Part 1: Why there's no systematic testing

by Leah Ward
Yakima Herald-Republic

Learn more—Hidden wells, dirty water

With hundreds of square miles of irrigated farmland, the Lower Yakima Valley yields a bounty of fruit, hops, corn, hay and other crops.

Tourists come to taste the wine and enjoy orchard-dotted vistas that have been compared to the Napa Valley, even Tuscany.

Less visible is what's happening to the water below the ground, which more than 30,000 mostly poor, Latino residents depend on for drinking water. Most of that water is tapped from untested wells, including many older wells, dug before permits were required and records kept.

A little noticed 2002 study provided a disturbing clue: One out of every five wells tested around Sunnyside, Granger, Grandview, Mabton and Outlook had nitrate levels above what the federal government considers safe.

Nitrates, a potential health hazard (see sidebar), can come from human waste and crop fertilizer. Manure from cows is also a major source in the Lower Valley, where there are roughly one and a half cows for every resident.

Manure from the region's 72 dairies -- which make up the highest concentration of milk producers in the state -- is stored in large lagoons and sprayed as slurry on fields of corn and other crops grown to feed cows. If all goes according to plan, the crops absorb the nitrates as a nutrient.

But if the crops can't use all the nitrates, they remain in the soil and leach down toward aquifers tapped for drinking water.

No one has conclusively linked dairy manure to groundwater pollution. But clearly, the quality of groundwater has been compromised.

"The bottom line is that there is a widespread groundwater quality problem in the Lower Valley," hydrogeologist Bob Raforth wrote in a memo to his supervisors at the state Department of Ecology in 2006.

Raforth's memo cited a 2002 study conducted by the Valley Institute for Research and Education of Yakima. The study, paid for with settlement funds from a lawsuit against dairies accused of clean-water violations, has withstood scientific review.

Despite the alarming results, the study drew scant attention from environmental or health agencies and was essentially shelved, said Ron Sell, a retired U.S. Department of Agriculture chemist who led the research.

"No agency knows what to do with data that isn't theirs," Sell explained. "It tends to be an orphan."

Groundwater quality, too, is something of an orphan. Local, state and federal agencies each have a different piece of the regulatory pie and, as a result, often don't communicate or cooperate with one another. What's more, no law requires any agency to test private well water for quality.

Demographics and cultural barriers also hide the groundwater problem. Poverty is high -- about half the Lower Valley's residents fall below the federal poverty level. Most residents on well water are Latino farm workers who can't afford to test or aren't aware they might have a problem.

Blanca Balzadua, an outreach worker who recruited participants for the Valley Institute's study, said people were afraid they would lose their water if they allowed it to be sampled.

"There was a lot of fear. They'd rather not know if there's a problem," Balzadua said. "It takes a lot of educating."

The Valley Institute's study intentionally sampled the water of these residents because they aren't likely to do it themselves.

With barriers to testing already high, tracing the source of the contamination in the Lower Valley becomes especially fraught with political and financial hurdles.

So far, the state's dairy and livestock industries have fought aggressive testing programs that might help determine whether nitrates from cattle manure are contaminating groundwater. But no one, not even dairy producers, denies that manure is a source of nitrate pollution.

"We're part of the problem," said Jay Gordon, executive director of the Washington State Dairy Federation, the industry's trade association. "Our goal is not to be any part of it."

Few dispute that most dairies have made substantial investments since the 1990s to modernize their manure-management systems and minimize the chance for surface and groundwater pollution.

"We've taken a different tack since the early '90s," Gordon said. "We believe the best win is a win that protects the environment."

That doesn't mean the industry has given up the fight. Far from it. Gordon has been a tireless and effective lobbyist on behalf of his clients' interests as worries over animal waste grow both here and elsewhere in the country.

Records obtained by the Yakima Herald-Republic show the industry has gained the upper hand in legislative and regulatory battles over how manure-management rules are enforced and whether groundwater quality is suffering as a result.

In the past five years:

* The 2003 Legislature weakened enforcement of existing manure-management regulations by transferring authority to inspect from the Department of Ecology to the Department of Agriculture, an agency whose mission and political culture is to promote farming.

