Testing the Waters: Why every U.S. dairy should care about a court case affecting five families in Washington If you think things are tough now, just imagine what would happen if cow manure was regulated as solid waste. Dairy farms would have to operate much like sanitary landfills. It could happen.

Five dairy farms in Yakima County, Washington, are facing environmental lawsuits right now that threaten to put them in exactly that position.

Industry leaders in the Northwest are standing by the dairies. They say the targeted producers aren’t the bad actors they’ve been made out to be.

If the environmental activists win, livestock producers can expect a flood of similar lawsuits, industry officials warn. The implications would ripple across the country and affect all types of livestock operations.

Yours could be next.

History of the manure management issue

Groundwater quality has been a concern for decades in the Lower Yakima Valley.

Several studies conducted over the past 30 years have shown nitrate levels in area drinking water to be above 10 milligrams per liter, according to the EPA.

Nitrate concentrations above 10 milligrams per liter may cause health problems, the agency has determined. Excess exposure can result in methemoglobinemia (blue-baby syndrome) in infants and susceptible individuals.

The issue gained more public attention when the local newspaper, the Yakima Herald-Republic, ran a three-part series in October 2008.

Some low-income rural residents were spending as much as $200 a month for bottled water to avoid drinking from contaminated private wells, the newspaper reported.

The articles pointed toward dairy as the most likely culprit and chastised government agencies for inaction and regulatory confusion.

The EPA took notice. The agency began groundwater testing in the area in early 2010 and released a 300-page report in September 2012.

Like previous studies, the report found that many shallow wells in the area were contaminated with nitrates, but it went further by attempting to identify the sources of contamination.

Dairy operations were the main problem, the agency concluded, outranking irrigated agriculture and residential septic systems as nitrate polluters.

Agriculture groups pointed out some serious flaws in the study, but the fallout had begun.

In February 2013, the Community Association for Restoration of the Environment (CARE) and the Center for Food Safety (CFS) filed lawsuits against five dairies in the Lower Yakima Valley.

The environmental groups allege that the dairies have overapplied manure and allowed liquid manure to leak from lagoons, polluting the aquifer.

They say this constitutes “open dumping” of solid waste, a violation of the Resource Conservation and Recovery Act (RCRA).

The dairymen and their representatives say they’ve been in compliance with all applicable state and federal environmental laws.

“These are excellent farmers,” says Jay Gordon, executive director of the Washington State Dairy Federation.

But playing by the rules hasn’t shielded them from legal action.

The lawsuits could drag on for years and go all the way to the U.S. Supreme Court, some attorneys predict.

It’s no coincidence that environmental activists chose the Yakima Valley for this test case, says Debora Kristensen, a Boise, Idaho-based attorney representing the dairymen. Groundwater quality has been an issue here for 50 to 70 years, “long before these dairymen were in place,” she says. “If there’s been a historic problem, how is it that they either caused it or contributed to it in the greater scheme?”

If the plaintiffs win, it will be the first time that RCRA has been used successfully in federal court as the basis for a citizen lawsuit against livestock producers.

“That’s why everyone is watching and is so concerned. If plaintiffs win, any agricultural operation that uses, handles or stores manure is potentially subject to liability under RCRA,” Kristensen says. “No court has ever held that before.”

The targeted dairies are large, even by Western standards. Together, the four dairies (one sold out and exited the business) milk more than 20,000 cows.

But this case isn’t about size, industry officials insist. It’s about environmental activism, government regulation and the potential impacts both can have on all livestock operations.

The dairies were all started in the early 1970s, about the time the Nixon administration was establishing a new federal agency – the EPA.

The men who started them are still involved but have turned most of the day-to-day operations over to their sons or grandsons.

These dairymen, now in their 30s or 40s, are understandably concerned about their future. But they also remain hopeful that they’ll be able to pass the farms down to the next generation.

The lawsuits will likely come down to a battle of experts – technical folks including hydrologists, geologists and engineers.

For the affected dairymen, however, the issue is not just about gradient direction, groundwater flow and nutrient application rates.

It’s about their livelihood. It’s personal.

Adam Dolsen, Cow Palace

Adam Dolsen points out the location of triticale fields as he drives the back roads surrounding the Cow Palace, the family dairy farm near Granger, Washington.

It’s mid-November, and the new crop is only a few inches tall. The three-year crop rotation also includes corn silage and sudangrass.

Like most dairies, the Cow Palace applies stored lagoon water to some of its fields through pivot irrigation systems.

