ICARE ISDA Correspondence Re 10-16 Meeting

8/14/2019 ICARE ISDA Correspondence Re 10-16 Meeting

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November 1, 2009

Celia Gould, DirectorIdaho State Department of AgricultureP. O. Box 790

Boise, Idaho 83701-0790

Dear Director Gould,

This letter is a follow-up to ISDAs October 16, 2009 meeting with ICAREs ExecutiveDirector, Alma Hasse, and a member of its Board of Directors, Shavone Hasse. Itcontains personal comments and questions prompted by our meeting as well as requestsfor public records and declaratory rulings (Idaho Code 9-338 and 67-5232).1 We trust thatthe Department is fully capable of discerning which legal requirement applies to eachrequest, and that we will not have to repeat ourselves.

First, thank you for your time, patience, and effort in bringing so many state-leveldecision-makers to the table. We greatly appreciate your and Deputy Director BrianOakeys desire to problem solve and avoid unnecessary conflict.2 However, asproblems cannot be solved between parties who fundamentally disagree about the natureof the problem itself, we felt that our time would be best spent in clarifying our points ofdisagreementa task that, as Im sure you will agree, requires hard questions. To thisend, ICARE found the meeting highly educative and worthwhile. We apologize if ouradmittedly pointed questions and comments caused personal discomfort to any of theattendees. This was not our intent. Our purpose was to meet with public officials in theirofficial capacity; our questions were directed toward the roles, responsibilities, and dutiesof those offices, not at the persons who happen to hold them.

We apologize if our intentions were misconstrued, but we do not apologize for thecontent of our inquiries. We aroused quite a bit of umbrageat one point during ourmeeting, Deputy Director Oakey expressed his consternation at what he perceived as ourrudeness; at another, you stated that attendees would not stay to get slapped around theearsyet we never once resorted to the kind of lazy, low personal insults that wouldhave justified these reactions. In order, we assume, to render their perspectives morecomprehensible, some at the table felt the need to refresh our memories as to certainelementary civic principlessuch as the idea that we are a nation of laws. In the spiritof these well-meaning attempts, we make a similar offering: democracy cannot flourishwithout rigorous debate. As with rigorous physical exertion, so too with rigorous debate:it is severe, hard to endure. And yet, by straining it, physical rigor strengthens the body;by pushing at the boundaries of civil exchange, discursive rigor does the same. Though

1 We respectfully request that ICARE be exempt from any fees associated with fulfilling the public recordsrequests, as we are an Idaho nonprofit corporation with extremely limited financial means; additionally, thecollection or assessment of a fee would hamper the public interest purpose of this requestto demonstratethese claims we have enclosed copies of ICAREs certification as an Idaho nonprofit corporation and itsmost recent bank statement in the paper version of this letter (Idaho Code, 9-338(8C)).2 Please be aware that all quotes are from personal notes taken during the meeting.


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Please cite the statute that states that an agricultural (i.e. CAFO) source must be thesole contributor to groundwater contamination for the Department of Agriculture totake an enforcement action against an operator.

We would greatly appreciate it if the Department would help us to clarify what itperceives as our confusion about the roles and responsibilities dictated by Idaho Statuteand the inter-agency beef and dairy MOUs.5 Specifically, we request a detailed outlineof: 1) The steps the Department is statutorily authorized/mandated to take should it benotified and/or otherwise become aware of groundwater contamination linked to beef ordairy CAFOs; 2) the threshold or bar for taking an enforcement action in such cases; and3) the range or limit of possible enforcement action(s). Additionally, please explain to usthe Departments standard for determining what does or does not constitute sufficientevidence to link groundwater contamination to beef or dairy CAFOs. We further requestto know the Departments policy concerning what person(s), institution(s), agency(ies) orother body(ies) is(are) responsible for seeking out and identifying such sufficient

evidence, as well as any circumstances in which the Director and/or Department retainsdiscretionary or interpretive authority/power. Please cite the statute(s) that authorize orestablish each of these steps, standards, limits, thresholds, actions, ranges, and policies.6

Please clarify the meaning and/or implications of the following statement (made byDeputy Director Oakey in the October 16th meeting):

If you had evidence that this facility [DeRuyter & Nederend] is the solesource of the groundwater problems in the Marsing area, I would be happyto review that information.

Specifically, does the Deputy Director mean that he would not be willing to reviewevidence that these facilities were significant, major or majority contributors? Does hemean that it is the responsibility of the citizens of the state of Idaho to first determineon their own, without assistance from public officials or agencies or experts employed bythe statethe source of groundwater contamination prior to bringing contaminationconcerns to the attention of public officials? Please cite the statute(s) that provide theauthority/basis for your answers.

certain policies, etc. Please note: we are not asking for copies of applicable statutes. Should the Department

send copies of statutes, or direct our attention to certain Titles of Idaho Code without providing theconcrete detail hereby requested, we will consider our questions unanswered. This is applicable to each andevery request for a citation of statutory authority herein.5 As a side note, when we reviewed the versions posted online, we noticed that they incorrectly listed EPAas a party to the agreements (as you know, EPA pulled out of both of these MOUs). As these MOUs arecentral to informing the public about the states CAFO regulations, this misleading detail must becorrected. In fact, EPAs withdrawal should give the Department ample reason to consider revisiting theseMOUs in their entirety.6 This is not a request for legal advice or opinion; it is a request for clarification of public policy and amatter of public record.


