WA CAFO GENERAL PERMIT

Andrea Rodgers Western Environmental Law Center

(206) 696-2851 rodgers@westernlaw.org

THE POLLUTION PROBLEM

•  The average dairy cow produces 120 pounds of manure per day.

•  Manure contains, among other things, bacteria (fecal coliform) and nutrients (nitrogen and phosphorus).

•  Some of this manure is getting into the surface and ground waters of Washington, causing a pollution problem and a public health threat.

•  A farm with 2,500 dairy cattle is estimated to create a similar waste load as a city of 411,000 people.

EPA, Relation Between Nitrate in Water Wells and Potential Sources in the Lower Yakima Valley, EPA-910-R-13-004 (2013) at 46.

Dr. Robert Lawrence from Johns Hopkins Bloomberg School of Public Health: ¡  “[M]anure management practices not only cause, but are and have

been, causing an imminent and substantial endangerment to human health or the environment.”

¡  “[T]o protect public health, actions must be immediately implemented to curb the amount of contaminants reaching groundwater and remediate the contamination caused by Defendant’s practices.” CARE, et . a l v. Cow Palace, et a l . , No. CV -13-30016-TOR (Exper t Repor t of Dr. Rober t Lawrence) .

¡  “[T]here can be no dispute that the Dairy’s operations may present an imminent and substantial endangerment to the public who is consuming the contaminated water.” CARE, et . a l v. Cow Palace, et a l . , No. CV -13-30016-TOR (Order Re: Cross Mot ions for Summar y Judgment) ( Jan. 14, 2015) at 104-05.

THE PUBLIC HEALTH RISK

¡ WSDA: Surface water discharges: 29 discharges in Whatcom County, none of which led to permit coverage.

WSDA Spreadsheet, Whatcom County Discharges, provided to Lummi Indian Nation.

SURFACE WATER: CAFOS ARE A POLLUTION SOURCE

County Size/notes Business Name Last Name Action NoteWhatcom out of business Sumas AL-MAR DAIRY Huttema NoticeWhatcom out of business Sumas DE BRUIN DAIRY De Bruin NoticeWhatcom medium Sumas EVER-LYN FARM Plagerman NoticeWhatcom large Portage VAN DYK S HOLSTEINS, LLC Van Dyk NoticeWhatcom medium Portage EAGLEMILL FARMS DeJong NoticeWhatcom out of business, moved to new locationPortage VANDER HAAK FARM (Tim) Vander Haak NoticeWhatcom small Portage STERK DAIRY Sterk PenaltyWhatcom medium Portage BEL-LYN FARMS Plagerman NoticeWhatcom large Sumas ART VANDER WAAL DAIRY Vander Waal NoticeWhatcom large Sumas JAMES HEERINGA DAIRY Heeringa NoticeWhatcom medium Drayton R T J FARM LLC Tjoelker PenaltyWhatcom medium Drayton R T J FARM LLC Tjoelker NoticeWhatcom small Sumas Breckenridge Farm Gonser NoticeWhatcom large Portage EDALEEN DAIRY LLC Moorlag PenaltyWhatcom large Portage EDALEEN DAIRY LLC Moorlag PenaltyWhatcom medium Sumas Ed Bosscher Dairy #2 Bosscher NoticeWhatcom large Drayton Western Waves LLC Dougherty NoticeWhatcom large Portage EDALEEN DAIRY LLC Moorlag PenaltyWhatcom small Portage Twin Brook Creamery Stap NoticeWhatcom large Drayton POMEROY FARM LLC Pomeroy PenaltyWhatcom small Birch Bay Snookbrook Farms LLC Snook PenaltyWhatcom small Birch Bay Snookbrook Farms LLC Snook OrderWhatcom medium Drayton R T J Farm LLC Tjoelker NoticeWhatcom medium Portage R Bajema Farm Inc Bajema PenaltyWhatcom medium Portage LENSSEN DAIRY LLC Lenssen NoticeWhatcom small Birch Bay Snookbrook Farms LLC Snook PenaltyWhatcom medium Sumas Vreugdenhil Farms LLC Vreugdenhil NoticeWhatcom small Portage Lagerwey Dairy Lagerwey NoticeWhatcom medium Portage RJ Blok and Sons LLC Blok Notice

ECOLOGY: 30 DISCHARGES IN FIVE REGIONS – NONE RESULTED IN

PERMITS

From: Cummings, Ron (ECY)To: Gildersleeve, Melissa (ECY); Moore, Bill (ECY); Jennings, Jonathan (ECY); Grout, Richard (ECY)Cc: Bresler, Helen (ECY)Subject: RE: EPA - CAFOS in Puget soundDate: Tuesday, July 07, 2009 11:10:42 AMAttachments: PS_Livestock_HUC_Action_Areas.xlsx

The attached spreadsheet is a list of AFOs/CAFOs in the Puget Sound area. The spreadsheet includes

operator and location information including latitude, longitude and HUC6 watershed and Puget

Sound Action Area the facilities are in. This is from our WPLCS system and is fairly up to date. The

locations are primarily dairies. WSDA manages the dairy data and is responsible for updating it.

