Before Assessing Blame, Hear Both Sides
Response to Allegations of Dairy Farm Pollution

The front page article in the March issue of Whatcom Watch “Got Milk? Got Manure!” penned by two attorneys paints a harrowing portrait of Whatcom County dairy farmers. If their story is to be believed, local dairy farmers are irresponsible, out-of-control “industrial operations” bent on destroying the very natural resources on which their families and farms depend for their survival. But is their portrayal a fair one? Are they — as attorneys are wont to do — excluding evidence from their narrative that might help a jury arrive at the truth?

Before rushing to judgment, Whatcom’s dairy families urge Watch readers to hear the other side of the story.

Full Disclosure

Both attorneys are formerly or currently associated with Western Environmental Law Center — whose business is suing animal agriculture over violations of environmental regulations, real or purported. The appearance, at least, of financial self-interest is undeniable.

Old Data

The authors support their allegations with numerous citations, but many of the cited references are beyond mandatory retirement age. 1997, 1994, 1992, 1990 — and Richard Nixon in 1970? These stale statistics ignore a very large elephant in the room: passage of the watershed Dairy Nutrient Management Act by the state legislature in 1998 (with dairy industry support) was the turning point in statewide dairy environmental compliance, when old ways were jettisoned and a new “normal” was embraced. The Act established a “zero discharge” standard on contaminated water from dairy farms, requires all dairies to follow a Nutrient Management Plan enforced with mandatory inspections, and erected a sanctions regime for violations. No other Washington State agricultural industry has stepped up to this level of management.

According to Ginny Prest, the Washington State Dept. of Agriculture’s Dairy Nutrient Program Manager, “From the initial start-up 17 years ago, the progress dairy farmers are making has been phenomenal.” During 2013 and 2014 combined, 94 percent of Whatcom County dairy compliance issues identified either by inspection or complaint warranted only “informal enforcement measures” — warning letters and Notices of Correction. Only a small percentage required formal enforcement action – a civil penalty or administrative order. Whatcom dairy farmers are doing a good job of meeting the environmental protection standards set for them by relevant authorities.

In 1998, for example, discharges to surface waters were the primary concern. As groundwater issues were being identified in 2004, WSDA, the Conservation districts and dairy producers developed tools to ensure that nutrients would be applied to meet crop needs and minimize leaching of nitrates to groundwater.

The Dairy Nutrient Management Act was amended in 2009, with dairy producers to include a recordkeeping requirement to show agronomic applications of all nutrients. Late in 2012, WSDA implemented rules to specify what tests had to be conducted and what information had to be maintained to meet recordkeeping requirements. Non-dairy livestock operations and crop producers do not have to meet this requirement.

Whose Nitrates? Whose Coliforms?

No one — including dairy farmers — wants contaminants in the water we all share. Dairies seem to get all of the blame for fecal coliform and nitrate contamination -— but is that warranted?

Sources of these contaminants can include runoff from chemical and manure fertilizers applied by home owners and crop producers, storm water runoff, leaking septic tanks, pets and other non-dairy farm animals, and the increasingly abundant wildlife that graces Whatcom County. Contaminants can also occur naturally, as decaying plant and tree residues deposit bacteria in our streams that test as fecal coliform. And don’t forget that decaying alder trees deposit nitrates, too. Dairy’s footprint has decreased by over 25 percent in the past 15 years, yet many of these other contamination contributors have seen their footprint increase. Despite all these qualifying factors, the attorneys still point their fingers at dairy as the culprit.

Taking Action

Still, dairies long ago accepted that they were part of the problem and stepped up to play a role in solving it. Much of a dairy’s State-mandated Nutrient Management Plan focuses on the responsible handing of manure. The keys are the application rate (amount), timing and placement. Dairy farmers must also understand the nutrient density of the material as well as projected crop utilization to ensure a safe application. And dairies are required to keep detailed records of their applications to verify their actions. It isn’t always a straightforward process.