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Department does still have authority to act at Sunnyside, at least with regard to manureclean up. If that waste is still contaminating groundwater, as we have reason to believe itis, then the Department has even more reason to become involved: as already discussed,the Department is responsible for ensuring that livestock waste does not contaminate thewaters of the state.

Marsing / Sunnyside Data

As a preliminary observation, we must say that we were dismayed by the Departmentsdismissive attitude toward the nitrate MCL. This attitude is best captured by DeputyDirector Oakeys indifferent response to a question about whether the 170mg/L nitratelevels recently registered at a Marsing mega-dairy were unacceptable: when pressed, allthe Deputy Director was willing to concede is that such results are above the MCL. Wewere truly stunned that the Department could maintain such a blas posture in the face ofreadings 17x above the acceptable limit. Because of this, we took it upon ourselves toreview the research about the potential human health effects of elevated nitrates. Apart

from the already well-known link to blue-baby syndrome, we found that nitratecontamination is associated with a number of serious health problems includinghyperthyroidism, cancer, diabetes, non-Hodgkins lymphoma, and birth defects.7 Toignore or dismiss these very real public health threats is demonstrative of negligentdisregard for the public health at the very least; at worst it indicates a willingness tosacrifice the public health for the sake of a handful of powerful polluters. We urge theDepartment to review the data and reevaluate its stance on this matter.

When discussing the groundwater nitrate concentration distribution map (figure 6) onpage 13 of the ATSDR Sunnyside Health Consultation the Deputy Director stated thathe is not a water quality expert, implying that he is not qualified to interpret the map. Afew moments later the Deputy Director indicated that the Departments Sunnyside areadata had shown up-gradient, cross-gradient, down-gradient issues. Please provide thenames and contact information of the water-quality experts who are, presumably, thesource of this information, as well as the names and locations of the documentscontaining the data to which he was referring.

Deputy Director Oakey also indicated that he had reason to believe that residential septicsystems could be significant contributors to the nitrate contamination in the Sunnysidearea. Please explain the basis for his apparent disagreement with the January 2009Sunnyside Groundwater Monitoring Project Report, prepared by IDEQs Lisa Rowles,which states:

The density of the septic systems across the study area does not appear tobe high enough to create the nitrate concentrations currently being

7 For a summary of the research and references, see: Ward, Mary H., et al. Workgroup Report: Drinking-Water Nitrate and HealthRecent Findings and Research Needs. Environmental Health Perspectives113(11) (November 2005): 16071614. Published online 2005 June 23.


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detected in the ground water in the study area (2009 Monitoring Report,pg. 6).

Does the Deputy Director have an empirical basis for his difference of opinion withDEQ, or was this disagreement merely his personal/non-professional opinion? If the

Deputy Director does have an empirical basis for his difference of opinion, pleaseexplain. Also, please provide the names and contact information of any experts whoconsulted with the Deputy Director on this matter and contributed to his apparentdifference of opinion.

Given the Departments desire to quantify the percent of contamination contributed bydifferent potential sources, and given that the only persons qualified to make suchassessments would be statistics experts in consultation with water quality experts, wewould like to request the names and contact information of any statistics experts theDepartment has contacted to review the Sunnyside and/or Marsing area data, as well asthe names of the documents/files those experts relied on to form their opinions. If the

Department has not contacted any statisticians, we would like an explanation as to why.

At the meeting, we brought up the Departments mandate to find the source of nitratecontamination (in Marsing and elsewhere) and to fix it. The Deputy Director indicatedthat he was unaware of any such mandate. We have since located this mandate in section200 of the Groundwater Quality Rule (IDAPA 58.01.11):

The following numerical and narrative standards apply to all ground waterof the state and shall not be exceeded unless otherwise allowed in this rule(Groundwater Rule, pg. 6).

As you are fully aware, the MCL for nitrate under this rule is 10mg/L; and, as we havealready stated (and as the Department acknowledged at the meeting it was previouslyaware), nitrate contaminant levels in the Marsing area, around the DeRuyter andNederend dairies, are consistently far above that levelup to as much as 170mg/L.

The state is failing to meet its self-imposed legal requirement. This is commonknowledge. The Department of Agricultures share of this failure is more specific:

Contaminant concentrations, alone or in combination with othercontaminants or properties, shall not cause the ground water to behazardous, deleterious, carcinogenic, mutagenic, teratogenic, or toxic(Groundwater Rule, pg. 10)

And:

No person shall cause or allow the release, spilling, leaking, emission,discharge, escape, leaching, or disposal of a contaminant into theenvironment in a manner that:


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a. Causes a ground water quality standard to be exceeded(Groundwater Rule, pg. 13)

Not only have unrestrained beef and dairy CAFO operators been allowed to act in amanner that causes a ground water quality standard to be exceeded, in places like

Sunnyside and Marsing their actions have caused deleterious, if not outrighthazardous, ground water contaminant concentrations.8

The discovery of any contamination exceeding a ground water standardthat poses a threat to existing or projected future beneficial uses of groundwatershall require appropriate actions, as determined by theDepartment, to prevent further contamination. These actions mayconsist of investigation and evaluation, orenforcement actions ifnecessary to stop further contamination or clean up existing

contamination, as required under the Environmental Protection andHealth Act, Section 39-108, Idaho Code. (Groundwater Rule, pg.14, our

emphasis)

As the language of this section makes clear, ISDA must prevent further degradation fromagricultural sources (i.e. CAFOs), and assist DEQ in cleaning up existingcontamination due to these sources. 9 The Act referred to in this paragraph providesadministrative and civil methods for dealing with polluters. If enforcement actions arenecessary to fulfill this legal obligationwhich, based on the state of the situation in theMagic Valley, Marsing and the usable history provided by Sunnysides operation,appears to be the casethen the Department must take enforcement actions. As it alsoprovides that violators shall be liable for state-incurred expenses, the states currentbudget woes do not excuse a failure to enforce the law (IC 39-108(6)).

