EPA nixes Minnesota Legislature’s bid to relax feedlot regulations

When Minnesota legislators relaxed manure regulations for the state’s largest animal feedlots earlier this year, they noted federal regulators could veto the changes.

The Environmental Protection Agency on Tuesday exercised that option, reinstating the original permit that was written by the Minnesota Pollution Control Agency in an effort to stem water pollution. In a letter to the MPCA, Cheryl Newton, acting regional administrator for EPA Region 5 in Chicago, said the law would be an “improper modification to MPCA’s authority to implement” federal clean-water law.

The decision was a victory for state regulators, who said lawmakers shouldn’t meddle with federal permitting, and for environmental groups who said the veto would uphold safeguards against water contamination. The EPA announcement was a blow to farming trade groups who said the rules were inflexible and wouldn’t protect water in the way regulators had hoped. It was also a setback for Republican legislators in the Minnesota Senate who touted the law change as one of their big political wins of 2021 and have feuded with the MPCA over environmental regulations.

Affects Minnesota’s largest feedlots

The MPCA restrictions went into effect in February as changes to what’s known as the Feedlot General Permit, which is written and implemented by the state but required under federal clean water laws.

Only Minnesota’s largest feedlots have to get the permit. It applies to about 1,200 businesses that raise animals for meat or dairy. A dairy farm would need 715 cows to fall under the feedlot permit rules, according to Lucas Sjostrom, executive director of the Minnesota Milk Producers Association.

Those 1,200 farms are responsible for roughly one-third of all manure in the state, which is often used as fertilizer to grow food for the livestock. While using manure has benefits over other fertilizer, it can still pollute groundwater or lakes and rivers, contaminating drinking water and hurting wildlife and habitat.

The feedlot permit, which is revised every five years based on up-to-date scientific research, aims to limit pollution by restricting farming practices.

The most recent permit, developed over 18 months, generally bans feedlots from applying solid manure in March and also limits the practice during February. The MPCA says March is a particularly high-risk month because manure can get carried into waterways when snow melts or during early-spring rains when the ground is frozen.

The revised permit also requires farmers under the permit to plant cover crops in September, a practice they already have to do in summer months. Planting cover crops, such as rye, clover and alfalfa in addition to a traditional crop like corn or soybeans can prevent nutrients in fertilizer from leaching into bare soil and polluting groundwater.

In the first two weeks of October, farmers who apply manure would have to implement one of four nitrogen management practices, such as planting cover crops or making sure soil temperature is below 50 degrees.

Agricultural trade groups contend the rules were based on incomplete science that focused on calendar dates and data from only some portions of the state to limit when farmers can spread manure, rather than natural conditions.

Frozen soil in the fall, for example, can make it impossible to plant cover crops, Sjostrom, the executive director of the Milk Producers, has argued. In late March, the ground may not actually be frozen, and it may be a great time to spread manure.

The MPCA contends the rules are more flexible than ag groups have said. Farmers won’t be penalized if they can’t successfully grow cover crops as long as they try, for instance, assistant commissioner Katrina Kessler said in May.

Still, Republican legislators who control the state Senate — with the support of some in the DFL — proposed a complete repeal of the new winter and fall manure regulations, as well as the additional cover crop requirements. But in negotiations with DFLers who have a majority in the House, lawmakers eventually opted to nix only the rules requiring nitrogen management practices in October. The changes were approved as part of an enormous bill containing a broad swath of environmental policy.

The GOP touted the legislation as a win in a session where the Republican-led Senate clashed with the MPCA over its new auto emissions standards, known as Clean Cars rules. The MPCA ultimately moved ahead with the vehicle regulations, but was forced to change course on the feedlot permit. Laura Bishop also resigned as MPCA commissioner in July when the state Senate threatened to fire her.

Feds step in

The feedlot legislation turned out to be only a temporary setback for the MPCA, however.

The EPA can veto something that conflicts with clean water law, a possibility the MPCA warned of and legislators explicitly raised in the final bill that passed in St. Paul by saying it was effective Aug. 31 “unless the federal Environmental Protection Agency disapproves the changes.”

In her letter, the EPA’s Newton said the agency disapproves of any revision in the new state law that affects the MPCA’s authority to carry out the National Pollutant Discharge Elimination System (NPDES) program that the feedlot permit falls under.

Newton said the changes circumvent rules for altering permits, such as public notice and public comment periods, as well as judicial review regulations. The EPA said the Minnesota law would limit the MPCA’s ability to implement the NPDES by changing a permit — that had been approved already by the EPA — “in contravention” with the federal Clean Water Act.

The EPA did not comment on whether the changes to manure management practices would be harmful to the environment.

In a statement Wednesday, MPCA spokesman Darin Broton said the feedlot permit “provided flexibility to farmers when applying manure to fields while protecting Minnesota’s water from harmful nitrogen runoff.”

“The MPCA recognizes that some farm operators will not be happy with the EPA’s decision,” Broton said. “The agency is committed to working with farm operators and stakeholders to ensure our farm economy is strong, our waters are protected, and our soils are healthy.”

In a July letter to the EPA, temporary MPCA commissioner Peter Tester justified the October manure regulation by saying Minnesota “has documented an increased risk of nitrate leaching to groundwater if manure is land-applied in early October.”

The Minnesota Center for Environmental Advocacy, a nonprofit that opposed the Minnesota law change, said on Twitter that “common sense improvements to prevent manure runoff will now be included in new general permits for feedlots.”

Sjostrom, from the Milk Producers, said Wednesday that he was disappointed. Farm groups and the MPCA have disagreed over how flexible the permits really are, and Sjostrom said temperature data underlying the October manure restrictions was from three Minnesota research outposts in southern and central Minnesota — Lamberton, Morris and Waseca — and don’t take into account regional weather differences. No other states in the region have such rules, he said.

“Our argument was all along: what MPCA did does not make the environment better,” Sjostrom said. “The EPA says nothing about issues with the actual environment, benefits to the environment or lack thereof, in their letter. Again it’s disappointing. This seems a lot more like power and a lot less like trying to either make life better for the citizens of Minnesota or for farmers.”

Sjostrom said lawmakers could try again to change the permit. But he said that likely wouldn’t happen in a special session this fall planned to distribute extra pay for essential workers of the COVID-19 pandemic.

“I think that’s just unlikely with the long (special session) docket, and the focus we want them to have on the drought already, to get into something like this,” Sjostrom said. “I do hope it’s something we can readdress next year when there’s maybe more time. Just to take the whole legislature back and educate them about this is difficult.”

Sen. Bill Weber, a Luverne Republican who sponsored the initial bill rolling back the feedlot permit, was not immediately available for comment.

This story has been corrected to reflect that Laura Bishop resigned as MPCA commissioner before the Senate was anticipated to remove her from the post.