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Minnesota Supreme Court Finds a Winter Feeding Operation Is Not an “AFO” – No NPDES Permit Required

Updated: Jul 9, 2020

By Ashley Ellixson

Cows lying down in the grass (Photo by Edwin Remsberg).

On July 29, 2015, the Minnesota Supreme Court affirmed the court of appeals decision regarding Reichmann Land and Cattle, LLP (RLC) not being an “animal feeding operation” as defined by 40 C.F.R. § 122.23(b)(1) (2014) and is not required to obtain an national-pollutant-discharge-elimination-system permit (NPDES permit) as a result. However, the court did find that RLC did not meet the “pasture” exemption under the Minnesota statute and is required to obtain a state-disposal-system permit (SDS permit).

Factual Background

RLC is a 4,000-acre farm in Pope County, MN which grows row crops and operates two registered cattle feedlots, a trucking business and a grain-grinding business. RLC has used some of its cropland in the winter as a feeding facility since the 1990s. After the fall harvest each year, either in November or December, RLC places the cattle on cropland totaling 416 acres. RLC also supplements the cattle’s feed, which provides 90% of the cattle’s daily nutritional needs. In the spring, RLC removes the cattle from the winter feeding fields and plants crops during the “normal growing season” which spans late April until the first frost in the fall. RLC maintains a herd of 2,000 and 3,500 cattle on the feeding fields.

Since 2001, the Minnesota Pollution Control Agency (MPCA) has taken the stance that RLC’s winter feeding practices create a discharge of pollutants and require an NPDES or SDS permit. When the parties were unable to come to an agreement on the permit issue, MPCA issued a draft administrative order on March 22, 2011 (ten years of discussions!) requiring RLC to obtain NPDES and SDS permits or to stop the winter-feeding operation. RLC contested the agreement and brought the case before an administrative law judge (ALJ) in 2012. The ALJ found RLC’s winter feeding operation was in fact an AFO and the fields were not “pastures” as defined under the Minnesota statute (the fields lacked vegetation and cattle were not allowed to forage) so the operation was required to obtain both an NPDES and SDS permit. The MPCA commissioner adopted the ALJ’s findings with modifications. RLC appealed the commissioner’s decision and the court of appeals affirmed the commissioner’s decision that RLC must apply for the SDS permit, but NOT the NPDES Permit.

Animal Feeding Operations and NPDES Permits

Cows in a field (Photo by Edwin Remsberg).

Now for the fun part! Why did the court of appeals and the Minnesota Supreme Court find that RLC was not an AFO? The Clean Water Act generally prohibits the discharge of pollutants from a point source. Included in the definition of point source is “…including but not limited to any…concentrated feeding operation.” (33 U.S.C. § 1362(12)(A), (14) (2012). Under Federal law, AFO is a lot or facility where (1) “animals have been, are, or will be stabled . . . and fed . . . for a total of 45 or more days in any 12-month period” and (2) where “crops, vegetation, forage growth, or post-harvest residues are not sustained in the normal growing season over any portion of the lot or facility.” An AFO with at least 1,000 cattle qualifies as a CAFO. CAFOs must not discharge pollutants without an NPDES permit.

The parties agree that RLC is in fact a CAFO, with more than 1,000 cattle kept on the fields for more than 45 days in a year. However, the parties debated over whether RLC met the second part of the AFO definition: (2) where “crops, vegetation, forage growth, or post-harvest residues are not sustained in the normal growing season over any portion of the lot or facility.” The court found that RLC did have crops growing during the normal growing season, against MPCA’s argument that the term of “sustained” was ambiguous and should be defined using outside sources. The court was not convinced and believed that if the term was meant to be interpreted other than its ordinary meaning than the Environmental Protection Agency would have noted that. Thus, RCL is not an AFO and is not required to obtain an NPDES permit.

“Pasture” Exemption and SDS Permit

So what about this state-disposal-system permit required under the Minnesota statute? The Minnesota legislature adopted its own rules in protecting the integrity of the state’s waters, air, and land. Under the Minnesota law, an SDS permit is required if the animal facility is discharging pollutants and “is capable of holding…1,000 or more animal units.” The legislature also created an exemption, which RLC used to argue its case to exempt it from the SDS permit, for animal feedlots operating on land designated as “pasture.” “Pasture” is defined as “…areas where livestock graze on grass or other growing plants” or “where livestock are allowed to forage.” The court agrees with the court of appeals in its finding that RLC’s land is not “pasture” because livestock were not “allowed to forage” and the lands required vegetation during the ENTIRE growing season, not just the winter months.

Cows lying down in a field (Photo by Edwin Remsberg).

What Can We Learn?

No matter which state you might be in, courts are not going to create new meanings for words under statutes that have been understood as their true and literal meaning since the laws were enacted. If you meet the requirement of an AFO, make sure to obtain both state and Federal permits to allow for discharge so you can protect yourself from lawsuits or attacks and maintain compliance. If you are in Maryland and would like more information you can read my blog post on AFO and permitting here. If you are concerned you may need a permit or have questions regarding pollution permits, feel free to email me at

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