They’ve also installed electronic sensors at the bottom of the root zone in each application field. The sensors include an automatic shut-off feature to minimize the movement of water below the root zone.

Dairies in the area have lots of competition for high-value farmland. Fruit orchards, hop fields and vineyards dot the landscape surrounding the dairies. Wineries beckon tourists to come in and have a taste.

Yakima County produces more than $1 billion in agricultural products annually. It’s hard to find farm ground here for less than $9,000 an acre, dairymen say.

Along one side of the Cow Palace, not far from the large open lots, there’s a huge composting operation.

The Cow Palace converts much of its manure into certified USDA organic compost. They produce 35,000 to 40,000 tons of it per year and employ a full-time compost salesman.

“It’s sold out months before we’ve finished turning it,” Dolsen says.

The compost is used not only on the Cow Palace fields but on a variety of crops all over the Northwest. Even some of the surrounding orchards and vineyards use it, but don’t look for that in the tourist brochures.

Dolsen, 32, is married and has three small children.

He worked on the dairy growing up, then left to pursue an agri-business degree at Montana State. He switched his major to environmental studies two years before graduation. The decision didn’t sit well with his grandfather, who was paying his tuition.

“He was furious and quit paying for my college at that point,” Dolsen says with a grin.

As it turned out, environmental studies provided a good background for someone going into agricultural business.

“I saw these headaches coming when I was in school,” he says.

Dolsen earned his bachelor’s in environmental studies and is nearing completion of a master’s degree in organizational leadership from Gonzaga University. He plans to return to work on the dairy when finished.

CARE, the local environmental group that initiated the lawsuits, has tried to portray the dairies as one big conglomerate out to maximize profits at the expense of public health and the environment. But it’s a distortion of reality, Dolsen says.

“Together, we’re an industry, but we’re all family farms. We’re all second-generation or third-generation family farms around here,” he says.

“We contribute to the valley. We contribute to our communities,” he says. “The picture that they’ve painted is not accurate.”

Most people in the Yakima Valley are supportive of agriculture and the dairy industry, dairymen say. The local environmental activists are the exception.

They’ve shown no interest in negotiating with dairymen, listening to their concerns or learning why they do things the way they do, Dolsen says.

“You go to public meetings and try to address them, and they yell and scream,” he says. “They’ll tell you that you’re killing their kids. It’s awful, the things they say and call you.

“It’s pretty disheartening,” Dolsen says. “It’s hard to sit in those meetings and hear the things that they say and then watch as they get the support of our local media and the federal government.”

The activists’ main allegation is that the dairies’ nutrient management practices constitute illegal open dumping and should be declared an imminent danger to public health and the environment.

They’ve asked the judge to impose severe restrictions on the dairies, including court orders to:

• “Cease and desist” from storing manure on any portion of their land that has not first been lined with synthetic liners
• “Capture, adequately treat and sequester as necessary,” all surface water or groundwater within the property, except surface water that flows as the direct result of snowmelt or other precipitation events
• Fund “an independent, comprehensive, scientific study to determine the precise nature and extent of the endangerment and harm caused by open dumping”

The activists’ ultimate goal should be obvious, dairymen say.

Dan DeRuyter, George DeRuyter & Son Dairy

“They want you out of business, and that’s the only outcome that’s going to satisfy them,” says Dan DeRuyter, 45, of George DeRuyter & Son Dairy, another operation named in the lawsuits.

While clearly frustrated by the litigation, the dairymen acknowledge that there’s a nitrate problem in area groundwater. They also know that clean drinking water is a basic necessity and its importance should not be minimized.

“We have a nitrate issue in the Yakima Valley; there is no question about that,” DeRuyter says.

“I believe as a community, we need to figure this problem out,” he says. “Instead of going on a witch hunt, we need to go out there and solve the problem.”

There’s still a lot of unproven science behind the nitrate issue, and environmental activists use the gray areas to their advantage, the dairymen contend.

“They’re trying to fill in the gaps with a lot of their own science,” Dolsen says.

•••

In one corner of the DeRuyter dairy property is one of its latest additions: an anaerobic digester.

The digester, which started operation in 2006, converts manure into methane gas. The gas is piped into an adjacent building where it fuels two huge engines.

“We have two 900-horsepower engines that are cranking out electricity all day long,” DeRuyter says.

Each engine runs at about 500 kilowatts for a combined one megawatt of power generation. It’s enough electricity to power about 600 to 800 homes.