During the course of the meeting Deputy Director Oakey indicated that, according to thebeef and dairy MOUs, ISDA is merely required to be partners with DEQ ingroundwater monitoring. This is an incomplete assessment of ISDAs authority: in thecase of beef and dairy CAFOs, ISDA is the agency responsible for taking theenforcement actions required to obtain compliance with groundwater quality standards. Ifthe primarily administrative methods ISDA commonly resorts to are inadequate to obtaincompliance, then it must pursue available civil enforcement actions (IC 39-108 and 22-106). If these, too, are inadequate to obtain compliance and meet groundwater qualitystandards, then obviously the problem is a structural one that needs to be brought to theattention of lawmakers and the Governor so that they can take appropriate actions toremedy it.

8 Water, like that affected by the defunct Sunnyside feedlot, that has essentially become a cocktail of nitrateor ammonia, e-coli, 17-beta estradiol and antibiotics only approved for use in livestock is by no meansbeneficial or innocuous. We wonder, as an important side note: given the alarming nitrate levels recordedin Marsing, have ISDA/DEQ initiated testing in this area for other chemical and biologicalcontaminants/pathogens known to be associated with dairy/beef CAFOs that may very well be giving riseto a similar brew of contaminants? (please note: this is not a rhetorical question.)9 While it is true that the Groundwater Quality Rules mandate primarily applies to DEQ, the authority totake enforcement action in the case of beef and dairy CAFOs falls to ISDA.


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CAFOs, and it is not the only contaminant ICARE is concerned aboutthere are multiplegroundwater contaminants linked to such operations, including but not limited toantibiotics, hormones, heavy metals, and pathogens; 2) ICARE is focused not only ongroundwater contamination linked to CAFOs, but on other problems associated withthem as wellair pollution, soil degradation, declining property values, public health

impacts, infrastructure strain, economic injustice, worker safety, declining biodiversity,anti-competitive trade policies, etc. It happened that our meeting was focused on one ofthese problem areas, but for the Deputy Director to artificially limit the scope ofICAREs concern to one contaminant in one problem areaand then to insinuate that weare out to eliminate all livestock operationsis unfair at best, and intellectually dishonestat worst.

We would also like to elaborate on our response to another of the Deputy Directorsquestions: are you saying that the number of animals is the only thing that has changedin the Magic Valley in the past twenty years? Once again, the short answer is no. Onceagain, however, the more appropriate answer is that (speaking purely in terms of

contributors to nitrate contamination) we believe the change in the number andconcentration of cattle is the most significant.

We dug up some numbers to back up this claim:

Table 1. Idaho State Cattle Inventory 1979-2008

Inventory 1979 1989 1999 2008

Milk cows 144,000 171,000 318,000 549,000

Cattle & calves 1,900,000 1,650,000 1,900,000 2,210,000

Total 2,044,000 1,821,000 2,218,000 2,759,000

As you can see, between 1979 and 2008, Idahos total cattle inventory (beef & milk

cows) increased by 715,000 head, or 35%.12 This may not look very drastic at firstglance, but it is the equivalent of adding 14.3 million people.13

During this same time period, the state lost 10,190 (or 47%) of its total cattle operations:

Table 2. Idaho State Cattle Operations 1979-2007

Operations 1979 1989 1999 2007

Dairy 4,600 2,600 1,200 810

Cattle & calf 17,000 16,000 12,000 10,600

Total 21,600 18,600 13,200 11,410

A closer look at the shift in the distribution of cattle in operations of different sizesprovides an even starker picture:

12 Unless otherwise noted, all livestock statistics were obtained from the National Agricultural StatisticsService (NASS).13 Contrarily, in 1980, the US Census Bureau placed Idahos population at 943,935; in 2008, that numberwas 1,523,816an increase of 579,881 (Source: US Census Bureau, Population Division). If theDepartment disagrees with this assessment, we would ask that it provide its rationale for arguing with thecommonly accepted statistic that cows produce between 20 and 22 times more excrement than people.


