Washington’s battle over manure landed in an appeals court Tuesday, with a judge pressing the state Department of Ecology to explain why dairies aren’t forced to drill wells to check whether cow waste seeping from lagoons is polluting well water.
At stake are the terms of permits issued to concentrated animal feeding operations, or CAFOs. Environmental groups allege the terms are too weak to prevent nitrates from contaminating groundwater. High levels of nitrates in drinking water can be dangerous for humans, especially infants and pregnant women.
Picking up on one specific claim, Judge Linda Lee of the Court of Appeals Division II in Tacoma said she was baffled by the “complete absence of groundwater monitoring.”
Ecology attorney Phyllis Barney said tests would neither measure current conditions nor prevent pollution.
“What is in that groundwater today may be reflecting a practice that took place 10 years ago,” she said.
The case could eventually end up before the state Supreme Court and lay the groundwork for rules on storing and spreading manure, especially at the state’s 300 dairies. CAFOs are farms that confine livestock for at least 45 days in a year in an area where grass doesn’t grow.
The permits are voluntary, but following the terms provides farms some protection from fines and lawsuits. Ecology has issued 27 permits.
Ecology defends the permit conditions from attacks by anti-dairy groups.
Critics falsely assume farmers won’t follow the rules and that a few large Yakima Valley dairies linked to groundwater pollution by the Environmental Protection Agency typify dairies statewide, according to Ecology.
The Washington State Dairy Federation and Washington Farm Bureau are appealing one provision that affects when Eastern Washington farmers can spread manure on fields in the spring.
A coalition of environmental groups, led by the Puget Soundkeeper Alliance, has more complaints and wants Ecology to start over.
They claim manure lagoons should have synthetic linings. Ecology says that would be prohibitively expensive and economically unreasonable.
Earthen lagoons built and maintained to Natural Resources Conservation Service standards will protect groundwater, according to Ecology.
The three-judge panel didn’t dwell on lagoon linings, but they did focus on monitoring groundwater, particularly Lee.
“How would you ever know if there is a groundwater contamination issue if the groundwater is never, ever monitored?” she asked.
Barney said the point of the permit was to prevent pollution, not document it. She also said testing wouldn’t necessarily pinpoint the source.
“What’s in the groundwater plume now may be affected by a facility that is upgradient but discharges to that same aquifer,” she said.
The permit sets conditions on spreading manure. Ecology adopted “T-Sum 200,” a formula to guide when plants are growing and taking up nutrients in the spring.
Beginning Jan. 1, average daily temperatures are recorded. Every celsius degree above freezing equals a unit. Once units total 200, manure can be spread.
The formula was developed in the United Kingdom and is fine for Western Washington’s similar climate, but won’t fit colder and drier Eastern Washington, the dairy federation and Farm Bureau argue.
Virginia Nicholson, attorney for the dairy federation and Farm Bureau, said T-sum 200 will yield inferior crops east of the Cascades.
“Our Eastern Washington dairy farmers firmly believe that if they have to wait until T-Sum 200 before they can apply fertilizer, they will not be able to adequately fertilize their crop,” she said.
The other environmental groups participating in the appeal are the Sierra Club, Waterkeeper Alliance, Center for Food Safety, Friends of Toppenish Creek and the Community Association for Restoration of the Environment.