June 25, 2009
James Bellatty
Water Quality Program, CRO
Department of Ecology
4601 N. Monroe
Spokane, WA 99205
Re: Easterday Ranches feedlot – water quality protection
Dear Mr. Bellatty,
This letter is submitted on behalf of Center for Environmental Law & Policy and Five Corners Family Farmers. We are concerned about Ecology’s failure to require a water quality permit for a new 30,000-head feedlot proposed by Easterday Ranches, Inc. for construction near Eltopia, Washington.
According to your records, produced pursuant to public record requests submitted by CELP, the Department of Ecology intends to not regulate ground or surface water quality at the Easterday feedlot site. U.S. EPA’s new CAFO rule allows Easterday to make a self- determination regarding discharge, and Easterday has announced that he does not “propose to discharge to state waters.” Based on this self-assessment, Ecology appears to take the position that the agency is powerless to require Easterday to apply for a permit, or even
submit information to allow the agency to determine whether a permit is necessary.
We write to ask that Ecology reconsider its decision to not regulate water quality at the Easterday Ranches feedlot. As discussed below, stormwater and snowmelt from the feedlot property drains to waters of the state of Washington and is likely to carry contaminants. We are also concerned that Ecology’s air quality permit will require Easterday to control air emissions using chemicals via aerial spray that could wind up in state waters. The state is not bound by the CAFO self-assessment rule adopted by the U.S. EPA and is empowered to impose stricter requirements on the feedlot, including an individual water quality permit, than federal law requires. Finally, given that Easterday has not produced plans to show that groundwater will not be impacted, a groundwater waste discharge permit should also be required.
In determining water quality regulatory questions, Ecology must consider the sheer size of the feedlot. The Easterday facility will house 30,000 head of cattle for finishing, making it one of the largest feedlots in the state. According to the USDA’s Agricultural Waste Management Field Handbook, the feedlot will produce between 50-60 pounds per day of manure/waste per 1,000-pound animal. Using these figures, the Easterday feedlot will produce at least 15,000 pounds of manure per day, 365 days per year. We have yet to see any document that explains how this waste will be handled to prevent contamination of state waters, ground or surface. Ecology should require information of and regulate the Easterday feedlot for the following
reasons:
1. Waters of the state are potentially affected.
The Easterday feedlot poses the potential to discharge to waters of the state. The feedlot parcel has seven topological draws that drain to Smith Canyon, which eventually drains to either the lower Snake River or the Columbia River, and potentially impacts the Juniper Dunes Wilderness Area. Smith Canyon, while dry most of the year, floods during winter months due to snowmelt. Snowpack in the area can be substantial. Please see the attached photographs, which depict winter 2008 flooding along Smith Canyon, and 1997 snowfall at a farm 2.5 miles from the Easterday parcel.
Runoff from the Easterday parcel will occur exactly as described in August 2008 SEPA comments submitted by Ecology’s CAFO program to Franklin County regarding the Easterday proposal:
Section 3.a.6 of the SEPA Checklist indicates that there will be no discharges to surface water. The site is located at the head of a number of usually dry drainages. These drainages may be expected to have surface runoff during high flow events such as winter rain on frozen ground or snow melt. Little information is provided on how the site will be managed to ensure that no discharges to waters of the State occur. Information on manure management, lagoon design and liner construction, and stormwater management would help to determine if discharges are likely. Without proper construction and management, the facility will have discharges.
The Farm Services Agency has identified protection of the Snake River as a goal for the Conservation Reserve Program in the area of the Easterday parcel. Scott Collin’s farm, adjacent to the Easterday parcel, also contains a draw that drains to Smith Canyon. The draw acreage is enrolled in the CRP program, and Mr. Collin has installed filter strips specifically to prevent erosion that would ultimately make its way to state waters. Despite being an arid area, it is physically possible and quite plausible that manure and other waste and pollutants generated at the Easterday feedlot will ultimately discharge into the waters of Washington state.
2. State water quality laws should require Easterday to apply for an individual discharge permit.
Washington State may impose more stringent protections for water quality than federal law requires. Given the size of the proposed feedlot, its topology and proximity to Smith Canyon, and the lack of design plans indicating how water quality will be controlled to achieve zero discharge, this is an ideal situation for Ecology to step forward to ensure protection of state water resources. While Ecology’s CAFO general permit has apparently adopted the federal interpretation of “duty to apply” (i.e., that there is no such duty), Ecology may require Easterday Ranches to apply for an individual water quality discharge permit. At a minimum, Ecology should require Easterday Ranches to demonstrate that the feedlot design plan is adequate to achieve zero discharge.
This situation is analogous to the “isolated wetlands” problem created by the SWANNC and Rapanos decisions of the U.S. Supreme Court. Post-SWANNC, the Corps of Engineers retains authority to make jurisdictional determinations whether federal law applies to wetland activities and, when not, Ecology steps in to regulate pursuant to state law. Here, because federal law does not allow U.S. EPA to determine the applicability of the Clean Water Act in advance of a discharge, it is even more critical that Ecology assert that authority under state water quality laws. Absent affirmative action by Ecology, a void is created by which CAFO facilities may pollute state waters without oversight or regulation.
3. Easterday Ranches has not shown that the feedlot facility will be “designed, constructed, operated and maintained” so as to prevent a discharge to the waters of the state.
U.S. EPA’s comments in support of the new federal CAFO rule emphasize, repeatedly, that the details surrounding feedlot design and operation are critical for a CAFO operator to be able to determine that no discharge will occur. 73 Fed.Reg. at 70423-34. At a minimum, Ecology should require Easterday Ranches to produce a plan that demonstrates that zero discharge is possible, and based on that information, make a determination whether exemption from state water quality laws is lawful and prudent.
4. Ecology should require a groundwater waste discharge permit.
As with surface waters, discharge of pollutants to state groundwater without a permit is illegal. There is no federal counterpart to this law. In a recent review of Ecology’s CAFO general permit, the Court of Appeals ruled that protection of groundwater resources from feedlot pollution is achieved through the requirements of the CAFO general permit. CARE v. Ecology, 205 P.3d 950 (2009). That permit requires CAFOs to prepare and submit a “nutrient management plan” that Ecology must review and approve, as well as monitor soil quality and manure lagoon levels. However, Ecology has determined that the CAFO general permit does not apply to the Easterday feedlot, even though rudimentary plans indicate that lagoons will be utilized. It is therefore imperative that Ecology require Easterday Ranches to apply for a waste discharge permit in order to protect groundwater resources. The urgency of this need is compounded by the fact that Columbia basin aquifers in the Franklin County area are already contaminated with nitrates.
5. Air quality versus water quality.
Ecology’s air quality program has determined that Easterday Ranches must spray substantial quantities of water on the feedlot to control fugitive dust. Air quality controls may include addition of chemicals to the misting water in order to reduce toxic emissions. We have no complaint with control of air toxics, but we are concerned about a possible disconnect between Ecology’s air and water quality programs. An air quality permit that requires the application of chemical-laden water (including added nutrients) would obviously implicate water quality. Yet there appears to have been no cross-agency discussion of potential cross-media impacts. It is incumbent upon Ecology, as regulatory agency, to investigate the extent to which its own activities may create the need for additional regulation.
For the foregoing reasons, we request Ecology to require Easterday Ranches to apply for water quality discharge permits to protect valuable and vulnerable ground and surface waters of the state of Washington.
We look forward to your response.
Yours very truly,
Rachael Paschal Osborn
cc: Jay Manning
Kelly Susewind
Attachments: Photos of Smith Canyon flooding & Eltopia-area snowfall