Byproducts of the digester include peat moss replacement and a phosphorus product. Someday it may produce much more. The long-term goal is for the digester to make compressed natural gas for transportation fuels.

There’s also interest in developing a nutrient recycling project at the digester site. Recycled products such as struvite (a crystallized material composed of phosphorus and other elements) have the potential to be marketed as commercial-grade fertilizers.

It’s new technology like that which excites DeRuyter and keeps him optimistic about the future of the dairy business.

“I still have an optimistic outlook. I do believe we’re going to get past this situation,” he says.

“I also believe that technology down the line is going to make a big difference for the dairy industry. We’re going to continue to make improvements in our animal husbandry, environmentally and in our business,” DeRuyter says.

Researchers at Washington State University have already seen good results using struvite extracted from wastewater treatment plants to grow greenhouse crops such as basil, cucumbers and tomatoes.

WSU researchers used the DeRuyter dairy to test different methods of extracting struvite from anaerobically digested dairy effluent.

The technology holds promise, but it will take more research before a commercial-scale struvite extractor can be installed on a PNW dairy farm.

It’s the kind of research the dairy industry would like to support, but that’s a difficult proposition when producers are shelling out millions in attorney fees, says Gordon, the director of the state dairy federation.

The money the dairymen have already coughed up would have been much better spent on the WSU struvite research, Gordon believes.

“We could have turbo-charged that research,” he says.

These dairies have already demonstrated their commitment to progressive solutions, Gordon says. By continuing to participate in nutrient recovery research, they could help solve a looming phosphorus shortage.

Right now, the U.S. has one mine in Florida that supplies 60 to 65 percent of the phosphorus to American agriculture.

“That mine has 20 years left, and then we’re done,” Gordon says.

“Twenty to 40 years from now, most of the world is going to have to go to the king of Morocco to get phosphorus,” he says. “That’s not good.”

Yakima dairymen say they don’t object to spending money to try to solve environmental problems, but they want to make sure it goes toward something that’s science-based.

“If we’re going to spend money, we want to make sure it’s going to make a difference,” DeRuyter says.

The DeRuyters have about 7,000 acres of cropland in the area, allowing them to produce 85 to 90 percent of their own feed. Crops include corn (mostly silage), alfalfa and some grain corn.

DeRuyter and his neighboring dairymen regard manure and compost as a valuable resource. Why would they waste it and risk harming their crops?

If they were overapplying manure as alleged in the lawsuit, their fields would be burned up, they contend.

In fact, their crops are doing just fine. The DeRuyters average about 31 tons per acre on their corn silage.

“Our soil-sampling methods are so much better now,” DeRuyter says. “Our application is so much better. All of that is working in concert to where we are getting tonnages off these fields that we haven’t seen before.”

Growing a good crop of corn requires phosphorus, potassium and nitrogen – the three primary nutrients found in cow manure, DeRuyter says.

“There are two ways to get all those things. You can get it in organic form (manure) or synthetic form (commercial fertilizer). We’re putting it on in an organic form, and what (CARE) is saying is that this organic form of farming is not good,” he says.

A growing number of farmers in the Yakima Valley are discovering the benefits of using manure as fertilizer, DeRuyter says.

Moderation is the key.

“When you apply manure at agronomic rates, it’s irreplaceable. It’s good. I think people need to understand that,” he says.

Henry Bosma Jr., Liberty Dairy

Henry Bosma Jr. will never forget the day in late September 2012 when he and a few neighboring dairymen were summoned to Seattle by the EPA.

The agency had just released a report based on its groundwater testing conducted in the Lower Yakima Valley. The study pointed to the dairies as the main source of nitrate contamination in drinking water wells. Agency officials wanted to discuss the findings and propose remedial action.

It was Sept. 27 – Bosma’s 39th birthday. He left his party hat at home.

In Seattle, the dairymen were presented with a proposed administrative order. It was a “dairy killer,” Bosma says.

The agreement would have required the dairies to line their lagoons with synthetic material – a standard “that only the uranium mining industry is required to meet,” he says.

Over the next six months, the dairymen and their lawyers negotiated an amended agreement.

“We negotiated out some of the more outrageous things like lining the cow pens,” Bosma says.

The amended order still carried many stringent requirements, including regular groundwater monitoring and offering to provide reverse osmosis systems or other drinking water alternatives to neighbors living within a mile whose tapwater exceeds the federal maximum levels for nitrates.

