March 10, 2010

To the Chairman and Members of the Senate Agricultural Affairs Committee

RE: ICARE follow-up to 3/9/10 testimony on SB 1346

I. Corrections to Mr. Stott's "facts"

• Waterkeeper Alliance v. EPA: The court's decision in this ruling did not conclude
that feedlot's do not discharge and therefore could not be required to obtain
NPDES permits. The court specifically determined that because EPA had failed to
establish a "presumption of discharge," it could not reasonably assume a "duty to
apply." The implication here is not that feedlots don't discharge (in Idaho feedlots
are the second-leading cause of water pollution), but that EPA hadn't done its
homework under the old rule. You can read a more in-depth summary of this
decision here (EPA's summary is here) and the decision itself here.
• Mr. Stott complained a good deal about what he perceived to be the oppressive
requirements of the new draft NPDES permit for CAFOs. While the testimony
itself should not bear on the committee’s decision-making process (since Idaho is
not designated to administer the Clean Water Act), it might nonetheless be useful
to review the draft permit for yourselves. The permit can be read online here;
EPA’s fact sheet on the permit can be found here. While there are quite a few
inspection and reporting requirements, I would submit that a facility with a well-
organized schedule will have nothing to worry about.
• Mr. Stott's claim that Idaho is "in the top half-dozen states in the nation when it
comes to compliance" is both vague (is he referring to compliance with state laws,
federal rules, or both; is he talking about compliance with environmental, food
safety requirements, or both?) and misleading: in terms of water and air quality,
Idaho's laws are relatively easy to comply with--as ICARE discussed in a
previous letter (pgs 3-5) sent to this committee, there's a huge loophole in the
state's ground water quality rule that has allowed beef and dairy CAFOs to get
away with polluting their neighbors' wells, and air and surface water quality laws
are no more stringent than federal laws (which themselves contain enormous
loopholes that severely impede enforcement efforts). I hope that if the committee
is going to consider passing or supporting this bill based on Mr. Stott's testimony,
it will ask for some documentation to back up and clarify these claims (just as it
asked ICARE to do).
• Regarding the number of feedlots in Idaho and the number that are currently
under NPDES permits: According to the 2007 Idaho Livestock Census, that year
Idaho had between 765 and 1,505 cattle & calf facilities that met EPA’s definition
of a medium or large CAFO (and were therefore eligible to apply for NPDES
permits); though they may have decreased somewhat during this recession, it’s
probably safe to assume that those numbers are similar today (ISDA may be able
to provide more exact numbers); Yet, according to EPA’s online enforcement
database (ECHO), only102 Idaho CAFOs (beef and dairy) are currently regulated
under the CWA’s NPDES program. Further, based on Mr. Stott’s testimony, I
 think the committee can safely assume that far fewer facilities will apply for the
new permit when it is issued (likely later this year).
• Mr. Stott's claim that the Idaho OnePlan is a "phenomenal" means of preventing
pollution is rather astounding given the following facts. ISDA's version of the
OnePlan utilizes manure generation values for Phosphorous that are half as large
as they should be (see this letter from former University of Idaho Professor Ron
Sheffield to Owyhee County Planning and Zoning Adminstrator Mary Huff).
USDA's version of the OnePlan uses the updated values (Dick Johnson at NRCS
can confirm this. His email address is dick.johnson@id.usda.gov and his phone
number is 685-6992). Importantly, the way state law currently operates those
operators whose facilities produce the most manure must go through ISDA for
their NMPs, while smaller operators whose facilities produce a fraction of the
industry's waste go through USDA for theirs. As I'm sure this committee has
heard from Gooding County officials, 80% of the fields in that county exceed
Phosphorous thresholds. Not coincidentally, DEQ monitoring along the portion of
the Snake River that makes up Gooding and Jerome County's southern borders
shows Phosphorous levels exceeding the established TMDL at rates of up to
83.6% (see attached Upper Snake Rock monitoring data). And, to repeat, feedlots
are the second leading cause of water pollution in the state of Idaho (mismanaged
rangeland grazing is number one). None of this even touches on the extensive
ground water and air pollution that has been definitively tied to these facilities
(more on this later). Finally, even if the OnePlan were an effective means of
preventing CAFO pollution, it would still be nearly crippled by the "third-pary"
contractor loophole: "third-party" contractors who receive CAFO waste are not
required to have NMPs in place or abide by the NMP of the facility they received
the waste from; pollution-causing over-application and manure stockpiling via
this mechanism is common.
• The idea that Nutrient Management Plans require expert interpretation is similarly
ludicrous. All that is required to become an approved "Technical Service
Provider" (a person qualified to compile NMPs using OnePlan software) are these
four steps 1) "Enroll in and take the NEDC Nutrient and Pest Management
Considerations in Conservation Planning course," 2) "Enroll in and take the NMP
software training," 3) "Sign up to be a TSP at the NRCS Tech Regulation Site,
and 4) "Complete two trial nutrient management plans using the OnePlan NMP"
(source: http://www.oneplan.org/NMPlan.asp). I'm certain the committee will
agree that these steps are a far cry from generally accepted ideas about what
constitutes "expert" knowledge.
• ISDA's OnePlan website features a sample nutrient management plan. I would
encourage the members of this committee to review that plan and determine for
yourselves whether the dire predictions Mr. Stott had to offer about the
consequences of making these plans public are true or not.
• Sunnyside Feedlot: Mr. Stott testified that Sunnyside Feedlot is a perfect example
of how ISDA effectively enforces environmental and public health laws and how
the Idaho Cattle Association cooperates with enforcement efforts. With all due
respect to Mr. Stott, those claims are simply untrue. Sunnyside Feedlot's operator
(Seth Matthews) was NEVER fined in all of his years of operating (during which
 time he was continually out of compliance with his NMP and state environmental
and public health regulations); further, Sunnyside Feedlot closed down (in 2006)
because Mr. Matthews ceased making payments on his mortgage, not because of
state-level enforcement actions. Had Matthews not defaulted on his mortgage he
would probably still be operating today and still be out of compliance. With
regard to the few actions ISDA and DEQ did take to assess the severity of the
situation, ICA fought tooth and nail to prevent them from going through. ICA sent
a series of emails to DEQ demanding that they put a stop to any attempt to set up
air quality monitoring around Matthews' CAFO. ICA also heartily protested ISDA
and DEQ's joint ground water monitoring efforts—in fact, ICA pressured the
Governor’s office to put a hold on ground water monitoring. All of this is a matter
of public record and accessible at ISDA's Boise headquarters. (Because there is so
much documentation on Sunnyside, I've attached the most representative sample I
could without overwhelming you.) Sunnyside Feedlot is not the only example of
this kind of gross neglect on behalf of ISDA and obstructionism by ICA: it is
merely the best documented-- the neighbors of that feedlot were willing to
undergo more intimidation, bullying, and implicit and explicit threats than most
people have been or would be.

