Wash. State Dairy Fed'n v. State

• Decision Date: 29 June 2021
• Docket Number: No. 52952-1-II,consolidated with No. 53144-5-II,52952-1-II
• Citation: 490 P.3d 290
• Court: Washington Court of Appeals
• Parties: WASHINGTON STATE DAIRY FEDERATION and Washington Farm Bureau, Respondents, v. STATE of Washington, Department of Ecology, Petitioner. Puget Soundkeeper Alliance; Community Association for Restoration of the Environment (Care); Friends of Toppenish Creek; Sierra Club; Waterkeeper Alliance ; and Center for Food Safety, Respondents. Puget Soundkeeper Alliance; Community Association for Restoration of the Environment (Care); Friends of Toppenish Creek; Sierra Club; Waterkeeper Alliance ; and Center for Food Safety, Respondents, v. State of Washington, Department of Ecology, Petitioner.

490 P.3d 290

WASHINGTON STATE DAIRY FEDERATION and Washington Farm Bureau, Respondents,

v.STATE of Washington, Department of Ecology, Petitioner.

Puget Soundkeeper Alliance; Community Association for Restoration of the Environment (Care); Friends of Toppenish Creek; Sierra Club; Waterkeeper Alliance ; and Center for Food Safety, Respondents.

Puget Soundkeeper Alliance; Community Association for Restoration of the Environment (Care); Friends of Toppenish Creek; Sierra Club; Waterkeeper Alliance ; and Center for Food Safety, Respondents,

v.State of Washington, Department of Ecology, Petitioner.

No. 52952-1-II

consolidated with No. 53144-5-II

Court of Appeals of Washington, Division 2.

Filed June 29, 2021

Phyllis Jean Barney, Attorney General's Office, Po Box 40117, 2425 Bristol Ct. Sw, Olympia, WA, 98504-0117, for Petitioner.

Andrea Kathryn Rodgers, Our Children's Trust, 3026 Nw Esplanade, Seattle, WA, 98117-2623, Andrew Mcaleer Hawley, Attorney at Law, 1402 3rd Ave., Ste. 1022, Seattle, WA, 98101-2110, Charles Marshall Tebbutt, Attorney at Law, Daniel Snyder, 941 Lawrence St., Eugene, OR, 97401-2815, Virginia Nicholson, Schwabe Williamson & Wyatt PC, 1420 5th Ave., Ste. 3400, Seattle, WA, 98101-2339, Colin Jeffrey Folawn, Elizabeth E. Howard, Schwabe, Williamson & Wyatt, P.C., 1211 Sw 5th Ave., Ste. 1900, Portland, OR, 97204-3719, for Respondent.

Lisa M. Petersen, WA State Attorney General's Office (LAL), 800 5th Ave., Ste. 2000, Seattle, WA, 98104-3188, for Other Parties.

PUBLISHED OPINION

Cruser, J. ¶ 1 Puget Soundkeeper Alliance, Community Association for Restoration of the Environment, Friends of Toppenish Creek, Sierra Club, Waterkeeper Alliance, and Center for Food Safety (collectively, Soundkeeper) appeal the Pollution Control Hearing Board's (PCHB) order on partial summary judgment and its ruling following the administrative hearing approving the Washington Department of Ecology's (Ecology) Concentrated Animal Feeding Operation (CAFO) Waste Discharge General Permit (state only permit) and "Combined" National Pollutant Discharge Elimination System (NPDES) and State Waste Discharge General CAFO Permit (combined permit). Soundkeeper argues that the PCHB erred because (1) the permit conditions do not satisfy the "all known, available, and reasonable methods of prevention, control, and treatment" (AKART) requirement with respect to discharges emitted from manure storage lagoons, composting areas, and animal pens and corrals (2) the permit conditions do not ensure that discharges from CAFOs will not violate water quality standards, (3) the permits do not provide for adequate monitoring, (4) the permits fail to provide for public comment on site-specific nutrient plans prior to issuance, and (5) Ecology was required to consider the effects of climate change in drafting the permits but failed to do so.

¶ 2 The Washington State Dairy Federation and the Washington Farm Bureau (collectively, Dairy Federation) appeal the PCHB ruling affirming the use of T-SUM 200 as a standard for determining when to begin spring field application of manure. The Federation argues that (6) T-SUM 200 does not satisfy AKART requirements as applied to CAFOs in Eastern Washington.

¶ 3 We hold that (1) the permit conditions meet AKART requirements for animal pens and corrals, but not for existing manure lagoons or composting areas, (2) the permit conditions do not protect all covered activities from violating water quality standards, (3) monitoring beyond the soil sampling and visual inspections required by the permits is necessary to ensure compliance, (4) the combined permit fails to make site-specific information regarding how a CAFO will comply with permit requirements available for public comment and review as required under federal regulations, (5) Ecology had a responsibility pursuant to the State Environmental Policy Act (SEPA), ch. 43.21C RCW, to consider the effects of climate change before issuing the permit, and (6) the T-SUM 200 standard for field application satisfies AKART requirements as applied to Eastern Washington.