Officially a “voluntary” consent decree, the dairymen had little choice but to sign the agreement. It was either that or get slapped with a government lawsuit.

“They had us backed into a corner,” Bosma says.

A year after the lawsuits were filed: The outlook

The four operations that signed the EPA order have already spent nearly $2 million on it, including legal fees, consultant services, paperwork, etc.

Lining the cow pens and putting in synthetic lagoon liners would have cost millions more.

One family refused to sign, opting instead to sell their herd and exit the business.

In its 2012 report, the EPA estimated that lagoons in the “cluster” of four dairy operations leak between 3.3 million and 39.6 million gallons of liquid waste per year into the underlying soils.

That and other findings in the report prompted a flood of public comments.

Environmental activists said the report confirmed what they had been saying all along – that the dairies were polluting area groundwater. Agricultural groups blasted it and pointed to flaws in its methodology and conclusions.

Jay Lazarus, president and senior geohydrologist at Glorieta Geoscience Inc., identified a host of deficiencies in the report. His conclusion: It failed to identify specific sources directly linked to excess nitrate in domestic wells and therefore did not provide enforcement-quality data.

“EPA did not achieve (its) objectives because the aquifer properties such as groundwater flow direction were not evaluated, not all potential sources at each study site were evaluated and mapped, and trace organic compound analyses did not yield reliable data or were inconclusive,” he said in written comments submitted to the agency.

Yakima County Farm Bureau President Steven George told the agency that its study was “so unprofessionally done that it should be withdrawn.”

The affected dairymen say one of the biggest flaws was limited testing data.

“Did (the tests) come up high in nitrates? Yes. But did (EPA) check places that weren’t near dairies? No. So how do you come up with the conclusion that nitrates are caused by the dairies when you aren’t looking anywhere else?” DeRuyter says.

The four dairies that signed the agreement have had to drill monitoring wells, and they’ve changed their soil and water testing methodology a little to make sure it conforms with EPA requirements.

But the biggest direct impact on the dairies has probably been increased costs, they say.

“We’ve spent a lot more money,” DeRuyter says. “It’s costing a lot of money just to do the paperwork.

“Operationally, we were already doing a lot of this stuff,” he says. “We already took soil samples. We already monitored the amount of water that went out of the ground. We were already doing stuff to ensure water quality.”

One of the most troubling aspects for the families is the way they’ve been portrayed by environmental activists.

DeRuyter’s five children have all grown up in the valley.

“My kids work on our dairy,” he says. “They all drink the water that comes out of these wells.

“My family has lived in this area forever,” DeRuyter says. “We care immensely about what goes on in this valley.”

The targeted dairies all had humble beginnings.

Bosma’s father, Hank Sr., started the original place with 20 cows in 1973, on a site just down the road from the existing Liberty Dairy.

They’ve worked hard to expand the business, but now they have reason to doubt about its future. It would be nice to pass it along to the next generation. Bosma has three children, ages 6, 10 and 12.

“The youngest wants to preg check cows and be my boss. He has high aspirations,” Bosma says with a smile.

Before the EPA action, Bosma was upbeat. “When you have a job you love, you never work a day in your life,” he would tell people.

But his attitude has changed over the past year and a half. “It’s been a job and it’s not been fun,” he says.

Nothing, not even switching to a pasture-based system, would satisfy the environmental activists, Bosma says.

“They’re chomping at the bit to destroy the dairy industry in this valley along with thousands of jobs, good-paying jobs,” he says.

Bosma’s overall outlook on the dairy industry remains positive.

“Nationwide, I’m very positive about the dairy industry,” he says. “Here in the Yakima Valley, I’m not very positive about it.”

And what about the future of his own farm?

“Only time will tell,” Bosma says. PD

Dave Wilkins is a freelance writer based in Twin Falls, Idaho.

PHOTOS
TOP: Adam Dolsen of Cow Palace Dairy graduated with a degree in environmental studies. He’s now using it to stand up for his dairy against allegations of polluted groundwater.

MIDDLE: Dan DeRuyter of George DeRuyter & Son Dairy stands near his dairy’s digester, which began operating in 2006. The digester is one of the dairy’s manure processing methods.

BOTTOM: Henry Bosma Jr. of Liberty Dairy near Granger, Washington, is one of five dairy owners named in a lawsuit over groundwater quality in the Yakima Valley. Photos courtesy of Dave Wilkins.