every five years. In 2020, EGLE finally took baby steps, insufficient as they were, and issued a permit that closed some of the gaping loopholes that enable pollution from permitted CAFOs. Immediately, Farm Bureau and most of Michigan’s permitted CAFOs filed a challenge to this permit, along with two other lawsuits. Instead of putting the new permit with its protections for waters that EPA lists as impaired waters into effect and letting the legal actions run their course, EGLE caved to Farm Bureau pressure. 

Meanwhile, Farm Bureau and agriculture lobbyists have been blanketing Michigan’s legislators with their standard, world-class marketing campaign that portrays them as victims of oppressive regulation. All so that these farms – which couldn’t exist without massive taxpayer subsidies and so-called ‘best management practices’ that aren’t an adequate substitute for wastewater treatment – can continue to send their city-sized loads of untreated livestock sewage downstream.

The inadequate permit requirements combined with the failure to enforce is a double hit.

Our message to Michigan’s elected officials in the executive and legislative branches: Ignore the perpetual Farm Bureau swarm. Take a look at Michigan’s CAFO map, then the E. coli and nutrient Total Daily Maximum Loads (TMDLs), and this summer’s harmful algal blooms. This is a public health crisis. 

Remember your job and your responsibility, under the Natural Resources and Environmental Protection Act (NREPA) and the Michigan Environmental Protection Act (MEPA), to protect Michigan’s waters. Make EGLE’s CAFO permitting and enforcement staffs – the environmental cops – do the job that Michigan hasn’t done for over 20 years. We’re asking you to think less about personal politics, and more about the long-term future of these Great Lakes and everything living here. That’s your real legacy.

Environmentally Concerned Citizens of South Central Michigan (ECCSCM) is a local, grassroots group formed in 1999 to educate the public and public agencies about the health risks and environmental damage industrial livestock operations have brought to our local watersheds and to advocate for responsible, environmentally sustainable farm practices. They document environmental violations by confined animal feeding operations (CAFOs) in south central Michigan, disseminate observations and monitoring data from many local testing sites, and educate and inform the public and government agencies about their findings.

Combating CAFO Pollution

By Zach Welcker, FLOW Legal Director

On February 16, 2023, FLOW (For Love Of Water) and 10 other environmental groups filed an amicus brief asking the Michigan Supreme Court to strike down an appellate court ruling that prevents the Michigan Department of Environment, Great Lakes, and Energy (“EGLE”) from fulfilling its duty to protect Michigan’s waters from wastes generated by concentrated animal feeding operations (“CAFOs”). CAFOs are essentially industrial livestock operations masquerading as farms. They put meat on the table by employing a process that is equal parts cruel to animals and destructive to the planet.

FLOW Legal Director Zach Welcker. (Photo by John Robert Williams)

A single, large CAFO produces one-and-a-half times more untreated waste than the human sanitary waste produced by the cities of Ann Arbor, Dearborn, Detroit, Flint, Grand Rapids, Kalamazoo, Lansing, Saginaw, Traverse City, and Warren combined.

Our amicus or “friend of the court” brief focuses solely on curbing CAFO pollution. There are roughly 300 CAFOs in Michigan. A single, large CAFOs produces one-and-a-half times more untreated waste than the human sanitary waste produced by the cities of Ann Arbor, Dearborn, Detroit, Flint, Grand Rapids, Kalamazoo, Lansing, Saginaw, Traverse City, and Warren combined.

In order to avoid the costs of transporting all of this untreated waste for proper disposal, CAFOs spread what they can on their land under the auspices of crop fertilization. If they run out of room on their own land, CAFOs “manifest” their untreated waste for disposal on someone else’s field. Plants don’t need or absorb all of the nutrients and contaminants in the waste, so much of it runs off into Michigan’s streams, rivers, and lakes. This is why Lake Erie now turns green with toxic algal blooms every summer and E. coli contamination is widespread in our waterways.

CAFOs are a key reason “why Lake Erie now turns green with toxic algal blooms every summer and E. coli contamination is widespread in our waterways.”