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Table 3. Idaho State Cattle & Calf Operations Average Herd Size 1979 vs. 2007

Cattle & calfherd size

1979 2007

Total # % Inventory Total # % Inventory

1 - 49 9588 7.9 7200 450 - 99 2907 10 1000 3

100 - 499 3893 39 1600 15

500 - 999 612 43.1 380 12

1000+ 420 66

Total 17000 100 10600 100

Table 4. Idaho State Dairy Operations Average Herd Size 1979 vs. 2007

Dairy herd size 1979 2007

Total # % Inventory Total # % Inventory

1 - 29 2930.2 12.2 230 0.2

30 - 49 699.2 19.4 50 0.350 - 99 648.6 29.2 100 1.3

100 - 199 322 39.2 90 2.3

200 - 499 110 6.4

500+ 230 89.5

Total 4600 100 810 100

In 1979, 96.4% of the states cattle & calf operations ran herds of 1-499 head, and housed56.9% of the states cattle & calf inventory. The remaining 612 operations (or, 3.6%)housed 43.1% of the states cattle & calf inventory in operations with 500+ head.14 Thatsame year, 4,278 (or, 93%) of the states milk cow operations housed 60.8% of the milk

cows in operations with fewer than 100 head.15

By 2007the most recent dataavailableOnly 420 of Idahos now 10,600 cattle operations had over 1000 head, butthese 420 operations housed 62% of the states cattle & calf inventory. Adding to this thenumber of operations with 500+ head makes the contrast that much more evident: in2007, 800 (or, a mere 7.5%) of the states cattle & calf operations housed 78% of itscattle & calf inventory in operations with 500+ head. In 2007, the state of Idaho had 810milk cow operations, 230 of which (28%) housed herds of 500+ head, as well as 89.5%of the states total milk cow inventory.16

In sum, the states beef and dairy industries have consolidated into fewer operations withever-increasing population densities: the CAFO model is taking over, putting traditional

livestock producers out of business, replacing family farm owner-operators with menial

14 A more detailed breakdown of this number was not readily available. We are working on getting one.15 We are working on getting a more detailed breakdown of the 100+ head facilities.16 In fact, the bulk of these pitiable creatures were housed in facilities with herds of 2500-3499 and 5500+headconcentrations unheard of 20 years ago.


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laborers, and burdening the states natural resources with extraordinary concentrations ofwhat is essentially toxic waste.17

Even assuming that (pound-for-pound) the excrement produced by Idahos humanpopulation is as likely to impact groundwater quality as its cattle population, and

assuming that the cattle population were distributed roughly in proportion to its humanpopulation (which we know is not the case, because the states CAFOs tend to be locatedin rural areas with low-density human populations), the odds that such contaminationwould be due to cattle rather than humans are still 36:1.18 As you will see below, theseodds become astronomically higher in what is now the typical scenarioareas with densecow populations, relatively diffuse human populations, and less land on which to spreadwaste.19

Further still, according to the Departments own documents, cow numbers in both theTreasure Valley and the Magic Valley already far exceeded the available agricultural landbase 10 years ago.20 We are not currently able to provide more up to date information

about the available agricultural land base (see: footnote 20), but we do not believe itwould be a stretch to hypothesize that the situation has not improved any and has likelygotten worse.

Looking at the Magic Valley in particular, we find that between the 1980 Census and thepresent, the human population has undergone a roughly 33% increasea total of 43,519people.21 By comparison, during this same time spanassuming that the Department ofAgricultures estimate that 70% of Idahos current dairy production takes place in theMagic Valley was true in 1980 as wellthe number of milking cows in the Magic Valleyincreased from 107,000 head in 1980 to 384,300: an increase of 277,300 head, or 259%.22

17For an excellent summation/overview of the data backing this statement, see: Burkholder J, Libra B,Weyer P, Heathcote S, Kolpin D, Thorne PS, Wichman M., Impacts of waste from concentrated animalfeeding operations on water quality, Environmental Health Perspectives115.2 (February, 2007): 308-12.CAFO manure is no ordinary manure; it is a biohazard.18 Though in 1979/1980 this ratio would have been 43:1, because the conditions under which cattle werekept have changed so dramatically, the comparison is misleading.19 Granted, humans generate other kinds of waste that cattle do not, and which impact the environment inother ways. Granted also, both human and cattle waste can be beneficial when handled properly. Here,however, we are primarily concerned with demonstrating the raw proportion of cattle waste to humanwaste, and the comparativepotentialof each to negatively impact ground water.20 Beddoes, J.C., and Mitchell, M.C. Idaho Dairy Nutrient Management. ASAE Annual InternationalMeeting. Toronto, Ontario, Canada. 19-21 July 1999. Pg. 2. We also request that the Department send us itsmost recent data on the ratio of livestock numbers to available agricultural land base in the Treasure Valley

and the Magic Valley, as we were unable to find this information online.21 Human population estimates for Magic Valley counties in 2008 were: Blaine, 21,731; Camas, 1,126;Cassia, 21,348; Gooding, 14,295; Jerome, 20,468; Lincoln, 4,503; Minidoka, 18,645; Twin Falls, 74,284.Total: 176,400. 1980 Population estimates for Magic Valley Counties were: Blaine, 9,841; Camas, 818;Cassia, 19,427; Gooding, 11,874; Jerome, 14,840; Lincoln, 3,436; Minidoka, 19,718; Twin Falls, 52,927.Total: 132,881 (Source: US Census Bureau, Population Division).22 The Idaho Beef Council estimates that as of January 2008, 1,336,000 of the 2.23 million cattle and calvesin the state of Idaho were located in three Magic Valley counties: Gooding County, at 261,000 head; CassiaCounty, at 227,500 head; and Jerome County, at 179,500 head (See:http://www.idbeef.org/idbc_beefindustry.htm). As the beef councils website does not provide historical


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If it turns out that the Magic Valley has only recently become the center of Idahos milkindustry, the percent increase (and, accordingly, impact) of its cattle population cansafely be assumed to be much larger than even this staggering statistic. A statistic that,importantly, does not include increases in the number of replacement heifers, dry cows orbeef cattle.