* With consent from environmentalists and open-records advocates, the Legislature has exempted certain records of dairy and livestock manure-management plans from the state Public Records Act. The public can't see the detailed plans for how a dairy handles its manure and instead must trust regulators that the plans are being followed. But those same regulatory agencies say the plans may not be effective.

* After the industry objected, the Ecology Department backed away in 2004 from requiring groundwater monitoring of large-scale dairies and feedlots.

* The Legislature has split manure-management duties between Ecology and Agriculture, a policy that the state's water-quality officials now conclude has failed the public.

The Lower Yakima Valley's persistent groundwater-quality problem -- whatever the source -- has come to exasperate Ecology Department Director Jay Manning.

"I feel strongly that it is time to do something about this," Manning said in a recent interview. "I'm not satisfied with my agency's performance or anyone's."

 

How it happened

Ten years ago, after several high-profile examples of manure being illegally dumped into drains, creeks and streams -- here and elsewhere in the state -- the Legislature responded by giving the Ecology Department new powers. For the first time, dairies would be inspected every 22 months to ensure state and federal water quality laws were being followed.

The agency was awarded $400,000 to hire additional inspectors and track information on dairies, such as herd size, acreage and manure-storage facilities.

Although the Ecology Department wasn't their favorite agency, dairies agreed the Agriculture Department's inherent mission to promote their industry could make any of its actions suspect.

"There was a belief in the dairy industry that Ecology would be more credible and we wanted to avoid the 'fox-guarding-the-henhouse' scenario," said Gordon of the state Dairy Federation.

Ecology got the program up and running six months ahead of schedule, conducting 2,313 inspections and issuing 34 penalties for violations over four years.

But the rigorous enforcement was too much for the dairy industry, which successfully pushed in 2003 to move enforcement to the Agriculture Department.

At a 2006 Agriculture Department meeting, Gordon charged that some Ecology inspectors overstepped their authority and used "scare tactics" that he blamed for causing heart attacks or the hospitalization of four dairymen on the west side of the state. Gordon said one man in his 80s was told he couldn't put manure on an old lake bed that had been farmed since 1882.

"I was not going to sit back and let that happen," Gordon said in a recent interview.

He said inspectors, instead of examining manure management, were "looking in all the closets," such as how motor oil was being disposed of or why there were bird droppings on the grounds.

The situation grew so tense that dairy producers threatened to block inspectors from their property.

It's not that dairy producers didn't want any enforcement, Gordon said. After all, if one dairy is out of compliance, others gain a competitive edge. But dairies wanted "educated inspectors who understood farming as well as water quality," he said.

Meanwhile, a budget crunch had all state agencies looking for cuts. The Ecology Department proposed eliminating the dairy program. Gordon, meanwhile, went to lawmakers with his plan to shift inspections to the Agriculture Department.

In the House, the plan found a sponsor in Rep. Kelli Linville, D-Bellingham, then chairwoman of the Agriculture Committee. Her district includes many dairies.

In the Senate, prime sponsors were Sens. Marilyn Rasmussen, D-Eatonville, and Dan Swecker, R-Rochester.

Rasmussen, a livestock owner and farmer, said the motivation was cost savings. Because Agriculture had long licensed milk producers and processors to ensure the safety of dairy products, the Legislature agreed the shift could save money, she said.

Swecker said recently he believed the Agriculture Department, with its history of "collaborating" with dairies, would do a better job of giving them technical assistance to bring them into compliance.

"We aren't in favor of pollution, but how do you get there? We really felt Ag had a good system going," Swecker said.

The legislation raised few eyebrows. No one in the all-Republican Yakima Valley delegation objected. And Rasmussen and Linville were powerful Democrats who could sell it to their caucuses.

Environmental lobbyists, who are often Puget Sound-centric in their focus, didn't object. But the legislation did make Washington different than most other states where responsibility for manure regulations is handled by water-quality environmental or natural-resources departments.

Tom Fitzsimmons, then the director of the Ecology Department and now chief operating officer of a Seattle real estate development company, argued against the switch, telling legislators that his department was moving from policing dairies to helping them comply with the law.

Fitzsimmons said in a recent interview that he felt it was important to keep enforcement in Ecology where all the rest of the state's water-quality programs are housed.