¶ 4 Accordingly, we affirm in part and reverse in part and remand the permits to Ecology for rewriting consistent with this opinion.

FACTS

I. CAFOS AND WATER CONTAMINATION

¶ 5 A Concentrated Animal Feeding Operation or "CAFO" is a type of agricultural facility that confines and feeds animals for a minimum of 45 days in a 12-month period in a designated lot or facility that is not otherwise used to produce crops or vegetation. 40 C.F.R. § 122.23(b)(2). CAFOs vary in size depending on the number of animals confined at a facility. 40 C.F.R. § 122.23(b)(2), (6). And they may house animals such as dairy cows, sheep, hens, or other types of livestock and poultry. 40 C.F.R. § 122.23(b)(2), (6). Dairies represent one type of animal feeding operation, but not all dairies are CAFOs. As of July 5, 2018, there were 377 dairies operating in Washington, of which 230 were CAFOs.

¶ 6 CAFOs produce byproducts, including manure, litter (manure produced by poultry), and process wastewater (a form of liquid waste created during production of animal-based products). "[O]nce the appropriate time is reached during spring and crops are starting to grow," Administrative Record (AR) at 3803, these byproducts are used as fertilizer and applied to crop land as a source of nutrients. The crops may, in turn, become feed for the confined animals.

¶ 7 Manure is produced year-round and accumulates over the winter. While crops are not growing or the growth rate is slow due to low temperatures, liquid manure and other liquid waste byproducts are stored in lagoons or upright tanks. Most lagoons are "earthen lagoons" composed of "compacted earth and clay" that forms a barrier to contain the liquid waste. Id. at 4034. Some CAFOs separate manure solids from the liquid waste. Solid manure is stacked in composting areas to dry out for use in land application or to be transformed into a "saleable product." Id. at 3872.

¶ 8 Both lagoons and composting areas have the potential to emit discharges that contain pollutants. Multiple studies have determined that lagoons leak waste into soil, and for some lagoons, this leakage has resulted in a documented impact on groundwater. Although waste from composting areas is less likely to seep into soil because this activity is typically conducted in dry climates, composting areas present a potential source of discharge that could likewise detrimentally impact groundwater. In addition to composting areas and lagoons, manure may also temporarily accumulate in pens and corrals where animals are confined. However, because of compaction by cattle, the surface forms a natural barrier between the contaminants in manure and the soil below.

¶ 9 Manure, litter, and process wastewater contain nutrients such as nitrogen and phosphorous. In a process called "mineralization," organisms within soil break down organic nitrogen and convert it to an inorganic form that a plant can then use. Id. at 7034. Phosphorous must similarly undergo a mineralization process to convert the organic form of the nutrient to one that is available for plant uptake.

¶ 10 Manure, however, is an "imbalanced fertilizer," meaning the amount of nutrients provided by the manure does not equal the amount of nutrients the crop needs or is able to use. Id. at 7036. As a result, excess nitrate, which is "highly mobile" in soil, migrates below the root zone where it will leach into groundwater and eventually reach surface water. Id. at 7035. Phosphorous binds to soil and is unlikely to leach into groundwater, but it can move off-site in runoff from fields and reach surface water.

¶ 11 Nitrates have contaminated public and private drinking water in Washington. Although not directly toxic when consumed by most humans, nitrates are hazardous when consumed by vulnerable populations.

¶ 12 Studies conducted in the lower Yakima Valley and in the Sumas-Blaine aquifer in Whatcom County reveal the degree to which CAFO activity in those regions has affected the concentration of nitrate in groundwater. In the Yakima Valley, over 20 percent of the private wells sampled during the course of the study did not meet safe drinking water standards due to nitrate contamination. The Environmental Protection Agency (EPA) concluded that CAFOs are a source of nitrate in that area and that "dairies and other livestock operations contribute 65 [percent] of the nitrogen load to the land surface." Id. at 7153.¹ Similarly, in Whatcom County, 29 percent of the tested wells did not satisfy the drinking water standard. The study attributed the nitrate contamination in large part to agricultural activities, "with manure contributing the largest portion of nitrogen to the land surface." Id. at 7154.

¶ 13 Excess nitrates in surface waterbodies are also problematic in that they can promote "eutrophication," which is a "slow, natural process where sediments build up in a waterbody like a lake." Id. at 7037. A surplus of nitrate in a given waterbody can lead to excessive algae or plant growth that reduces dissolved oxygen and results in "stress or death to aquatic organisms, including fish." Id. at 7035. Over time, the sediments that build up in the waterbody during eutrophication can fill it in entirely, changing the waterbody to a wetland and eventually to dry ground.

¶ 14 Excess phosphorous in soil is problematic due to the potential detrimental impact to surface water. Like nitrate, an overabundance of phosphorous in a waterbody also contributes to eutrophication. In addition, when enough phosphorous is present, cyanobacteria, a type of algae, can out-compete other algae and cause blooms that produce liver, nerve, or skin toxins. These toxins are a significant public health threat that can cause sickness in both humans and animals.

¶ 15 Fecal coliform, a type of bacterial pollutant found in animal waste, is another type of contaminant found in manure that is of particular concern at a CAFO. Following a...