“Whatcom County is complicated by a high water table and abundant precipitation,” Prest said. “Both create challenges to the storage and application of dairy manure in a way that protects both surface and ground water.”

But dairy farmers keep trying. In 2013, the Whatcom Conservation District introduced an innovative Manure Application Risk Management system supported with a real-time manure spreading advisory, recommended spreading setbacks, and a risk assessment worksheet, all to help farmers more responsibly manage the application process. Their monthly educational workshops supporting these management tools are well attended by local dairy farmers.

“Landowners throughout the farmed areas of the county voted to assess themselves to [fund], create and manage six watershed improvement districts and together have formed an Ag Water Board,” says Lynden dairy farmer Ed Blok, board president of the South Lynden Watershed Improvement District.

“All six watershed districts are committed to identifying sources of fecal coliform contamination and to take corrective measures … with increased monitoring, monthly education sessions and direct technical assistance to support enforcement of regulations,” Blok says.

These steps are consistent with the dairy industry’s 20-year record of working with consumers, other farmers, businesses, tribes and city, county, state and federal government to address environmental challenges on a systemic basis. Speaking of dairy’s efforts to protect shellfish beds, Bill Dewey of Taylor Shellfish Farms — a leading Puget Sound harvester — said, “The dairy industry, frankly, were some of the first to step forward. They’ve been great stewards in the watershed … they are really leaders in this effort to clean up the watershed.”

New Rules

One of the challenges Whatcom’s dairy farmers face in making further environmental progress is the very set of rules designed to encourage it. Current regulatory requirements are based largely on environmental data collected in the 1990s. Many things — including wetter prevailing weather patterns — have changed in the intervening quarter century. The regulations that bind dairies need to be examined and updated on the basis of current environmental needs.

Pointless Bureaucracy

Our lawyer friends conclude their article with a call for a state discharge permit for all medium and large dairy operations. Since all Washington dairies are already forbidden to make any discharge under the Dairy Nutrient Management Act, the object of such a permit is redundant and perplexing. 

Baseline and Beyond

Whatcom dairy farmers aren’t alone in their efforts to evolve their industry toward heightened sustainability. A Cornell University study reports that nationwide a gallon of milk produced today uses 90 percent less land and 65 percent less water than in 1944. Today, the national dairy herd is only 21 percent of its size in 1944 — while milk production has increased many times over and the quality and safety of dairy products has vastly improved. The dairy industry’s overall carbon footprint is 63 percent less than it was in 1944. The industry has committed itself to reducing its carbon impact by a further 25 percent by 2020. This was a dairy industry voluntary decision, not the requirement of a regulator.

There’s something cautionary about out-of-state attorneys prescribing solutions for what they see as Whatcom County’s environmental challenges. It’s not impossible that if those claiming to act on behalf of the environment get their way, the result could be the conversion of Whatcom’s already diminishing farmland to tract housing, strip malls and parking lots. One imagines that even the most concerned citizens might find that the ultimate environmental disaster.

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Reply from Writers of “Got Milk? Got Manure! Article

by Andrea Rodgers and Charlie Tebbutt

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.

Got Fiction? Got Fact!

Dairy Industry Piles More Manure On The Public; Places Blame For Pollution On The Alder Trees

In a recent Whatcom Watch article, the dairy lobby without irony accused us, public interest environmental attorneys,of acting in financial self-interest over an article in which we detail the Whatcom County dairy industry’s contributions to nutrient pollution that has closed Puget Sound shellfish beds, harmed Washington’s salmon populations and soiled residents’ drinking water. Our interest is in protecting the health and welfare of this community. In reality, the rebuttal was paid for by the industry found to be the largest source of nutrient pollution in Whatcom County by the Washington Department of Ecology, federal courts and the Environmental Protection Agency. Their rebuttal contains not one source or scientific citation (our article had 25 citations). Here are the facts; let the public be the jury.

