The proposed CAFO permit has two options: A combined federal/state permit (if there are surface water discharges) and a state-only groundwater permit. Dairies with fewer than 200 mature cows would be exempt. All dairies with lagoons are presumed to be dischargers and would need one of the permits.

Requirements for either permit would include:

1. Fall and spring soil tests
2. Daily/weekly inspection of systems (including in-ground portions)
3. Manure pollution prevention plan
4. Provide an engineering assessment on lagoons (within two years of permit issuance)
5. 100-foot buffer (from waters/wetlands) of no spreading of nutrients or use of a 35-foot vegetated buffer
6. Manure testing
7. Public disclosure of reports
8. Limits on nutrient application
9. Other requirements

While the state or combined permits would provide some degree of protection in the face of lawsuits, the preliminary estimate of compliance are extremely high:

• Estimated costs to a 300-acre western Washington farm, with 10 percent loss (corn) due to buffers from any waters of the state, equals $36,000/year.
• Estimated costs to a 1000-acre eastern Washington farm, with 10 percent loss (corn/triticale rotation), equals $185,000/year.

Allow the use of fertilizer and manure when using reasonable and scientifically backed Best Management Practices that have been used for years by dairy farmers across the US and the planet to prevent nutrients from getting in surface water. The goal is to keep the nutrients and pathogens out of the water! Let us figure out how to perform and accomplish that goal. These are example alternatives to a static 100-foot “no-application setback” including:

• Seasonally variable buffers (i.e., 200-300 foot setbacks during wetter months, 5-10-20 foot setbacks when precision application methods used or alongside dry watercourses and or during dry season).
• Precision application, such as injection of liquid or precision applied liquids or solids.
• Incorporation of manure or application to roughened soil conditions or harvestable grass buffers (i.e., setbacks bigger if bare soils or steeper slopes; smaller if low/ no slope fields or with significant crop or stubble cover.)
• Dikes, berms or roads separate field from waterbody. (Water can’t run up hill!)
• Use of technology like Application Risk Management program to better ensure applications are done during correct weather conditions to prevent runoff.

Soil testing should mirror current testing requirements and recommendations used by WSDA, recommendations by NRCS (590), land grant universities, conservation districts. Annual spring tests on every field is duplicative of much of the information in the fall tests (P, K, Ph, organic matter) levels do not usually change much, and eastern Washington N levels will not vary much fall to spring.) Allow continued use of the NRCS 590 standard used in the nutrient management inspections. The standard is working!

Replace the requirement for a professional engineer evaluation of lagoons with WSDA/NRCS lagoon risk assessment. Lagoons scoring high on the risk assessment need corrective actions to lower or eliminate risk.

Seasonal application windows. Allow the successful BMPs that have been incorporated in farm plans for the past 20 years, including the use of Application Risk Management. Allow for use of the winter period application guideline (NRCS Agronomy Tech Note 14). Use T-sum 200 as a beginning guidepost for start of season applications rather than the vague term “spring green up.” The “no application to bare soil unless within 30 days of planting” is arbitrary, without scientific basis. Field applications should occur when weather and soil conditions are appropriate and science shows risk to water quality is minimal or zero. (See seasonal variable buffers and other BMP science documents available at wastatedairy.com.)

The uncertain regulatory interpretations, unknown capital and annual cost burdens of permit compliance imposed on virtually all dairy farms for little to no reason is illogical and indefensible.  If a lagoon is deemed high risk (by a risk assessment process that already exists) then help the farmer get it fixed or replaced. (NRCS, WSDA and conservation districts have been doing that for years.) Otherwise, where is the big problem that demands new, extraneous, worrisome, financially overwhelming regulations? Add to this the judgments, edicts and interpretations of a few staff at a new agency – Ecology – with their added set of terms, standards and conditions. Why?

The dairy farmers of this state have followed the guidance of WSDA, WSU, OSU, the Conservation Commission, private agronomists, planners and engineers. The dairy farms have built, maintained and managed their farm plans to achieve more protection for water quality than most any other sector of our society. Yet Ecology finds these existing programs, practices and procedures not good enough! This permit, under these conditions, is an answer in search of a problem. Yes, there are producers who will need or want this permit. For them, the changes above will help make it possible to implement a permit and still survive. For the rest of the farms, the permit should and must remain optional. Barring significant changes, this permit is an impossible option.

The Washington State Department of Ecology is updating the latest Confined Animal Feeding Operation (CAFO) permit. There are some farms that either need the permit (if they have had discharges to surface waters) or want the permit (for possible protection against third-party lawsuits).

But the permit requirements need to be changed significantly, even for those who want it.

Ecology insists most or all lagoons potentially leak some small amount of “waste” into groundwater. Therefore, Ecology wants to require most farms with more than 200 mature dairy animals to apply for this CAFO permit if those livestock farms have a lagoon lined with clay, or soil or single poly liners (even if built to NRCS standards).

There are two public hearings and a webinar scheduled, and we will be working to set up additional kitchen meetings in early August to hopefully get Ecology staff out to talk with more farms and hear your concerns.