In 2020, EGLE updated its 2005 General Permit for CAFOs in order to enhance protection of Michigan’s waters. Despite having succeeded in substantially diluting more stringent pollution-control requirements during the development of the 2020 Permit, the CAFO industry still was not happy with its new obligations. The Michigan Farm Bureau filed suit, arguing that EGLE cannot change its existing 2005 Permit without undertaking new rulemaking. The court of appeals issued a decision adopting this argument, and EGLE sought review by the Michigan Supreme Court.

A green, soupy Lake Erie from excess nutrients causing a toxic algae bloom.

Our amicus brief explains that, if left unchecked, the appellate court’s ruling will effectively freeze in place the terms of the 2005 Permit because the legislature eliminated EGLE’s rulemaking authority after 2006. Because these terms are inadequate to protect state waters from CAFO pollution, the appellate court decision forces EGLE into permanent noncompliance with its duties under Michigan’s two landmark environmental statutes: the Natural Resource Environmental Protection Act (“NREPA”) and the Michigan Environmental Protection Act (“MEPA”). The decision also creates a constitutional problem because the legislature’s elimination of EGLE’s rulemaking authority under these circumstances violates the legislature’s duty under Article IV, Sec. 52 of the state constitution to protect state waters from impairment.

To be clear, an EGLE victory before the Michigan Supreme Court would not resolve this matter to the satisfaction of FLOW and our allies.

To be clear, an EGLE victory before the Michigan Supreme Court would not resolve this matter to the satisfaction of FLOW and our allies. We ultimately think the 2020 Permit is insufficient to protect Michigan’s waters and intend to resume our separate, currently stayed contested case against EGLE following the Michigan Supreme Court’s decision.

Learn more: See more of FLOW’s original articles on CAFOs.

FLOW and Allies File Amicus Brief with Michigan Supreme Court to Protect Waterways from Industrial Agriculture Pollution

Photo: A harmful algae bloom causing a dead zone in Lake Erie primarily due to excess agricultural nutrient pollution.

Editor’s note: Members of the media can reach Zach Welcker, FLOW Legal Director, at Zach@flowforwater.org or (231) 944-1568.

Lansing, MI – Eleven environmental groups, including FLOW (For Love of Water) late last week filed an amicus or “friend of the court” brief asking the Michigan Supreme Court to reverse a state appellate court ruling that wrongly locks into place a failing Clean Water Act permit for industrial livestock operations that are polluting Michigan’s waters with E. coli and contributing to toxic algal blooms.

The Michigan Supreme Court is poised to decide whether to take the case of the Michigan Farm Bureau v. Michigan Department of Environment, Great Lakes, and Energy (EGLE) where the state Court of Appeals erroneously interpreted the Michigan Administrative Procedure Act. That ruling, if left unchanged, effectively wipes out two landmark environmental laws that embody the Michigan Constitution’s explicit directive to protect the State’s natural resources, which are “of paramount public concern.”

“Lake Erie turns green every summer due to algal blooms caused by CAFOs. The Court of Appeals decision prevents EGLE from doing anything to fix the problem. Our amicus brief asks the Supreme Court to restore EGLE’s permitting power to make Lake Erie swimmable and fishable again. The Michigan Constitution and Michigan’s environmental laws demand this result,” Zach Welcker, Legal Director, For Love of Water (FLOW).

The dispute involves the Clean Water Act permit for concentrated animal feeding operations (CAFOs), which confine thousands––sometimes hundreds of thousands––of animals in a relatively small space. As a result, they generate far more manure and other waste than they can safely dispose of. A single large CAFO annually produces one and a half times more untreated waste than the human sanitary waste produced by the cities of Ann Arbor, Dearborn, Detroit, Flint, Grand Rapids, Kalamazoo, Lansing, Saginaw, Traverse City, and Warren combined. When not properly regulated, CAFOs cause pollution by inundating Michigan’s waters with excess nutrients (nitrogen and phosphorus), pharmaceuticals, E. coli, and other pathogens.

“The Court of Appeals ruling is wrong on the law and dangerous for clean water in Michigan,” said Rob Michaels, Senior Attorney at the Environmental Law & Policy Center, one of the groups represented in the amicus brief. “The stakes couldn’t be higher. If left standing, this ruling will handcuff EGLE from issuing clean water permits that are strong enough to protect Michigan waters from the growing dangers of CAFO pollution. The Court of Appeals ruling also imperils EGLE’s ability to issue adequate permits for other types of polluters. It turns Michigan law upside down and halts environmental protection in its tracks.”