These numbers indicate that in 2008 the 1.33 million cows in 3 Magic Valley countiesproduced at least as much waste as 26,720,000 people. The human population of thosesame three counties was only 50,843. Even making the same broad assumption (asabove) that human and cattle waste have the same inherent potential to contribute togroundwater contamination, due to the sheer volume of waste they produce the odds ofthe source of groundwater contamination in the Magic Valley being a CAFO cow ratherthan an individual human would still be 151:1.

Based on these numbers, it is obvious that the potential impact of the increase in theMagic Valleys cattle population between 1980 and 2008 far exceeded that of its human

population. The same is true for the state as a whole.

We realize that not all of the cattle in the Magic Valley live in CAFOs. But the reality isthat most of them do.23 Recall that between 1979 and 2008, the number of dairies andlivestock operations in the state (and the Magic Valley) drastically decreased the statelost 6,400 calf & cattle operations, and 3,790 milk cow operations, 35% of its formertotalas did the amount of land available for waste application. The result: 35% morecattle housed in 47% fewer operations, with significantly less agriculturally availableland to handle the waste output.24

We understand that the Department will likely have a number of quibbles with thisbreakdown. We fully admit that this is a basic attempt to crunch the available numbers.We do not believe it is our responsibility to hire a professional statistician to prove to theDepartment that our numbers are exact. Rather, the purpose of this exercise has been todemonstrate the basis for our claim that CAFOs are major contributors to nitratecontamination in nitrate priority areas like the Magic Valley. We also feel that thesenumbers provide more than enough reason for the Department itself to further investigatethe claim, as the Department, being a state-funded agency, has more and better resources(including trained staff) than our under-funded nonprofit. We also hold that theDepartment has a responsibility to the public at large and local governments to do furtherstudy on this matter.

Groundwater Quality: Other

data, to get an idea of the increase, estimates for Magic Valley cow numbers in 1980 are based on state-level statistics provided by the National Agricultural Statistics Service (NASS). More detailed county-levelinformation requires a special request, which we have submitted, but which has not yet been received.23 See the above statistics regarding state-level trends in the size of cattle and milk-cow operations24 Should the Department desire more specific data here concerning the amount of acreage lost, it canconsult its own records. We, on the other hand, did not have the time to go through a potentially lengthypublic records request process prior to mailing this letter, and so have been forced, in some instances, totrade perfect accuracy for timeliness.


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At our meeting, the Department indicated that there were other possible sources of nitratecontamination that we were unfairly overlooking. These primarily included non-manurefertilizer, septic tanks, and natural sources. We, too, are concerned about these otherpotential sources. However, once again, by honing in on this point, the Department seems

to have missed the larger pictureto which we would like to return.

First, we intend to follow up with the Department of Health and Welfare (IDHW) on theseptic tank issue. Yet, given the Department of Agricultures evident concern about septictanks contributing to groundwater contamination, we wonder: has the Departmentattempted to collaborate, data-share, or otherwise problem-solve with IDHW and find outthe likelihood that septic tanks are contributing to nitrate contamination in mixed-useareas where CAFOs may also be contributing? And, if not, why not?25

Second, one of the Departments responsibilities is to work with farmers to ensure thatfertilizermanure or otherwiseis applied at agronomically correct rates (a basic Best

Management Practice).

26

The Departments obvious concern about fertilizer as a potentialcontributor to nitrate contamination similarly caused us to wonder: has the Departmenttaken the time to assess whether it has been effective in its efforts to ensureagronomically correct application? If not, why?

The ten-year-old paper we previously referred to in discussing the ratio of cows to theavailable agricultural land base also addresses this issue. Speaking of commercialfertilizer application in nitrate priority areas, the authors write:

In the future, all agricultural fields within these areas of nitrate concernmay need to implement irrigation scheduling programs or nutrientmanagement plans to reduce and eliminate the groundwatercontamination. (Beddoes and Mitchell, 7)

To repeat: it has been 10 years since this paper was presented. Has this recommendationbeen implemented? Have other recommendations proffered by the authors beenimplemented? If so, when? If not, why?

Third, and perhaps most importantly, where there is smoke there is fire: 1) nitrate is notthe only substance that can be used to point to the source of nitrate contamination; 2)nitrate contamination is not the only kind of contamination elevated nitrates may indicate;and 3) ammonia in CAFO groundwater may inhibit nitrate formation at the site, yetsignificantly contribute to nitrate formation in down gradient water. Other chemicals andsubstancessuch as hormones, antibiotics, pathogens, and heavy metalscan function

25 Please do not cite a lack of statutory authority, as state law provides plenty of discretion to the Directorsof the Department of Agriculture and the Department of Health & Welfare; it also expressly mentions theauthority to collaborate with other state agencies (Idaho Code 56-1003 and 22-103)26 Idaho Code 22-604 states: The department shall administer, enforce, and carry out the provisions of thischapter and may adopt rules necessary to carry out its purposes including, but not limited to, the proper use,handling, [] and disposal of fertilizers and their containers. In addition, see Idaho Code 22-103(3), 22-103(6), 22-103, 22-103(19), and 22-103 (20).