We have tried through innumerable meetings to help Ecology understand the impacts of their presumptions and the consequences of the terms and conditions in this permit. They have listened to some concerns but the current draft permit seriously undermines the ability of many farms to remain in the business. Our concerns are based on:

1. What is written in the draft.
2. An initial technical and economic impact review by Federation staff and board, farmers, consultants and various experts (as compared to the incomplete, inaccurate economic analysis supplied by Ecology).
3. Ecology’s belief that it can require virtually all dairy farms in the state to apply and comply.

We are gravely concerned about the massive compliance costs of this permit and the staggering fiscal impact it will have on most farms across the state.

Several producers have asked for a summary of how this permit can impact your farm and a listing of our suggested alternatives that must be considered by Ecology to eliminate or minimize unacceptable or illogical impacts.

If you own or control more than 200 mature head and own at least one soil-lined lagoon, the permit would require you to apply for permit coverage. Additional concerns include the following:

1. Permit conditions prohibit applications of “…manure, litter, or process wastewater, and other sources of nutrients…” to buffer zone and setbacks. The current draft says that either a 100 foot no-application zone or a 35-foot vegetative buffer (no touch) with no alternatives outlined in permit (see page 27, S4.N). The lost production capacity of those lands was not accounted for AT ALL in the Economic Impact Analysis (EIA) (see page 8 of EIA). We estimate lost production of at least $1200/acre for corn in Western Washington, for example, and at least $1850/acre for corn/triticale rotation ground in Eastern Washington. The Economic Impact Analysis mistakenly assumes fertilizer application is allowed in buffers (see page 8, Section 2.7 of EIA) while the permit language (page 27) prohibits application of fertilizer (as does organic rules on organic production based farms). For example, the estimated costs to a 300-acre west side farm with 10% loss (corn) due to buffers from any waters of the state* equals $36,000/year. The estimated costs to a 1000 acre eastern Washington farm with 10% land buffer losses (corn/triticale rotation) equals $185,000/year.
2. Additional cost of much more frequent soil testing and depth of testing is again misrepresented, and actual test cost cited is wrong in the EIA. Furthermore, several experts question if there is any useful value in testing every field, every year in the spring. Estimated additional testing depends on number of fields but add $80-$250/field/year.
3. Development of a new Manure Pollution Prevention Plan (MPPP), monitoring, recording, recordkeeping, and reporting costs were also dismissed in the EIA. Every farm will be different but there are many new requirements for recording and reporting that are not required in WSDA Dairy Nutrient Management Act inspections (see pages 29-37 of CAFO Draft). The administrative costs to monitor, record, maintain and report those records and reports were discounted in the EIA (see page 10 section 2.10) so no assessment of economic cost analysis was done on the added cost of changes. Our estimated added administrative cost – $5,000-$40,000 per year/farm.
4. Lagoon assessment costs were estimated in the EIA but Ecology incorrectly assumed all farms have one lagoon. We believe it also may have under reported the per lagoon costs. Minimum best guess lagoon report estimate is $7400/lagoon and we don’t even know if it is possible to have an engineer do the report as dictated in draft permit.
5. Additional storage requirements – Many producers have told us the changes in “allowable” spreading dates and conditions, as well as requirement to divert silage and potentially roof run-off water to lagoons, will result in many farms needing additional storage. Additional storage was not assessed in EIA due to erroneous and inaccurate assumptions in EIA (page 10 Section 2.9). (Concrete storage tanks have been running $500k/2-3 million gallons.)

The permit, a new agency and a new set of rules (and after massive investments by dairy farms in farm plans over the past 20 years by farmers and conservation districts) creates immense uncertainty.

(*For example there is no certainty in knowing where buffers start. Ecology’s definition for “waters of the state” is different from the USDA NRCS definition for “waters of the US” (WOTUS). We have been given no assurances that these differences between federal and state law will be resolved, despite repeated requests for clarity to Ecology over the past 15 years. So, the same piece of land, for example a “farmed wetland” designated as “prior converted” and therefore not WOTUS by NRCS, can be interpreted by Ecology under state law as “waters of the state” and therefore would need a buffer and no application of nutrients.)

Why were we told that NRCS lagoons were acceptable (and Ecology was consulted and concurred with NRCS lagoon standards in the 1990’s and early 2000’s), and now those very lagoons are unacceptable and grounds for a discharge permit?

Where is there a problem that can be identified and the solution measured? A recent study in California estimates lagoons may potentially be the source of one tenth of one percent of groundwater nitrate in central California. See page 3 of executive summary of http://groundwaternitrate.ucdavis.edu/files/138956.pdf

Why is Ecology focusing on the one tenth of one percent of nitrate sources?

Ironically, dairy farmers are one of the few groups that are focusing and being regulated already on nitrates. Last week, the Washington State Department of Agriculture reported excellent progress by dairy farms in improved compliance with the Dairy Nutrient Management Act and already very low levels of field specific levels of nitrates on dairy farms were drastically reduced. (See pages 8 and 9 of http://app.leg.wa.gov/ReportsToTheLegislature/Home/GetPDF?fileName=533-DNMPReportToLegJune2016_e9a85fda-7303-4899-a2fb-c30aea1728df.pdf.)

This report alone begs the question as to what problem we are trying to solve by requiring hundreds of dairy farms to get permits, at the costs of tens or hundreds of thousands of dollars per farm or pushing farms out of business for no good reason.