Recently WSDA started managing this data in their own database. Ecology only has animal numbers

for the facilities covered by the CAFO permit. Ecology is in the process of issuing a handful (half

dozen or so) of permits to Puget Sound CAFOs.

If EPA wants animal numbers to determine if the facility is a Medium or Large CAFO, I would suggest

they request this data from WSDA. I believe WSDA could easily provide the operator, location, and

animal number information and confirm its accuracy. They could also provide information about

facilities that are “are having problem”.

Below is a list of facilities that I have received information about indicating a problem and/or

facilities we are working to get covered under the CAFO permit (Puget Sound Region). I the interest

of time, I didn’t do a extensive file dive. Let me know if you have any questions. Ron.

Edaleen Dairy

Allen Thomas Dairy

Art Vander Waal Dairy

Van Ingen Dairy

Dynes Poultry Facility

Blok Evergreen

Devries Dairy

LB Veen Holsteins

VanderHaak Dairy

Eaglemill Farms

Van Dyk S Hosteins, LLC

Coldstream Farms LLC#2

Dan Noteboom Dairy

Dejong Dairy

Rhody Dairy

Rockin R Ranch

From: Gildersleeve, Melissa (ECY) Sent: Monday, July 06, 2009 10:01 AMTo: Moore, Bill (ECY); Cummings, Ron (ECY); Jennings, Jonathan (ECY); Grout, Richard (ECY)Subject: EPA - CAFOS in Puget sound

ECOLOGY: 16 FACILITIES WITH A DISCHARGE “PROBLEM” SHOULD BE COVERED BY A PERMIT – �

NO PERMIT COVER AGE REQUIRED. �

¡  WA Department of Health: agricultural waste from dairy farms is the only “high” potential pollution source identified in closure of Portage Bay shellfish beds.

DOH, Sanitary Survey of Portage Bay (1997).

¡  Lummi Indian Nation: “The current closure . . . is reminiscent of the Portage Bay shellfish closure during the period from 1996-2006 . The elevated fecal coliform levels are attributed to manure and land management practices in the Nooksack River watershed, which discharges to Portage Bay .”

Letter from Lummi Indian Nation Chariman Tim Ballew to Governor Jay Inslee (October 9, 2014).

¡  Drayton Harbor: Fecal coliform counts highest when manure is being applied to fields.

Whatcom County Public Works, Drayton Harbor Watershed Water Quality Status, Fecal Coliform Bacteria – August 2015.

SHELLFISH BED CLOSURES

¡  Ecology’s Sumas Blaine Aquifer Studies: 66% of nitrogen loading comes from manure applied to crops.

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

Manureappliedtocrops(66%)Inorganicfertilizers (27%)Atmosphericdeposition(2.2%)Legumes(2.5%)Dairylagoons(0.2%)Irrigation(1.0%)On-SiteSewage(1.2%)

WHATCOM COUNTY GROUNDWATER: CAFOS ARE A POLLUTION SOURCE

¡ EPA December 2014 Yakima Dairies Consent Order Update: § “EPA concluded that the Dairies are a source of the

nitrate measured in downgradient monitoring wells and residential drinking water wells . . . there is heavy nitrate loading of the drinking water aquifer occurring within the Dairies’ footprint.”

§ “[T]he contribution from residential septic systems to nitrate contamination in the monitoring and residential drinking water wells downgradient of the Dairies is negligible.”

LOWER YAKIMA VALLEY GROUNDWATER: CAFOS ARE A POLLUTION SOURCE

ALL MANURE LAGOONS LEAK

•  “Although the parties dispute the magnitude of leakage, the fact that the lagoons leak is not genuinely in dispute.”

•  “Even assuming the lagoons were constructed pursuant to NRCS standards, these standards specifically allow for permeability and thus, the lagoons are designed to leak.”

CARE, et al. v. Cow Palace, LLC, et al., No. 13-CV-3016-TOR (Order Re: Cross Motions for Summary Judgment) (Jan. 14, 2015) at 27, 93.

¡  “NRCS guidance considers an acceptable initial seepage rate [from manure lagoons] to be 5,000 gallons per acre per day.”

NRCS Agricultural Waste Management Field Handbook, Chapter 10: Agricultural Waste Management System Component Design.

