Got Milk? Got Manure!

Andrea Rodger is an attorney with the Western Environmental Law Center and is based in Seattle, Washington. Charlie Tebbutt is an attorney based in Eugene, Oregon, with his own law practice, the Law Offices of Charles M. Tebbutt, P.C.

Image for this story: CAFO Lagoons in Whatcom County

“The great question of the seventies is, shall we surrender to our surroundings, or shall we make our peace with nature and begin to make reparations for the damage we have done to our air, to our land, and to our water?

“Restoring nature to its natural state is a cause beyond party and beyond factions. It has become a common cause of all the people of this country. It is a cause of particular concern to young Americans, because they more than we will reap the grim consequences of our failure to act on programs which are needed now if we are to prevent disaster later.

“Clean air, clean water, open spaces — these should once again be the birthright of every American. If we act now, they can be.

“We still think of air as free. But clean air is not free, and neither is clean water. The price tag on pollution control is high. Through our years of past carelessness we incurred a debt to nature, and now that debt is being called.”1

That message was uttered by the unlikely environmentalist Richard Milhous Nixon in his 1970 State of the Union Address. Unfortunately, it rings true in Washington’s Dairy Country today.

Whatcom County has a long history as one of Washington’s top dairy counties.2 In 2007, dairy products accounted for 57 percent of all agricultural products produced in Whatcom County, at a market value of $186,491,100.3 But the financial success of the dairy industry has come at a grave, and hidden, cost to the people who call Whatcom County home.

Many county residents are losing their inherent rights to clean drinking water, to gather shellfish, and to enjoy the benefits of streams with healthy salmon populations. We are now suffering “the grim consequences” of our generation’s failure to ensure that dairy products are not produced in a way that sacrifices the health and welfare of the community.

Pollution from industrial dairy farms has largely gone unabated for decades: lack of agency implementation and enforcement of environmental laws, industry recalcitrance and secrecy, and legislative neglect and kowtowing are just a few of the barriers. But one look at the scientific data reveals that we cannot continue to fail to protect the waters of Whatcom County from industrial dairy pollution.

What is a CAFO?

Many dairies in Whatcom County are not small idyllic farming operations where cows graze on vast stretches of green grass. Instead, many are “Concentrated Animal Feeding Operations” or “CAFOs,” industrial operations where animals are not pastured, but confined in barns and feedlots, standing in mud, manure and urine 365 days per year. Industrial dairies produce vast amounts of waste that is stored in unlined manure storage lagoons—essentially holes dug into the ground—and as discussed below, over-applied to farmland.

The U.S. Environmental Protection Agency reports that an adult dairy cow produces over 120 pounds of manure waste per day, which is the equivalent of 20-40 human beings.4 According to Whatcom Farm Friends’ data, there were 48,964 cows on county farms in 2007. That equates to slightly less than 6,000,000 pounds of manure waste per day, or the equivalent volume produced by 1.0 to 1.5 million people, more than the combined populations of the cities of Seattle and Portland.

The disposal of the manure in unlined lagoons, many of which are in close proximity to Whatcom County’s rivers, has created a public health and environmental crisis of the first order. Currently, more than 20,000 northern Whatcom County residents get their drinking water from the Sumas-Blaine Aquifer, one of the most contaminated aquifers in the state.5

In 2011, the Washington Department of Ecology found that 44 percent of wells sampled contained nitrate concentrations exceeding the drinking water standard of 10 mg/L.6 That same year, Ecology tested 32 private domestic wells in northwestern Whatcom County,7 finding that “[n]itrate was detected in 31 wells (97%) with 15 wells (47%) exceeding the MCL [maximum contaminant limit of 10 mg/L].”8

In 2012, Ecology released results from a study that summarized 30 years of data collected from 515 wells.9 Nitrate concentrations exceeded the MCL in 29 percent of the sampled wells, with 14 percent at least double the legally acceptable limit.

Excessive nitrate concentrations in the groundwater are alarming. Nitrates in drinking water in excess of the standard of 10 mg/L create significant health risks to pregnant women, including spontaneous abortions, and can cause blue baby syndrome (methemoglobinemia), an illness that deprives infants of oxygen and can lead to death.10 Many other diseases have been linked to excess nitrate exposure as well, such as anencephaly, “a rare birth defect caused when the neural tube, which forms the brain and spinal cord, fails to close properly during early pregnancy, causing fatal deformities in the brain and skull.”11 Other diseases attributed to excessive nitrate consumption include diabetes mellitus, Raynaud’s disease, and peripheral neuropathy.12

AFOs Are Primary Polluters

The primary cause of the pollution is clear. Manure applied, or over-applied, to cropland purportedly as fertilizer accounts for 66 percent of the nitrogen loading problem, according to Ecology.13 The contribution of nitrates from on-site sewage systems, on the other hand, contributes a mere 1.2 percent of the problem. “Manure land application is the predominant source of nitrogen loading year-round except for the month of April when fertilizer application is at its peak. Manure loading is the greatest form of nitrogen application from April through September when dairy lagoons are being emptied,” the agency reported in 2008.14

When too much manure is applied to a field, the crops cannot uptake all of the nitrogen. The excessive nitrates therefore have only one place to go, given their mobility in the soil — straight into the groundwater.

