Appeals Court rules in favor of North Carolina Farm BureauAppeals Court rules in favor of North Carolina Farm Bureau
Three conditions in general animal-waste permits are invalid until they are adopted through the NCAPA rulemaking process.
November 8, 2023
A three-judge panel of the North Carolina Court of Appeals has sided with the North Carolina Farm Bureau Federation in a dispute over animal-waste permits with the state’s Department of Environmental Quality. The appellate judges found three conditions in general animal-waste permits issued in 2019 are invalid until they are adopted through the North Carolina Administrative Procedure Act rulemaking process.
North Carolina farmers who use certain animal-waste management systems must first obtain either a general or an individual permit. While most animal-waste management systems would be permitted under a general permit, the Environmental Management Commission may grant individual permits when deemed necessary.
In May 2019, the North Carolina Farm Bureau Federation filed three case petitions in the Office of Administrative Hearing’s. In one of those petitions, the Farm Bureau contended that the Division of Water Resources unlawfully included three conditions in the general permits.
The three challenged general permit conditions are:
Farmers with waste structures within the 100-year floodplain must install monitoring wells.
Certain farmers must conduct a Phosphorus Loss Assessment Tool (“PLAT”) analysis.
All permitted farmers must submit an annual report summarizing the system’s operations.
At a summary-judgment hearing on Feb. 9, 2021, the OAH ruled that the three conditions were “rules” under the NCAPA, and because they were not noticed and adopted as such, they were unlawfully included in the general permits. However, on June 20, 2022, the superior court reversed the OAH decision concerning the rule issue.
On appeal, Farm Bureau challenged the superior court’s reversal of the OAH’s rule determination.
In its case to the appellate court, the DEQ had argued that general permits are not generally applicable because farmers can obtain individual permits instead. However, the judges noted that individual permits are not automatic, and if farmers could avoid the challenged general permit conditions by seeking an individual permit, all farmers would likely do so.
“Following the DEQ’s reasoning would render general permits worthless and fly in face of section 143- 215.10C. Our General Assembly expressly stated that general permits are to be used for ‘most animal waste management systems,’” writes Judge Jeff Carpenter.
“Therefore, the conditions within general permits are generally applicable regulations under the NCAPA. They are rules, and the superior court erred when it held to the contrary. Because rules are invalid ‘unless [they are] adopted in substantial compliance with’ the NCAPA rulemaking requirements, we reverse the superior court on the rule issue.”
Another issue brought forth in the appeal was whether a prior settlement agreement, with the North Carolina Environmental Justice Network and other nonprofits, was improperly influenced when the DWR created the challenged general permit conditions. In their decision, the appellate judges stated they did not need to address the issue, since the challenged conditions are invalid, regardless of the effect of the settlement agreement.
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