II. Documentation of CAFO pollution in Idaho and interagency confusion over

enforcement authority:

• Groundwater:
o “Nitrate and Emerging Contaminants Evaluation of Springdale, Idaho:
Cassia County Nitrate Priority Area”, Indicative quote:
Possible sources of nitrate include commercial fertilizer
application, CAFOs (dairies and feedlots), septic tank
effluent, and legume crop residues. There is evidence of
impact from fertilizer and animal or human waste sources
from the analysis of nitrogen isotopes in the study area.
While agriculture has been occurring in the area for
decades, the number of cattle in confined operations
in the area has increased only recently (Figure 18).
Yearly nitrate concentrations for wells sampled by DEQ,
ISDA, IDWR, and USGS were averaged to determine if an
increasing trend was present in Springdale. Based on 171
nitrate values from wells in the Springdale area, an
increasing trend (90% confidence level) was
identified between the years 1993 and 2001, with an
average nitrate concentration of 4.8 mg/L. The trend is
stable for the years from 2001 to 2009 based on 432
nitrate values, with an average nitrate concentration of 8.5
mg/L.” (pg. 26, my emphasis)
o “Possible Sources of Nitrate to the Springs of Southern Gooding County,
Eastern Snake River Plain, Idaho,” Table 8 on page 17 provides a quick-
 and-easy breakdown of the sources and estimated amount of nitrogen
loading due to those sources.
o “Ground Water Quality Monitoring Results for the Purple Sage Study
Area, Canyon County, Idaho” Indicative quote:
”Most nitrate concentrations fall in the range of 0.1 to about 5 mg/L, while
chloride concentrations range from 1 to about 32 mg/L. This results in a
grouping of data points within a narrow vertical band in Figure 4. A positive
correlation between nitrate and chloride concentrations has been noted in
areas where impacts from on-site wastewater treatment systems have
occurred (Boyle, 2003; McQuillan, 2004; Meehan and Welhan, 2005). The
Purple Sage nitrate and chloride data do not show this correlation,
indicating that nitrate is from a source such as agricultural activities or
confined animal feeding operations.” (pg. 9, my emphasis).
o “Sunnyside Ground Water Monitoring Project Report: Former Sunnyside
Feedlot and Vicinity, Weiser, Idaho” Indicative quotes:
”The highest concentrations of nitrate detected in the study area were in
samples collected where CAFO wastewater may be present in ground water”
(pg. 20).
” The wells with lowest nitrate concentrations (MW-9, -10, -12, and MW-6)
were the only places where ammonia was consistently detected. […] The
presence of ammonia in ground water indicates that ground water in the
vicinity of wastewater ponds and onion dump is anaerobic, and as ground
water migrates downgradient and becomes more oxygenated, the ammonia is
expected to become oxidized and form nitrate” (pg. 20-21).
”The source of the beta-estradiol in ground water downgradient of the onion
dump is unknown but may be related to (unauthorized) disposal of a large
quantity of cattle feed that contained beta-estradiol in one (or more) of the
onion disposal trenches” (pg. 30, my emphasis).
o More reports can be found on DEQ’s ground water reports page.
• Surface Water
o See attached Upper Snake Rock Monitoring Data and jpg map.
o The Idaho 2008 Water Quality Assessment Report provides a useful
overview of the condition of the state’s surface waters and sources of
pollution.
o More in-depth (if potentially confusing) information can be found on
DEQ’s page for Subbasin Assessments, TMDLs, and Implementation
Plans
• Air Quality. Because air quality monitoring is not conducted at as many sites or
across the same range of locations (urban, suburban, rural) that ground and
surface water monitoring is, there is not as much in-depth information on the
extent of CAFO air pollution in Idaho. Air monitoring data from Sunnyside
feedlot is telling in this regard, as is a 2003 DEQ White Paper (see link below)
regarding air quality in the Treasure Valley. Nationally, the Iowa CAFO Air
Quality Study is the most authoritative review of the issue.
o Treasure Valley Air Quality Issues: “By far, the largest source of ammonia