In effect, the appellate court ruling says EGLE permits cannot contain new measures that weren’t specifically listed in the original rules when a permitting program was established. Instead, the agency has to create a new rule. But EGLE no longer has the authority to issue new rules, so this court decision freezes the agency’s current CAFO permit in place. Importantly, that permit was first issued in 2005 when the number of such industrial agricultural farms was much smaller, and the science linking CAFOs with water pollution was less well understood. EGLE’s own staff admitted the existing permit is failing to protect Michigan’s waters.

The non-profits signed on to the amicus brief are: Alliance for the Great Lakes, Environmental Law & Policy Center, Environmentally Concerned Citizens of South Central Michigan, Food & Water Watch, Freshwater Future, For Love of Water, Michigan Environmental Council, Michigan League of Conservation Voters, National Wildlife Federation, Sierra Club, and University of Detroit Mercy Law School’s Environmental Law Clinic.

Additional quotes from the above groups:

Tom Zimnicki, Agriculture and Restoration Policy Director, Alliance for the Great Lakes, said, “The Michigan Supreme Court’s ruling will be a precedent-setting decision with ramifications far beyond the 2020 CAFO General Permit. Michigan’s freshwater resources are an invaluable resource to Michigan residents and protecting them is vital for everyone in the Great Lakes Basin. If this decision stands, Michigan will be unable to adequately protect its waters for current and future generations. We urge the Michigan Supreme Court to overturn the erroneous lower court ruling.”

Tyler Lobdell, Staff Attorney, Food & Water Watch, said, “The Michigan Farm Bureau has long shown contempt for reasonable regulation of factory farms’ pervasive water pollution. This latest effort to undermine effective pollution oversight and upend environmental protection throughout the state is the latest chapter in that story. The Supreme Court must uphold EGLE’s ability to follow the science and protect Michigan waters from this dangerous industry.”

Zach Welcker, Legal Director, For Love of Water (FLOW), said, “Lake Erie turns green every summer due to algal blooms caused by CAFOs. The Court of Appeals decision prevents EGLE from doing anything to fix the problem. Our amicus brief asks the Supreme Court to restore EGLE’s permitting power to make Lake Erie swimmable and fishable again. The Michigan Constitution and Michigan’s environmental laws demand this result.”

Megan Tinsley, Water Policy Director, Michigan Environmental Council, said, “For too long, laws that are supposed to protect our water have given industrial agriculture a free pass and because of that, we continue to see industrial livestock operations spew manure and fecal waste into our drinking water, lakes, and rivers with no recourse. The 2020 CAFO permit was a good first step by our state decision-makers to start to hold these polluters accountable. The Court of Appeals decision was misguided and also removes one of the only tools our environmental regulators have to protect our water from CAFO waste. We urge the Michigan Supreme Court to overturn this order.”

Nick Occhipinti, State Government Affairs Director, Michigan League of Conservation Voters, said, “The Department of Environment Great Lakes and Energy (EGLE) is the State of Michigan’s lead agency in protecting our Great lakes, inland lakes, and streams from harmful industrial farm operations. This ruling directly blocks their ability to do that. We must uphold EGLE’s authority to protect our health, drinking water and water resources through enforcing permits.”

Marc Smith, Policy Director, National Wildlife Federation Great Lakes Regional, said, “Unfortunately, the Court ruling does not protect our drinking water, wildlife, communities, or our quality of life here in Michigan. We need stronger, not weaker, regulation of CAFO pollution.  We call on the Michigan Supreme Court to overturn this decision and provide EGLE the authority to protect our drinking water and the entire Great Lakes from the spreading concern of CAFO pollution.”

Anne Woiwode, Chair of Michigan Chapter, Sierra Club, said, “For more than twenty years Michigan’s industrial agribusinesses have resisted every effort to require factory farms to be good corporate citizens that meet the same pollution standards as every other polluter. The industry’s efforts to undermine Michigan’s right to protect the health and well-being of our citizens and our right to clean water has to end now, and Sierra Club is proud to join with these partners to support EGLE in this case.”