On top of this, all lagoons leak. It is a simple principle of physics, known as Darcy’s Law, which describes the flow of a fluid through a porous medium (e.g., the ground). In essence, the industrial dairy manure lagoons are continually discharging nitrates into Whatcom County’s groundwater and then to the Puget Sound.

Ecology has documented Darcy’s Law in effect in Whatcom County for over 20 years. In June 1992, the agency monitored ground water quality for one year at a 12-year-old dairy lagoon in Whatcom County. The agency reported that “[i]n downgradient wells, TSS [total suspended solids], chemical oxygen demand, total organic carbon, ammonia-N, total P [phosphorus] and chloride consistently exceeded upgradient concentrations, probably due to leakage from the lagoon.”15

Two years later in 1994, an Ecology hydrogeologist found that leakage from manure storage lagoons affected ground water quality at dairy facilities in Whatcom County.16 He wrote, “Near-field monitoring at [a Whatcom County] Dairy shows that lagoon leakage is contaminating ground water in the immediate vicinity of [the dairy’s] lagoon. Far-field monitoring indicates that agricultural activities, including land application of dairy waste, are contributing nitrate contamination to shallow ground water.”17

Ground and Surface Water Both Impacted

In January 2015, Judge Rice in the Eastern District of Washington held that “the fact that the [dairy] lagoons leak is not genuinely in dispute.”18 In fact, according to Judge Rice, even if built to NRCS standards, “the lagoons are designed to leak.”19 The many industrial dairy lagoons located throughout Whatcom County — at best built to the same standards as the lagoons at issue in the case before Judge Rice — are continually leaking high levels of nitrates into groundwater.

It is the people of the community who are reaping the consequences of this pollution. The surface water pollution from industrial dairies is enormous, as demonstrated by shellfish bed closures in Portage Bay, Drayton Harbor and other areas in North Puget Sound. A Sanitary Survey of Portage Bay conducted by the Washington Department of Health justifying the closure of shellfish beds concluded, “The most probable sources of fecal coliform contamination lie within the drainage area of the Nooksack River and its tributaries, as the result of inadequate farm animal waste management practices.”20 Of the other potential pollution sources leading to the closure of Portage Bay shellfish beds, only agricultural wastes were identified as “high” probability sources. All other potential sources, including domestic wastes, storm water, wildlife areas, industrial wastes and sewage treatment plant discharges were identified as “low” probability sources.21 The Department of Health made it clear that “[a]gricultural wastes originating in the Nooksack River watershed are an actual, as opposed to a potential pollution source, and represent a high probability of being the principal source of fecal coliform contamination in Portage Bay.”22

The groundwater contamination from industrial agricultural operations is extensively documented, and not only hidden from public view, but largely ignored by the regulatory agencies charged with protecting Whatcom County waters.

The high levels of nitrates in the drinking water are forcing some Whatcom County residents to look for new sources of drinking water. The City of Sumas has recently filed an application to change their water rights to add two additional points of withdrawal to their existing water right.23 The reason for this change application is to serve replacement water to two neighborhood associations whose “water systems currently pump groundwater that has been contaminated with high concentrations of nitrate that exceed the primary Maximum Contaminant Level of 10 mg/L.”24

The Washington Department of Health required the Sumas neighborhood associations to sign compliance agreements “directing them to lower the nitrate concentration in their drinking water” so that it could be suitable for human consumption.25 Notably, no agency directed the industrial dairies in the area to take any action to change their manure management practices to eliminate the source of the pollution, or to remediate the contamination that has already occurred.

The question we face as a society is simple: can we afford to look the other way in light of all of this scientific evidence? The answer is no. Clean drinking water is the “birthright of every American.”

We Need a New Permit

Currently, Ecology is developing a new General National Pollution Discharge Elimination System (“NPDES”)/State Discharge Permit for all CAFOs in the state. The permit is designed to ensure that no pollutants are discharged into the ground and surface waters of the state. The old permit expired in 2011 and Ecology has been working on a new draft ever since. Currently, only 1 percent of industrial agricultural facilities in the state are covered by a discharge permit.

