12 CapitalPress.com
December 18, 2015
Some farmers say they can’t afford litigation or more regulation
DAIRY from Page 1
‘Not if, but when’
Oregon-based
environ-
mental lawyer Charlie Teb-
butt, the lead attorney for the
suing groups, said the ruling
foreshadows higher environ-
mental standards for dairies.
“The question is, ‘When is the
industry going to comply? Not
if,’” he said.
Seven months after the
Cow Palace ruling, the Wash-
ington Department of Ecology
proposed regulating dairies
under the assumption that all
manure lagoons discharge pol-
lutants into groundwater.
The implication was that
nearly all dairies would have
to obtain a confi ned animal
feeding operation permit. Un-
der current Washington law,
a CAFO permit is mandatory
only if a livestock operation
has discharged pollutants into
surface water.
Having a permit, theo-
retically, can be a defense
against lawsuits. But it would
mean additional expenses, re-
cord-keeping and restrictions
on spreading manure on farm-
land.
Farmers statewide respond-
ed to DOE’s proposal with
plaintive comments. “I have
read and re-read the verbiage,”
wrote a dairywoman in Eastern
Washington. “I have to say, the
fi rst time, I just started crying.”
Some farmers say they
can’t afford litigation or more
regulation. The uncertainty
and expense would drive them
out of business, or they would
have to move from Washing-
ton.
The stakes are high. Wash-
ington has 425 dairies with
277,000 cows that in 2014
produced $1.6 billion worth of
milk, according to the U.S. De-
partment of Agriculture. After
apples, milk is the state’s most
valuable farm commodity.
“It’s not that we want to cry
‘wolf.’ But you can’t continue
to erode the economic viabili-
ty of an industry and expect it
will stick around. It will even-
tually die,” Appel said.
Bottom line
on lagoons
DOE’s proposal wasn’t a
direct response to the Cow
Palace case, but it all tied to-
gether, and dairy farmers say it
felt like a noose.
Many dairy farmers ob-
served that lagoons were
pushed on the industry by reg-
ulators in the 1990s. Now la-
goons were being called leaky
sources of pollutants.
“Is it too hard to under-
stand then that we are not
fans of ideas that come out of
these government agencies?”
a Whatcom County dairyman
wrote DOE.
DOE stressed that its pro-
posal was a “tentative draft.” It
plans to issue a formal propos-
al sometime next year.
Don Jenkins/Capital Press
Mitch Moorlag, general manager of Edaleen Dairy in Whatcom County, Wash., stands in one of the
dairy’s barns. Lining manure lagoons with synthetic material wouldn’t help the environment or the dairy
industry’s fi nances, Moorlag says.
2,500
Washington state
dairy operations
2,000
(All operations, herd sizes)
425 dairies:
Down 83%
from 1993
1,500
1,000
500
*Annual record keeping not available after 2007
0
1993
’95
’97
’99
’01
’03
Sources: USDA NASS; University of Wisconson, Madison
The DOE’s tentative pro-
posal was simple: If you have
a lagoon, you will need a per-
mit. Dairy farmers saw the
proposal as overkill because
of insuffi cient proof that all la-
goons leak.
Since then, matters have
become more complicated.
DOE still holds to the posi-
tion that all lagoons discharge
pollutants. But it now con-
cedes that in “rare” cases, the
pollutants don’t reach ground-
water.
Where pollutants are likely
to reach groundwater, howev-
er, dairy farmers probably will
be required to obtain a CAFO
permit, according to the de-
partment’s latest thinking.
It may not matter whether
the water is actually being pol-
luted.
The discharge of pollutants
into groundwater — no matter
its impact on water quality —
would be enough to trigger the
need for a permit.
The manure produces ni-
trates that naturally occur in
surface water and ground-
water, though at high levels
nitrates can be hazardous to
human health, especially for
infants and pregnant women,
according to the federal Cen-
ters for Disease Control and
Prevention. Under certain cir-
cumstances, nitrates are con-
verted to nitrogen gas through
a process known as denitrifi ca-
tion.
The dairy industry contends
that because of these natural
processes the manure seeping
from clay-lined lagoons large-
’05
’07* ’12 2014
Alan Kenaga/Capital Press
ly do not pose a threat to water
quality.
That position is supported
by the King County Depart-
ment of Natural Resources.
“To date, King County’s
regular water quality testing
has not identifi ed signifi cant
water quality problems associ-
ated with dairies,” the depart-
ment wrote to DOE.