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as co-indicators of the source(s) of nitrate contamination; similarly, elevated nitrates maybe indicative of other forms of contamination, and should spur further testingparticularly as a failure to thoroughly investigate groundwater contamination wouldconstitute a failure to protect the public health. The water experts with whom theDepartment has been conferring may not be able to determine the source(s) of nitrate

contamination, but this is not to say that it cannot be doneand is perhaps an indicationthat the Department should be actively seeking out experts who can. It has been donesuccessfully in the U.S. and abroad, in places like Long Island, Southwest Ohio,California, Puerto Rico, and Korea.27 The Departments and DEQs very own Sunnysidemonitoring project data clearly illustrate this point, regardless of the Deputy Directorsavowed disagreement with the conclusions drawn in the January 2009 report.

Other

We found it curious that all state-level agencies with a role in CAFO regulationenforcement were present at the meeting, but that EPA was not. We would like to know

whether the Director invited EPA to the meeting, and if not, why not.

When asked to explain a recent decision to reduce an unauthorized discharge fine leviedagainst a Magic Valley dairy from $50,000 to $1,000, the Department offered severalexplanations: it must treat large facilities and small facilities equally, it only has theauthority to pull milk permits in the case of dairies, and holding most of the value of afine in reserve is an effective means of discouraging repeat violations.

There is a qualitative difference, written into the law, between large facilities, smallfacilities, and CAFOs (IC 67-6529). We are not asking the Department to treat largeand small livestock operations differently. We are asking the Department to recognizethe difference between such facilities and CAFOs and act accordingly. Not all livestockoperations are created equal; glossing over the inherent (legal as well as common sense)

27 See, for example: Bleifuss, P.S. et al. Tracing Sources of Nitrate in the Long Island Aquifer System.; Tomashot, Maria, et al. Extent and Sources of NitrateContamination of Drinking Water in an Agricultural Watershed in Southwest Ohio. National GroundwaterAssociation 2009 Groundwater Summit. Tucson, Arizona. 21 April 2009.; Jun, Seong-Chun et al.Identification of the Source of Nitrate Contamination in Ground Water below an Agricultural Site,Jeungpyeong, Korea. Journal of Environmental Quality 34 (2005): 804-815.; Choi, Woo-Jung et al. Evaluation of nitratecontamination sources of unconfined groundwater in the North Han River basin of Korea using nitrogenisotope ratios. Geosciences Journal 6.1 (March 2002): 47-55.

; Conde-Costas, Carlos and Gmez-Gmez,Fernando. Nitrate Contamination of the Upper Aquifer in the Manat-Vega Baja Area, Puerto Rico.American Water Resources Association, Third International Symposium on Tropical Hydrology. San Juan,Puerto Rico. 12-16 July 1998. ; andMoran, Jean. Lab Study Pinpoints Nitrate Sources in Tri-Valley Groundwater. Physical and LifeSciences Directorate June 21, 2007. . We are certain that, given more time and better access to relevant academic journalsand databases, we could find many more examples. However, we do not feel that it is our responsibility todo the Departments job for it. We are pointing out where there are obvious gaps in the Departmentsknowledge. Accordingly, it is the Departments duty to fill in those gaps.


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difference between CAFOs and non-CAFOs under the banner of equal treatment underthe law is a misuse of the concept as such.

As to the second and third points, in the Idaho Dairy Nutrient Management paper,Mitchell and Beddoes write:

A discharge from the facility is usually grounds for revocation of thepermit for one day. Therefore, the penalty is essentially one days receiptsfrom the sale of milk. This permit revocation may be reduced to a portionof a days production or increased to several days for repeat offenders orlengthy discharges. (Beddoes and Mitchell, 7)

Thus, are we correct in understanding that the $50,000 fine assessed to the dairy inquestion was an assessment based on the value of only one days worth of milk sales forthat dairy (as Mitchell and Beddoes explain)? Pardon our incredulity, but do you notthink that if this producer is making $50,000 per day, reducing his fine to 1/50th the value

of his daily sales (or 1/18,250

th

the value of his annual sales) sends a clear signal that theDepartment doesnt care all that much about pollution? At the meeting, the DeputyDirector did not think it did, arguing that holding the majority of the fine in probationfor a year provides a very strong incentive to comply with the law, and to take extraeffort. What is the basis for the Deputy Directors assertion? Are there studies or otherevidence to which the Department can point in order to justify this stance? Has theDepartment undertaken any kind of review process to determine whether its chosenenforcement methods have been at all effective in deterring discharge violations? If so,where might we gain access to that information? If not, why?

The Department has authority to determine Best Management Practices and normalagricultural practices. In part, this determination relies on research and publications byentities such as USDAs NRCS. In June 2007, NRCS Idaho updated its NutrientManagement Standard (NMS).28 Yet the Departments Rules Governing Dairy Waste,updated in May of this year, incorporates the outdated 1999 standard (Dairy Rules, 2). InJune 1999, NRCS updated Chapter 7, Geological and Ground Water Considerations, ofits Agricultural Waste Management Field Handbook.29 The Departments RulesGoverning Dairy Waste incorporates the 1997 edition (Dairy Rules, 2). In December of2004, NRCS updated its standard for waste storage facilities. The Department did notadopt these standards until May of this year (IDAPA 02.04.14, Section 30(1c)). This is anunacceptable state of affairs.