¡  Ecology: “The Water Quality Program has determined that a lagoon with two layers of synthetic geomembrane liner with a leak detection and capture system between the layers (if installed, maintained, and operated properly) does not have a discharge that requires a permit. Other lagoon designs are known to leak, which in certain areas is a discharge.”

WA CAFO Preliminary Draft Permit (August 2015).

¡ WSDA: Has confirmed lagoons leak significant amounts of nitrates in the Lower Yakima Valley using three different methods (UC Davis, USGS/Ecology, Darcy’s Law).

Cook & Hancock (WSDA), Preliminary Evaluation of Livestock Facility Contribution to Nitrate Levels in Groundwater – Yakima GWMA (June 2015).

MANURE LAGOONS LEAK

MANURE LAGOONS IN �WHATCOM COUNTY

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Data Sources: National Hydrography Dataset (1:24,000),

Washington State Department of Agriculture, Washington State Department of Ecology, USGS,

Washington State Department of Health

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CAFO Lagoons in Whatcom and Skagit Counties

Distance from CAFO lagoon* to nearest waterbody

Whatcom CountySkagit County

*Assessed in 2012 **Date stamp 5/13/15

Map Date5/20/15

MANURE LAGOONS IN �THE LOWER YAKIMA VALLEY

¡  Ecology: “A lagoon constructed below the seasonal high ground water table is essentially a direct discharge to ground water.” Ecology, Construct ion of Dai r y Lagoons Below the Seasonal High Ground Water Table ( Jan. 18, 2002) .

¡  Ecology: “if microbiological pathogens are not removed or treated in the unsaturated zone and they are allowed to migrate to ground water, they can be transported great distances, potentially contaminating ground water and ef fecting drinking water wells, surface water bodies, and shellfish habitat.” Ecology, Construct ion of Dai r y Lagoons Below the Seasonal High Ground Water Table ( Jan. 18, 2002) .

¡  Dave Erickson: “Denitrification is the conversion of nitrate to nitrogen gas by bacteria. It can only occur in poorly drained, anoxic conditions or organic soils where oxygen is depleted in the root zone. In the absence of denitrification, nitrate moves with the groundwater through natural processes until the groundwater is discharged to surface water, or extracted from a well.” CARE v. Cow Palace, LLC (Er ickson Repor t ) .

LEAKING LAGOONS CAN CONTAMINATE THE GROUNDWATER AND HYDROLOGICALLY

CONNECTED SURFACE WATER

¡ “Plaintiffs have presented indisputable evidence that such leaking is leading to dangerous accumulations of nitrates in the deep soil between the lagoons that eventually will reach the underlying aquifer . . . . there can be no dispute that the lagoons are leaking and thus allowing nitrate to accumulate in the soil at rates possibly higher than three million gallons per year.”

CARE. et al. v. Cow Palace, LLC et al. , No. 13-CV-3016-TOR (Order Re: Cross Motions for Summary Judgment) (Jan. 14, 2015) at 94.

LAGOON LEAKAGE IN COW PALACE CASE

¡ “Accordingly, because Defendants manure applications were not only untethered to DNMP’s Best Management Practices but done without regard to crop fertilization needs, presumably in an effort to discard their excess supply, the otherwise beneficial purpose of manure as fertilizer was eliminated and the manure discarded.”

CARE, et al. v. Cow Palace, LLC, et al. , 13-CV-3016-TOR (Order Re: Cross Motions for Summary Judgment) at 91.

OVER-APPLICATION OF MANURE TO FIELDS: COW PALACE EXAMPLE

¡ “Faria [Dairy]’s 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.”

CARE v. Faria Dairy , 2011 WL 6934707 (E.D. Wa. Dec. 30, 2011).

OVERAPPLICATION OF MANURE TO FIELDS: FARIA DAIRY EXAMPLE

§  “Model results based on measured field parameters indicated an average of 115 lb/acre of nitrate leached to groundwater from September through March.”

§ Recommendation: “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. This includes fine-tuning nitrogen loading analyses and taking groundwater into account. Groundwater monitoring will be needed to evaluate the effectiveness of measures to reduce nitrate loading to groundwater.”

Ecology & WSU, Nitrogen Dynamics at a Manured Grass Field Overlying the Sumas-Blaine Aquifer in Whatcom County, Ecology Publication No. 14-03-001 (March 2014).

OVER-APPLICATION OF MANURE TO FIELDS: WHATCOM COUNTY EXAMPLE

¡ The current voluntary approach that WSDA is using to CAFO pollution is not protecting human health and the environment.

¡ A strong CAFO General Permit from Ecology is

desperately needed to protect human health and the environment.

CONCLUSION

QUESTIONS

Andrea Rodgers Western Environmental Law Center

(206) 696-2851 rodgers@westernlaw.org