King County offi cials dis-
agreed with the assumption
that lagoons pollute groundwa-
ter. “Such unproven assump-
tions could lead to expensive
fi xes or retrofi ts for dairies that
may be neither necessary nor
effective.”
Environmental groups are
pushing in the opposite di-
rection, calling for clay-lined
lagoons to be replaced by la-
goons lined with two synthetic
layers with a leak detector be-
tween the layers.
The linings are used by
municipal landfi lls, but are
unknown to the agricultural
industry.
Expensive proposal
In the wake of the Cow Pal-
ace ruling, Washington State
University professor Joe Har-
rison, of the school’s livestock
nutrient management program,
was asked to make a presenta-
tion on synthetic liners at a
regional conference hosted by
the EPA.
He sent an email to col-
leagues nationwide asking
about double-lined lagoons
and didn’t get a single re-
sponse.
Based on talking with ge-
otextile companies and a few
dairies with single-lined la-
goons, Harrison estimated
double-lining lagoons would
cost $339 a cow for materials
and installation. Getting the
lagoon ready — engineering,
manure removal, dirt work —
could add another $300 per
cow, based on the experience
of one dairy.
Dairy farmers recoil at the
expense, especially since they
won’t be able to show lenders
how the liners will increase
revenue.
“It’s just coming right off
the bottom line,” said Mitch
Moorlag, general manager of
Edaleen Dairy in Whatcom
County.
The Natural Resources
Conservation Service, which
sets lagoon standards, favors
clay-lined lagoons.
The Cow Palace has agreed
to install synthetic liners, but,
in comments sent to DOE,
NRCS said the court ruling
didn’t change its advice to
farmers. NRCS warned that
synthetic liners can be worn
or torn, leading to manure re-
leases worse than any seepage
through clay liners.
Fertilizer to waste
It’s unclear how far-reach-
ing the Cow Palace case will
be, which puts dairy farmers
on edge.
U.S. District Judge Thomas
O. Rice based his ruling on the
conditions at an 11,000-cow
dairy, which produces 100
million gallons of manure a
year. Rice found the dairy had
become “untethered” from its
state-approved dairy nutrient
management plan. In one in-
stance, the dairy spread 7.6
million gallons of manure on
an already suffi ciently fertil-
ized alfalfa fi eld, according to
Rice’s written decision.
Rice reasoned that once
excess manure nutrients sank
below plant roots, they are no
longer a useful product, fer-
tilizer. At that point, the nutri-
ents become a discarded solid
waste and subject to the Re-
source Conservation and Re-
covery Act. For the fi rst time,
the nation’s fundamental law
against dumping hazardous
garbage was applied to uncon-
tained cow manure.
The ruling was not a sweep-
ing condemnation of spreading
manure on fi elds or storing it
in lagoons. But it was a warn-
ing that dairies may have to
account for where every bit of
manure ends up.
The Cow Palace case makes
dairy farmers nervous, par-
ticularly in Whatcom County,
which has about a quarter
of the state’s dairies and has
drawn Tebbut’s attention.
The Washington State De-
partment of Agriculture levied
a total of eight fi nes against
dairies for discharging pollu-
tion in 2013 and 2014. Seven
violations were in Whatcom
County.
“The farmers in Whatcom
County area have had a lot of
problems for a lot of years,”
Tebbutt said. “We don’t want
to litigate. But the only way
action happens is when we
have a seat at the table.”
In Yakima County, Tebbutt
represented a local group, the
Community Association for
the Restoration of the Envi-
ronment, and the Washington,
D.C.-based Center for Food
Safety. The suit originally
named fi ve diaries. One closed
and two consolidated owner-
ship, leaving Cow Palace, Bos-
ma-Liberty Dairy, and George
DeRuyter and Son Dairy.
Rice issued his ruling to ad-
dress several pre-trial motions.
The ruling tilted the case in
favor of the suing groups, and
the dairies agreed to operation-
al changes in an out-of-court
settlement.
At the very least, the Cow
Palace case has created uncer-
tainty, Washington State Dairy
Federation policy director Jay
Gordon said. “There’s a whole
new federal statute that’s been
applied to dairies. Everybody
is going, ‘What if this gets ap-
plied to my farm? What are the
rules?’”
Farmers in
‘crisis mode’
Gerald Baron’s background
in public relations includes
representing businesses faced
with “organization-threatening
events.” He’s written a book
about emergency communica-
tions in the age of instant news
and social media.