The Newest Data:

• July 2014: Ecology concludes: “applications or releases of nitrogen-bearing fertilizers and animal manure to agricultural lands represent the largest sources of nitrate mass released to the environment.”¹

• March 2014: Ecology finds: “current agricultural practices, in particular the timing and rate of manure application to grass fields, are likely impacting groundwater nitrate”and “[r]educing nitrate leaching to groundwater at manured dairy fields, like the one in this study over the Sumas-Blaine Aquifer (SBA), will require improving manure application based on evolving science and technology.”²

• January 14, 2015: a federal district judge holds a dairy was causing and contributing to drinking water contamination in the Lower Yakima Valley and that “[t]he Dairy’s lagoons leak, on an annual basis, millions of gallons of manure.” “The fact that the lagoons leak is genuinely not in dispute.” “There can be no dispute that the lagoons are leaking and thus allowing nitrate to accumulate into the soil at rates possibly higher than three million gallons per year.” The Dairy’s own expert testified “he has never seen a study showing ‘there is no seepage from a lagoon.’”³

• March 2013: EPA reports “livestock operations are the largest potential source of nitrogen in the Lower Yakima Valley and that most of the livestock operations in the valley are dairies.” “The data confirmed that the dairies in the study area are a likely source of nitrate in drinking water wells downgradient of these dairies.” “To a much smaller degree, septic systems, biosolids from municipal wastewater treatment plants, and atmospheric deposition also are sources of nitrogen.”⁴

• September 2012: EPA states CAFO “case study sites exhibited ground water contamination by nitrate and/or ammonium. For most sites, this resulted directly from the operation, either through leaking infrastructure piping, leaking lagoons, or land application of CAFO waste, as supported through monitoring of stable nitrogen isotopes.”⁵

• December 30, 2011: a different federal district judge holds: “manure management practices are the predominant source of the nitrate contamination found in the [groundwater] monitoring wells and correspondingly, local groundwater. These practices include consistent over-application of manure to fields located adjacent to, and nearby, the Dairy.”⁶

It Is Not The Alder Trees:

• July 2008: Ecology states “[n]umerous studies have indicated that agricultural activities including dairy farms and irrigated agriculture are the main nitrate source to the Sumas-Blaine aquifer.”“[M]anure 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.”⁷

• May 2012: Ecology citesdairy manure applied to crops as 66% of the total nitrogen inputs to land over the Sumas-Blaine Aquifer.Inorganic fertilizers contribute 21%; atmospheric deposition 8%; legumes 2%; dairy lagoons 2%; irrigation 1%; on-site sewage systems 1%.⁸

• December 2014: EPA confirms “that the Dairies are a source of the nitrate measured in downgradient monitoring wells and residential drinking water wells” and recognized that “[i]t is unlikely that the effect of these Dairies on the groundwater is unique in the Lower Yakima Valley. EPA suspects that there are other dairies that similarly contribute significant amounts of nitrate to groundwater.”⁹

The Dairy Industry Has Not Done Enough:

• March 2014: Ecology finds “[t]hese newer methods [of applying dairy manure to crop fields] result in reduced loss of ammonia to volatilization and reduced odor, but potentially greater loss of nitrate to groundwater.” “Reducing nitrate leaching to groundwater at manured dairy fields over the Sumas Blaine Aquifer (SBA), like the one in this study, will require improving manure application based on evolving science and technology.”¹⁰

• September 2014: Lummi Nation forced to close 335 acres of Portage Bay shellfish beds due to high levels of fecal coliformcontamination.

• December 2014: Lummi Nation forced to close 500 acres of Portage Bay shellfish beds due to high levels of fecal coliform contamination.

Dairies Don’t Discharge?