"My concern was that transference would turn the clock back, but the Legislature made the call," Fitzsimmons said.

As part of that call, the number of inspectors to enforce dairy manure regulations statewide was cut by about half -- from eight in 1999 to three and a half now -- even as the number of milking cows has remained relatively unchanged.

As a result, while Ecology averaged about 575 inspections a year, Agriculture can only do about half that number.

Meanwhile, the number of complaints about discharges of manure went up in 2007, leading to 11 enforcement actions for violations of clean-water laws, up from three in 2006.

A comparison of Agriculture's number of inspections and enforcement actions to Ecology's isn't possible. Nora Mena, director of the Livestock Nutrient Management Program at Agriculture, said inspectors from the two agencies used different categories in their reports. As a result, their procedures weren't standardized across the two agencies.

One of the Agriculture Department's toughest critics is Charlie Tebbutt, a lawyer with the Western Environmental Law Center in Eugene, Ore. The center sued dairies under the Clean Water Act in the 1990s and is now suing another Lower Valley dairy for alleged violations of the federal Clean Air Act.

"Ag shouldn't have anything to do with regulating dairies. It's a fundamental conflict of interest," Tebbutt said.

Robert Gore, director of the Agriculture Department in Olympia, said in a recent interview that his agency can both promote the dairy industry and protect the public's interest in clean water.

"We can do both. I think the ag industry are very responsive stewards of the environment," Gore said.

 

Secret records

Compliance with manure-management regulations is based largely on records kept by dairies.

Records include results of soil sampling to determine whether manure is being overapplied, and how much manure is produced and stored in lagoons on the property.

The records are kept as part of the dairies' Nutrient Management Plan, which is required by law. Agriculture officials say 98 percent of the dairies inspected last year were in compliance with their plans.

But while inspectors can review the complete plans and supporting records, the public cannot.

Under pressure from dairy lobbyists, the Legislature exempted the information from public-records laws, leaving rural residents on well water to trust the government that their groundwater isn't being threatened.

Dairy producers say they need confidentiality because they compete with each other to find land to grow corn for silage, a fermented feed.

Knowing exactly how many cows, the amount of manure produced and how much land someone has can be used to gain a price advantage on a land deal, dairies say.

"The competition for dirt in the Yakima Valley is intense," said Gordon. "We didn't want that to be used against us."

Similar waste-management plans are open to the public in Oregon and the nation's top four dairy producing states, California, Wisconsin, New York and Pennsylvania. In Idaho, the fifth-largest producer, the plans are not public.

Members of the Community Association for Restoration of the Environment, or CARE, a dairy watchdog group in the Lower Valley, used the state Open Records Law to get a copy of the 2000 nutrient management plan for the DeRuyter Brothers Dairy in Outlook. But it was so heavily redacted -- parts were blacked out with ink -- that experts who reviewed it subsequently said they were unable to determine if the plan was sufficient.

For example, schedules of how often and how much manure is applied to a field are blackened, as are the sizes of the lagoons, how much manure is produced and the land available to absorb the manure.

Bruce Bell, an environmental engineer who works as a consultant in Monroe, N.Y., testified in a hearing last year that without the details, there's no way for an independent third party to tell if the plan is being followed.

Bell, who was a paid expert witness for CARE in an ongoing legal battle over a proposed new large-scale livestock operation, said most violations stem from dairies that have a "best practices" plan but don't follow it.

"The best plans are just that, they're plans. We all hope they work, we all hope they're implemented properly, but we don't know. The state of the art is simply not that good."

Others say dairies -- which require a reliable source of clean water to operate -- risk too much not to have a workable plan.

"I wouldn't be concerned about modern dairy practices," said Robert Stevens, a soil scientist at Washington State University in Prosser. "It's the rare occasion now when we see a problem with a facility."

But Ecology Department officials have concluded that plans and permits don't guarantee that lagoons won't leak, that fertilizer and manure won't be overapplied or that irrigation runoff won't soak the deepest layers of soil in nitrate-rich water.

"A facility may not be violating the permit or their nutrient management plan but may still be polluting groundwater," the agency concluded in a 2004 internal document.

Editor's note: This story was appended to correct erroneous information that appeared in the originally published version.

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