He’s now the executive
director of Whatcom Family
Farms, an offshoot of the coun-
ty’s dairy federation formed
this year with irrigation dis-
tricts and other farmers. The
group’s message is that farm-
ers are responsible land stew-
ards in perilous times.
“I would say ‘crisis mode’
is an accurate description,”
Baron said.
In Yakima, groundwater
pollution was a problem. In
Whatcom County, the Nook-
sack River fl ushes fecal coli-
form bacteria onto Lummi Na-
tion shellfi sh beds in Portage
Bay. Fecal coliform lives in the
digestive tracts of warm-blood-
ed creatures, including humans,
and is excreted in feces.
A report by a county-level
advisory group last year said
the water fl owing past up-
stream farms is cleaner than
in the 1990s. There are fewer
dairies, and the state’s 1998
Dairy Nutrient Management
Act improved how farmers
handle manure, according to
the report.
However, pollution from
many sources continues to con-
taminate shellfi sh beds. Baron
said the county’s dairy farmers
are braced for a lawsuit.
In a recent newspaper com-
mentary, the chairman of the
Lummi Indian Business Coun-
cil, Tim Ballew II, said agricul-
tural producers should not seek
to defeat or weaken DOE’s pro-
posal. Efforts to obtain further
comment from the tribe were
not successful.
In an interview, Tebbutt was
noncommittal about whether
farmers can expect a lawsuit.
But he said the dairy industry
has been “all talk and no ac-
tion.”
“Is it fair they pollute in or-
der to profi t?” he asked. “Are
you allowed to pollute at the
expense of your neighbor? The
answer is ‘no.’”
Whatcom Family Farmers
contend that water running past
their farms is already tainted by
a fast-growing area across the
border in Canada.
The water passes dairies
and picks up more pollution
in urban areas, according to
the group. Whatcom Family
Farmers warn that targeting
dairies will lead to farms being
converted into subdivisions.
That will lead to more septic
tanks and hobby farms and to
greater use of lawn fertilizers.
“The point is, it’s a com-
plex picture,” Baron said. “All
the fi ngers have been pointing
at them (farmers). … What
we’re saying is, ‘We’re not the
primary contributor.’”
DOE has not identifi ed the
pollution’s main source, agen-
cy spokeswoman Krista Ken-
ner said. “We are looking at all
of them.”
Dairies in Yakima County
also argued they shouldn’t be
singled out for the region’s
groundwater troubles. Judge
Rice ruled that wasn’t the is-
sue. Dairies were a “meaning-
ful” contributor to pollution,
but plaintiffs didn’t have to
prove they were the primary
polluters. The plaintiffs could
pick their target.
Rice also ruled that while
experts may disagree about
how much manure seeps from
lagoons, the important point is
that fl uids move through per-
meable substances. The judge
reasoned that the pollution will
reach groundwater.
The dairy argued that it
might take decades, if ever, for
that to happen. Rice said he
wasn’t going to wait for people
to get sick.
Bill receives cool reaction from proponents of Klamath agreements APHIS authorized
KBRA from Page 1
Congress’ inaction
Bills to authorize removal of the
dams have languished in Congress
since 2011. Rep. Greg Walden,
R-Ore., a longtime opponent of dam
removal, unveiled an eleventh-hour
draft bill on Dec. 3 to move forward
on other aspects of the agreements
while putting approval of dam re-
moval in the lap of the Federal Ener-
gy Regulatory Commission.
Walden’s bill won praise from
Rep. Rob Bishop, R-Utah, chair-
man of the House Natural Resources
Committee, who said proposed fed-
eral land transfers to the Klamath
Tribes in exchange for waiving se-
nior water rights “are ideas I could
strongly support in order to move
forward.”
However, the bill received a
cool reaction from proponents of
the Klamath agreements, who have
warned that water-sharing compo-
nents of the pacts could crumble
if Congress doesn’t authorize the
package — including dam removal
— before the end of the year.
So far, no efforts have been made
to merge Walden’s bill with one by
Sen. Ron Wyden, D-Ore., which in-
cludes dam removal but has failed
to advance beyond the upper cham-
ber’s Energy and Natural Resources
Committee. And lawmakers don’t
appear to be in any hurry to get a bill
passed.
“We had hoped people would
agree to remain at the table” into
2016, Walden spokesman Andrew
Malcolm said. “We’re hoping that
what will work for people on Dec.
31 will still work on Jan. 1 or Jan.
2.”
House Speaker Paul Ryan’s offi ce
did not return a call from the Capi-
tal Press seeking comment about a
timeline for moving Walden’s bill
forward.
