The Chesapeake Bay Foundation announced legal action against Virginia for failing to protect streams, rivers and the Chesapeake Bay from the pollution that results when livestock are allowed access to waterways.
The CBF contends that the Virginia State Water Control Board and the Virginia Department of Environmental Quality have failed to enforce Virginia statutory provisions that are in place to ensure clean water for the “benefit, enjoyment, and general welfare of the people of the Commonwealth.”
The CBF took action in April 2014, after the State Water Control Board approved a 10-year permit governing large farming operations without specifically requiring fencing to exclude livestock for streams. The case will be heard by the Virginia Circuit Court on July 2 in Richmond.
In Virginia, livestock exclusion is currently required for confined animal feeding operations — where livestock is contained in small fenced areas — but has been considered “voluntary” for pastured livestock by state program managers.
Allowing livestock to wade in streams causes problems with water quality as well as animal health. Stream banks erode after being trampled by livestock, degrading habitat for aquatic life. When cattle and other livestock are allowed in or near streams, animal waste creates health problems for the animals — and for people. Almost half of the streams in Virginia that do not meet water quality standards have excessive bacteria, often from the lack of livestock management near streams.
Peggy Sanner, CBF senior attorney, said that that keeping livestock out of streams is good for the health of the cattle, as well as the health of streams. She cited a recently published report from the Chesapeake Bay Commission, a tri-state legislative advisory board, that recommends Virginia, Maryland and Pennsylvania create workgroups to “examine existing federal and state statutory and regulatory frameworks.”
“We obviously think that livestock exclusion is a good idea, but we are bringing this litigation because we believe that Virginia law already requires it,” Sanner said.
According to the Chesapeake Bay Program, pollution from agriculture contributes about half of the nutrients and sediment that, in excessive amounts over the years, has contributed to the loss of underwater grasses and aquatic organisms — including crabs and fish — in the Bay
A federally mandated cleanup process — called the Chesapeake Bay Total Daily Maximum Load, or TMDL — is under way, with the goal to reduce enough nitrogen, phosphorous and sediment entering the Bay and its tributaries by 2025 to result in a healthy Bay ecosystem.
As part of the process, each state in the Bay watershed developed plans for how they would achieve pollution reduction from agricultural and urban lands. Virginia’s plan calls for 95 percent livestock exclusion by 2025, but the CBF is concerned that this goal will not be reached at the present rate.
“That’s one of the primary arguments” of the suit, said Jon Mueller, CBF vice-president of litigation, who will argue the case in Richmond on July 2. “The state has said that to meet its obligations under the Bay TMDSL, they would fence 95 percent of the livestock out of the streams.”
“We don’t see that happening unless they have mandatory requirements on these larger [animal feeding operations],” Mueller said.
The EPA Chesapeake Bay Program, which oversees the TMDL, cited Virginia in its June 2015 evaluation of the state’s progress. as “needing enhanced oversight,” in part, because of concerns that many of its agriculture pollution reduction programs — including stream exclusion fencing — are voluntary.
Federal and state monies have been available to help Virginia farmers install fencing and alternative watering systems necessary to keep livestock away from streams. Virginia has allocated $25 million over the last 18 months to provide farmers with 100 percent of the costs of fencing. The program has been very successful in recruiting some farmers who have, until now, declined funding assistance. Starting July 1, the program’s cost-share ratio will be reduced to 80 percent.
Sanner, in the CBF press release, said that the CBF’s legal action is not directed at individual farmers but rather at the state. The State Water Control Board approves water quality permits, the Virginia DEQ recommends policy to the board.
The Virginia Farm Bureau and the Virginia Agribusiness Council are listed as “interveners” to the CBF lawsuit.