To protect the community, Ecology must issue a permit that contains the following requirements:

1. universal coverage for all medium and large CAFOs;

2. mandatory surface and groundwater monitoring; and

3. implementation of best management practices such as synthetically-lined storage lagoons and salmon riparian buffer requirements.

While there are other mechanisms that can and should be utilized in the permit to protect human health and the environment, these three components are essential.

Ecology is currently holding “listening sessions” with interested stakeholders and will be hosting a Whatcom County session in March, with a goal of issuing a final permit by the end of 2015.

Endnotes

1.Richard Nixon, State of the Union (Jan. 22, 1970), available at http://www.infoplease.com/t/hist/state-of-the-union/183.html (last visited Feb. 10, 2015).

2. “Whatcom County’s Dairy Industry is second out of 34 counties in the state and 29th out of 2,493 dairy counties in the U.S. (top 6%). The Farm Gate or market value is about $190 million. Darigold’s Lynden plant produces over 1.2 billion pounds of powdered milk annually. There were 151 farms and 48,964 cows in 2007. The number of farms in 2009 has dropped to 1 The average herd size is 651 cows. Washington is the #10 dairy state producing 5.7 Billion lbs. annually. Whatcom County’s average production is 23,344 lbs. per cow per year which equates to 2,714.4 gallons per cow or 133 million gallons!!!” Whatcom Farm Friends, Whatcom County Overview – Farm Facts (emphasis in original), available at https://www.piersystem.com/go/doc/1579/177780/ (last visited Feb. 10, 2015).

3. Whatcom Farm Friends, Whatcom County Overview – Farm Facts, available at https://www.piersystem.com/go/doc/1579/177780/ (last visited Feb. 10, 2015).

4. See http://www.epa.gov/region9/animalwaste/problem.html (located online Feb. 15, 2015).

5. Ecology, Report Summarizes Studies of Nitrate in Whatcom County Aquifer, available at http://www.ecy.wa.gov/news/2012/192.html (last visited Feb. 10, 2015).

6. Melanie Redding, Annual Report, Sumas Baine Aquifer Long Term Groundwater Quality Monitoring Network (2011).

7. Melanie Redding, EDB & 1,2DCP in Domestic Groundwater Supplies, Follow-up Investigation: Bertrand Creek Area (Whatcom County), Ecology Pub. No. 11-03-050 (Oct. 2011).

8. Id.

9. Ecology, Focus on Groundwater Quality in Whatcom County, Ecology Pub. No. 12-03-005 (May 2012).

10. Id.

11. Jonel Aleccia, “Fatal Birth Defect Stalks 3 Counties: State Finally Confers with Central Washington Women in Cluster of Cases,” The Seattle Times, available at http://seattletimes.com/html/localnews/2025702440_birthdefectclusterxml.html (last visited Feb. 15, 2015).

12. CARE et al. v. Cow Palace Dairy, LLC, et al., No. 13-CV-3016-TOR (E.D. WA) (Expert Report of Dr. Robert Lawrence, Johns Hopkins School of Medicine).

13. Ecology, Focus on Groundwater Quality in Whatcom County, Ecology Publication No. 12-03-005 (May 2012).

14. Melanie Redding, Nitrate Trends in the Central Sumas-Blaine Surficial Aquifer, Ecology Pub. No. 08-03-018 (July 2008).

15. Denis Erickson, Ecology Publication No. 92-e25, Ground Water Quality Assessment, Whatcom County Dairy Lagoon #2, Lynden, WA (June 1992).

16. Denis Erickson, Ecology, Effects of Leakage from Four Dairy Waste Storage Ponds on Groundwater Quality (June 1994).

17. Garland, D. and D. Erickson, Ecology, publication No. 94-37, Ground Water Quality Survey Near Edaleen Dairy, Whatcom County, WA, Jan. 1990-April 1993 (April 1994).

18. CARE et al. v. Cow Palace, LLC et al., No. 13-CV-3016-TOR (E.D. WA) (Order Re: Cross Motions for Summary Judgment) (Jan. 14, 2015).

19. Id. at 93 (emphasis added).

20. Wash. Dep’t of Health, Sanitary Survey of Portage Bay (Aug. 1997) at 13.

21. Id. at 3.

22. Id. at 7.

23. Ecology, Draft Protested Report of Examination for Change For a Public Health & Safety Application, Water Right No. CG1-26398C@1 (Dec. 2014).

24. Id. at 9

25. Id.