The 42 signatories of the pacts
that included the dam removals as
well as water-sharing and numerous
conservation efforts in the basin al-
ready renewed the agreements once,
in late 2012. However, looming
deadlines lend more of a sense of ur-
gency this time, proponents say.
“I think this time is different,”
said Glen Spain, northwest regional
director for the Pacifi c Coast Feder-
ation of Fishermen’s Associations.
“We’re a short period of time …
from deadlines when this is all sup-
posed to happen. We’ve done every-
thing that’s been required in this, in-
cluding fi nding non-federal money
for dam removal.”
Contingency plans
Already, regulatory agencies
are resuming the task of reviewing
PacifiCorp’s dam-relicensing ap-
plication, which the company has
estimated would cost at least $300
million and leave the company ex-
posed to other costs from litigation
and added water quality regula-
tions. Under the Klamath Hydro-
electric Settlement Agreement,
the cost to PacifiCorp’s ratepayers
would be capped at $200 million.
Trust funds from surcharg-
es to PacifiCorps customers for
dam removal have amassed more
than $100 million, which will ei-
ther be refunded or used to meet
relicensing conditions if the
Klamath agreements die, Gravely
said.
The Karuk Tribe and other
proponents of removing the dams
have vowed to urge the state wa-
ter boards to deny PacifiCorp’s
relicensing applications under the
Clean Water Act, which would
force the dams to be removed any-
way. But such a denial would be
unprecedented, Gravely said.
Meanwhile, local opposition
to dam removal has become more
entrenched in the Klamath Basin
as opponents have been elected to
majorities on the Klamath County
Board of Commissioners and sev-
eral irrigation district boards.
“I’d like more time,” said Add-
ington, whose KWUA represents
irrigation districts in the Klamath
Reclamation Project. “I, for one,
and my organization would say
we want to salvage this thing, and
we’d be ready to have a conversa-
tion about that. But the Yurok Tribe
has made it clear that it wants to
move in a different direction …
and the Klamath Tribes have made
a similar statement.
“I just think we risk a harder-line
element saying collaboration didn’t
work” if the parties try to keep the
agreements together, he said.
Looming crises
Without the water pacts in place,
growers in the Upper Klamath Ba-
sin could face another water crisis
this spring like the one they en-
countered in 2013, when a total
shutoff of irrigation water prompt-
ed landowners to begrudgingly
work out their own water-sharing
agreement with the tribes that was
also contingent on the dams being
removed.
While project irrigators have a
stipulated settlement with the tribes
that will remain even if the KBRA
dies, the lack of an agreement could
put more pressure on those growers’
water supplies, too, as more water
for fi sh is sought under the Endan-
gered Species Act, Addington said.
As to whether any future agree-
ment could be salvaged from the
wreckage, Addington said he’s un-
sure.
“Either … the KBRA is going to
be a footnote in the interesting his-
tory of water in the Klamath Basin,
or it’ll be the next step to something
bigger,” Addington said. “I think it’s
too early to say.
“I hate football analogies, but
I feel like we got to the goal line
and were just not able to punch it
in,” he said. “We’ve got a House
bill out there and a Senate bill out
there … I just wish the folks in Con-
gress would do what all the parties
did, which is to lock themselves in a
room and get it done. It’s the season
of miracles, so who knows?”
572 crop fi eld
trials in 2014
WHEAT from Page 1
Consumers in many Asian
nations are leery of genetically
engineered food, however, and
Japan and Korea temporarily sus-
pended wheat purchases after the
GE wheat was discovered in Or-
egon.
The new APHIS permit re-
quirement probably wouldn’t have
made a difference in the Oregon
case, however, and perhaps not in
Montana. Monsanto field-tested a
“Roundup Ready” wheat variety in
16 states, including Oregon, from
1998 to 2005, but the Oregon field
where it was found was not one of
the test sites. The Montana field
was approved for GE wheat testing
from 2000-2003, but the glypho-
sate-resistant volunteers weren’t
identified until 2014. Monsanto
withdrew its application to have
the GE variety approved in 2005.
APHIS said it authorized 572
crop fi eld trials in 2014, 21 of them
for wheat. Of those, authorizations
went to six companies, four universi-
ties and to USDA.
Mallory-Smith, the OSU weed
scientist, said growers are undoubted-
ly interested in glyphosate resistance
in addition to traits such as disease
resistance and drought tolerance.
GE wheat is likely to be deregulated
“sooner or later,” she said.