Apart from the outrageous five-year lag time between changes in national industrystandards and state regulations, the public has no way of knowing whether the state isholding producers to these standards, as certain vital datasuch as information central tothe calculation of storage pond seepage ratesare contained in nutrient managementplans exempt from public records requests. We would also like to know whether theDepartment is working with CAFO operators to bring outdated waste management

28 http://efotg.nrcs.usda.gov/references/public/ID/590.pdf29 http://policy.nrcs.usda.gov/viewerFS.aspx?hid=21430


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systems up to date.30 If so, we would like a detailed description of the Departmentsefforts. If not, we would like to know why.

The perfect example to illustrate the problem inherent in the Departments approach toBest Management Practices is the gap between Leah Juarros glowing review of

Matthews new (federally subsidized) holding ponds and the indisputable fact that thefeedlot continued to severely contaminate area ground water.31 This means that either a)Matthews was illegally discharging into the aquifer or b) the established standards (evenabove the standard) are simply not good enough to protect the states groundwater. TheDepartment maintains that there is no evidence that Matthews was discharging into theaquifer. Even assuming this is true, and that the Department did not neglect to thoroughlyinvestigate, that still leaves the Department failing to protect the states groundwater onaccount of poor standards. In spite of this, the Departments standards for soil lining ofearthen lagoons have not changed.

As the aftermath of Sunnyside Feedlot demonstrates, the Department has failed and

continues to fail in its duty to protect the public health and welfare, and to act as asteward of Idahos finite natural resources.32 The enduring effects of Sunnyside feedlotshow that the Departments outdated and toothless Best Management Practices forCAFO operators are nothing more than a recipe for creating Brownfields sites where thecontamination is worth more than the land.33 Meanwhile, the Department has leftneighbors of such operations to fend for themselves: it has taken no steps to collaboratewith DEQ in ground water clean up; it has shown no interest in communicating withIDHW, local health districts or county governments to monitor the impact of CAFOs ontheir neighbors; and it has ignored numerous attempts by citizens to submit evidenceindicating that CAFOs are a very real public health problem. This state will do anythingand everything to avoid federal interference, except when it comes to subsidizingand/or bailing out pollutersIdaho, it seems, is more than happy to let federal taxpayerspick up the check for cleaning up after the states beef and dairy CAFOs. This attitudenot only encourages and enables irresponsible behavior on behalf of CAFO operators, itfacilitates irresponsible, callous, and calculating maneuvers on behalf of stategovernment. If Idaho officials can predictably rely on federal money to clean up agency-enabled messes, there is little incentive to prevent such messes in the first place. Dealing

30According to the Beef Cattle MOU, Beef Cattle AFOs [] are responsible to construct, maintain, andoperate their facilities to prevent contamination of waters of the state (Beef, 2). Similarly, the purpose ofthe Dairy MOU is, in part, to prevent water pollution and to protect Idahos surface and groundwater

from dairy waste contamination (Dairy, 1). If the Department is not working with or requiring producersto update their waste management methods, then it is allowing producers to continue operating in violationof the Ground Water Quality Rule.31 Juarros, Leah. Sunnyside Feedlot Construction Final Review. October 31, 2003. In this review, Ms.Juarros praises the new holding ponds as exceeding the soil liner recommendations for water quality.32 Interestingly, by coddling CAFOs the Department has also failed in its duty to promote the livestock anddairy industries: the state continues to lose non-CAFO producers at staggering rates.33 Ed Hagan, October 16, 2009. Seeing as how the Department has not meaningfully updated its BestManagement Practices or attitude toward enforcement since the Sunnyside fiasco, it has no reasonable basisto believe that future CAFO closures will have different results.


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with federal regulatory loopholes in this manner is an abuse of federal money and UStaxpayers trust.

Problem Solving

At the meeting, the Department asked for our suggestions as to what actions it shouldtake to address the problems we identified. We hope that we have been clear enough incomposing this letter for our updated suggestions to be self-evident. However, just incase, we have made them explicit with the list that follows. These suggestions (in noparticular order) are based on the legal and scientific fact-finding we conducted in thecourse of preparing this letter. As such, if the Department has qualms with thesesuggestions, we would ask that it provide legal and/or scientific reasons for its hesitation.You will notice in these suggestions a heavy emphasis on making information availableto the public in an easily accessible electronic format. The reason for this emphasis issimple: we are certain that the Departments response to our letter will itself emphasizethe central role of local control; we support local control; however, it is problematic for

the Department to play the part of local control booster and then keep from public viewand/or charge the public to access the very information necessary to making empiricallysound, evidence-based land-use planning decisions.

Update waste management rules for CAFOs. Base these updated rules onecologically sound principles.34 This certainly ought to have been done after, ifnot during, the Sunnyside fiasco. It was not.

Update Best Management Practices to reflect up to date industry standards asestablished by the most recent edition of publications such as the NRCS WasteManagement Field Handbook and NMS.

Introduce more stringent requirements/training for nutrient management planner

certification. Bring operators with outdated waste management systems up to date.

Strictly enforce existing regulations, particularly in nitrate priority areasthismeans not letting polluters off the hook for even seemingly minor offenses.Such offenses, in already compromised areas, have the potential to cause majorharm.

Work with farmers to ensure agronomically correct application of commercialfertilizers.

