Court: Manure is not a pollutant

By Susan Crowell

Not all court documents are filled with legal mumbo jumbo. Sometimes they’re written in plain English.

The language in a December decision from the Wisconsin Second District Court of Appeals couldn’t be more clear: To farmers, manure is not a pollutant.

“Manure is a matter of perspective,” wrote Judge Paul F. Reilly in the decision. “While an average person may consider cow manure to be ‘waste,’ a farmer sees manure as liquid gold. … Manure in the hands of a dairy farmer is not a ‘waste’ product; it is a natural fertilizer.”

And with that reasoning, the judges overturned a lower court’s decision that an insurance company didn’t have to pay for damages to neighbors’ water wells following a manure application.

Here’s the back story: Robert and Jane Falk have a 1,670-acre dairy farm with about 600 head of milking cows and replacements. Like many farmers, they have a farm insurance policy for property and personal liability coverage. The policy listed specific equipment covered, including two manure tankers, two manure spreaders, etc.

In early 2011, the Falks applied manure from their cows on their fields, following a nutrient management plan prepared by a certified crop agronomist and approved by the county’s conservation district. But in May of that year, the state department of natural resources notified the Falks that manure from the farm had polluted a local aquifer and contaminated their neighbors’ water wells. Several neighbors sought compensation, and the Falks notified their insurer, Wilson Mutual Insurance Co., of the claims.

The insurance company said, nope, we’re not paying because the policy excludes losses resulting from the “discharge, dispersal, seepage, migration release, or escape of ‘pollutants’.” Manure is a waste and a waste is a pollutant, therefore no coverage.

The Washington County Circuit Court agreed with the insurance company and said cow manure is a pollutant, as it constitutes “waste,” and “a reasonable person in the position of the [farmer] would understand cow manure to be a waste.”

The Falks appealed to the higher court, which found in their favor in December.

“… manure is not a pollutant under the farmowners policy,” Reilly wrote in the court decision.

“Manure is an everyday, expected substance on a farm that is not rendered a pollutant under the policy merely because it may become harmful in abnormally high concentrations or under unusual circumstances.”

“… Wilson Mutual clearly understands that part of the normal operations of dairy farming is the spreading of manure. It cannot now seriously contend that paying claims related to the Falks’ manure spreading is ‘a risk it did not contemplate and for which it did not receive a premium.’”

It is a decision that should be good news for all farmers.

West Virginia

Likewise, all farmers should be watching the latest from a case we previously reported on in West Virginia.

You might remember the U.S. District Court for the Northern District of West Virginia ruled in October that, contrary to EPA’s contention, rainwater from Lois Alt’s farmyard is exempt from federal Clean Water Act regulation.

Well, in December, the Environmental Protection Agency and the environmental intervenors filed an appeal.

The issue of Clean Water Act regulation of farmyard rainwater will now go to the U.S. Court of Appeals for the fourth circuit.

Let’s hope the appeals court upholds the lower court ruling — and uses language as clear as the court in Wisconsin.

By Susan Crowell