Not only does the industry article misstate the law,¹¹ the Washington State Department of Agriculture released a document showing that there have been 30 surface water discharges into Whatcom County waters from 2008-2014.¹² Public records illustrateeven thisadmission is a vast underestimate of the actual number of discharges that occurred on a regular basis.¹³ Furthermore, because all manure lagoons leak, all dairies with lagoons in Whatcom County are actively discharging nitrates into the groundwater.¹³

We Agree On One Thing

These “out of state attorneys,” one of whom lives and has lived on the shores of Puget Sound nearly her whole life, believe the public has a right to know the truth about sources of water pollution in their community because “all waters of the state belong to the public.”¹⁴ On one point, we agree: “the regulations that bind dairies need to be examined and updated on the basis of current environmental needs.” Absolutely! And a CAFO Discharge General Permit with universal coverage for all medium and large CAFOs, surface and ground water monitoring, and best management practices such as salmon stream buffers and lined manure lagoons is the best way to get there.

Endnotes

1. Ecology, Chris F.Pitz, Licensed Hydrogeologist, Spreadsheet Models for Determining the Influence of Land Applications of Fertilizer on Underlying Groundwater Nitrate Concentrations (July 2014).
2. Ecology, Nitrogen Dynamics at a Manured Grass Field Overlying the Sumas-Blaine Aquifer in Whatcom County, Publication No. 14-03-001 (March 2014).
3. CARE/CFS v. Cow Palace Dairy, LLC.2015 WL 199345 (E.D. Wa. Jan. 14, 2015).
4. EPA, Lower Yakima Valley Nitrate Study Fact Sheet (October 2012).
5. U.S. EPA, Office of Research & Development, National Risk Management Research Laboratory, Ada, Oklahoma, Case Studies on the Impact of Concentrated Animal Feeding Operations (CAFOs) on Ground Water Quality, EPA 600/R-12/052 (Sept. 2012).
6. CARE v. Faria Dairy, 2011 WL 6934707 (E.D. Wa. Dec. 30, 2011).
7. Ecology, Nitrate Trends in the Central Sumas-Blaine Surficial Aquifer, Publication No. 08-03-018 (July 2008).
8. Ecology, Focus on Groundwater Quality in Whatcom County, Publication No. 12-03-005 (May 2012).
9. EPA, Yakima Dairies Consent Order Update (December 2014), available at http://www.epa.gov/region10/pdf/sites/yakimagw/consent_order_progress_update_dec2014pdf at 5, 9.
10. Ecology, Nitrogen Dynamics at a Manured Grass Field Overlying the Sumas-Blaine Aquifer in Whatcom County, Publication No. 14-03-001 (March 2014).
11. Contrary to what the Dairy Industry says, the Dairy Nutrient Management Act (DNMA) did not establish the “zero discharge” standard for industrial dairy operations. In 1899, the Refuse Act, still law today, made it unlawful “to throw, discharge, or deposit” “any refuse matter of any kind or description whatever” into waters of the state. 33 U.S.C. § 407. This requirement was reiterated with the adoption of the Federal Water Pollution Control Act Amendments of 1972, which are commonly referred to as today’s federal Clean Water Act (CWA), and CAFOs were specifically identified as “point sources” subject to the waste discharge permit requirement. 33 U.S.C. § 1362(14).The CWA mandates “that the discharge of pollutants into the navigable waters be eliminated by 1985.” 33 U.S.C. § 1251(a)(1). National Effluent Guidelines prohibit discharges from CAFOs into waters of the United States and have done so since the 1970s. 40 C.F.R. § 122.23. Dairy operations are also prohibited from discharging pollution into surface and ground water under state law as well, but the zero discharge requirement is not mentioned in, nor was it created by, the DNMA. RCW 90.48.160; RCW 90.64.
12. Whatcom County Discharges, on file with the authors.
13. Letter from Charles M. Tebbutt & Andrea Rodgers to Ecology at 41-44 (January 26, 2015), available at www.westernlaw.org/our-work/climate-energy/resilient-wildlands-communities/sustainable-agriculture-campaign-wa (documenting several discharges from industrial dairy operations).
14. RCW 90.03.010.