Provide and publicize (online) local-level cow counts and inventory percent datafor nitrate priority areas.35

34 An example of guidelines based on ecologically sound principles might include rules that account forCAFO lagoon/storage pond waste componentsincluding heavy metals, ammonia, nitrogen, hormones,antibiotics and pathogensfor different species, and the effects of those components on human, soil andcrop health as well as their potential impact on surface water ecosystems and ground water quality. If theDepartment does not believe it has the funds to start from scratch and conduct a study of its own, it couldrely on similar studies done in other states.35 Though the Department has access to estimates of these numbers through NASS, we believe that itshould base its policies on the most accurate and up to date data possible.


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Assign every siting team report in nitrate priority areas with pre-existing highdensity cattle populations and a corresponding dearth of available agriculturalland a realistic, high-risk rating.

Send a letter of apology to Sunnyside-area residents for failing to enforce the lawin a manner that adhered to the Ground Water Quality Rule, and for failing to

explore discretionary authorities that may have alleviated if not solved theproblem in a timely fashion.

Engage in cleanup at the site of the former Sunnyside Feedlot (as we stated, themanure is still present, and ISDA does have authority to act in this regard).

Revise lagoon/holding pond engineering and soil lining standards.

Establish a cleanup fund utilizing fines levied in enforcement actions.

Communicate with the Attorney Generals Office about repeat violators.

Initiate and carry out comprehensive groundwater monitoring at beef feedlot anddairy CAFOs for the following substances: heavy metals, e-coli, total coliform,ammonia, nitrite, nitrate, hormones (synthetic and natural), and antibiotics. Studyareas around CAFOs (or even a few of them) to monitor the distribution of these

substances would be preferable. Lab results as well as summaries should be madepublicly available (preferably online).

Revise departmental policies/emphases to allow the Department to act in theinterests of the livestock and dairy industries as a whole, rather than the powerfulfew top producers within each industry. A focus on sustainability and robust localand regional markets are an excellent way to do this.

Make available to the public information within nutrient management planspertinent to calculating storage pond seepage rates. We would prefer that theDepartment restore nutrient management plans in their entirety to the publicrealm, but suspect that the Department will direct us to the Legislature for such arequest.

Engage EPA, IDHW, and local health districts in assigning risk assessments to allproposed CAFO sites (not just those in nitrate priority areas).

Implement at least a temporary state level ban on the use of hormones and sub-therapeutic doses of antibiotics in livestock until appropriate investigation intotheir effects on human, soil, and crop health as well as potential to contaminatesurface water ecosystems and long-term impact on ground water is completed.

Increase and expand collaboration with state agencies to eradicate agriculturescontributions to nitrate contamination.

Publicize meeting and training schedules for all agency and department heads,and post on the website. This would give citizens the ability to sit in on allmeetings between ISDA officials, industry, and interested members of the public.

Construct a web page to add to ISDAs website that deals specifically with CAFOissues: include links to applicable statutes and rules and provide pertinent contactinformation.

Compose a document detailing the workings of CAFO regulation in the state;distribute to all county Planning and Zoning Offices and Boards of CountyCommissioners and post on ISDAs website (preferably on the newly constructedCAFO page). The document should explicitly list ISDAs powers/authorities andlimits with regard to CAFO enforcement action. If ISDA is unwilling to use its


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discretionary authority to explore alternative enforcement actions, this too shouldbe spelled out in the document.36

Post all CAFO-related enforcement actions on ISDAs website.

Post CAFO siting team schedules on the website.

Institute discussions with neighbors into CAFO siting team reports to ensure that

relevant site-specific problems they may be aware of are incorporated into thereport (i.e. soils with fractured basalt, abandoned wells, sinkholes, flood plain andirrigation water concerns, neighbors with compromised immune systems, etc.).

Require CAFO inspectors to personally speak with those persons who made theformal complaint that prompted the inspection, unless the complaint was madeanonymously. Written copies of subsequent inspection reports should be mailed(free of charge) to the complainant(s).

Make publicly available (preferably on ISDAs website) an inventory of availableirrigable land in each county. Develop an interactive map utilizing Google mapsor similar technology to make this information user-friendly (i.e. a person on theborder of two counties could input his/her address and limit his/her search to a 5

mile radius of that address) and post it on ISDAs website. Make any and all third-party application agreements publicly available

(preferably online) so as to avoid duplication and enable citizen involvement.

Digitize CAFO records (redacting information deemed confidential) and makethem publicly available online.

Institute a CAFO-specific complaint hotline and ensure that an inspector will beout to investigate such complaints within 4-8 hours of a call.

As more suggestions may occur to us in the coming days, you may expect to hear fromus. We believe, however, that these suggestions establish a solid starting point.

Finally, please do not respond to this letter in legalese. We have put a significant amountof time and effort into composing this letter. It is in plain enough language; you do nothave to be a lawyer to understand its contents. We would rather not have to invest in alawyer simply in order to decipher your response to it. You may assume that yourresponse will be made quite public. Obvious attempts to bamboozle and/or obfuscaterather than sincerely communicate will be evident to any who encounter it.

Please send both electronic and hard copies of your response.

36 At our meeting, the Department indicated that it is more than willing to meet with local governments todiscuss this very issue. However, we feel that it would be in the best interest of all parties concerned if theDepartment were to spell these details out in a single official document. This would avoid the confusionand miscommunication that can arise from different ISDA representatives speaking to different countydecision-makers and/or citizens. It would also clear up and prevent a great deal of the confusion and strifethat arises at county-level public hearings on CAFOs.


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Documents

ICARE ISDA Correspondence Re 10-16 Meeting