in the Treasure Valley, accounting for 64% of all emissions, was livestock
urine and solid waste” (pg. 6). “Particulate emissions from livestock made
 up of dust can be calculated using an emissions factor of 34.4 pounds of
PM10 per head of cattle per year. Based on this calculation, each additional
5,814 cattle would contribute 100 tons per year of PM10 to the airshed” (pg.
8).
• Interagency issues. There is some documentation that demonstrates the circular
arguing between DEQ and ISDA over enforcement authority, but it is not as
extensive as the documentation showing that CAFOs are a leading cause of
pollution in the state. This is because the issue most often crops up when a
problem is first being reported and documentation is thin—especially when the
problem is reported via a phone conversation.
o Following a meeting with ISDA and DEQ representatives in October
2009, ICARE sent a nearly 20-page letter attempting to clarify some
questions that were not answered at the meeting. That letter can be found
here. Included in the letter are a number of questions concerning
jurisdiction over ground water contamination from a CAFO. In their 1.25
page response to our letter (also included in the previous link) ISDA
continued to refuse to answer those questions.
o DEQ has compiled a “CAFO Authorities Chart” that is supposed to help
citizens determine who they need to speak to if they’re having problems
with a neighboring CAFO. It’s clear that with respect to water quality
concerns originating at beef and dairy CAFOs, ISDA has authority on-site,
the problem with the chart is that it doesn’t deal with who has what
authority once that contamination leaves the CAFO (which, according to
the laws of physics, it almost inevitably will).
o The other problem with providing documentation on interagency
squabbling is that a document or two may not adequately convey the
extent of it: during a phone conversation it may be obvious; on paper it is
often much subtler and requires a broader view. ICARE has most of the
publicly available information on Sunnyside Feedlot (several hundred
pages worth) and would be happy to bring that documentation in for the
committee or individual members to peruse as a case study. We also have
several members who could speak to the committee about their personal
experience with the problem.

III. ICARE’s comments on SB 1346

The amendment reads like an attempt to exempt CAFOs operating without NPDES
permits from the Clean Water Act—but this is something the legislature does not have
the authority to do.
• Neither the legislature nor any of the agencies of the state of Idaho are designated
to administer the Clean Water Act with respect to CAFOs, and even CAFOs
operating without NPDES permits are still subject to the Clean Water Act’s zero
discharge requirements.
The broad, non-specific language giving ISDA authority to administer “all laws to protect
water quality” on CAFOs without NPDES permits will create severe problems for
producers, CAFO neighbors, and state and local agency personnel.
• The amendment creates the false impression that non-permitted producers are
only accountable to ISDA on water quality issues.1 This is a problem for
producers, ISDA personnel, local officials and CAFO neighbors.
• By creating this false impression, the amendment may encourage producers
eligible for NPDES permit coverage not to apply for them. Legislators who may
think of this as a good thing—a way of expressing their discontent with the
federal government and limiting federal authority—would be mistaken. By
encouraging producers not to apply for NPDES permits legislators will be putting
those producers at risk of more stringent federal enforcement action, not less:
under the CWA, all CAFO operators are required to report discharges to EPA—
whether or not they are operating under a NPDES permit—and when non-
permitted facilities discharge EPA has the authority to fine them for discharging
and for operating without a permit.
• The amendment will leave ISDA personnel, local officials and CAFO neighbors
who already struggle to keep track of who has what authority over CAFO-caused
water pollution more confused and disgruntled, not less.

The amendment’s language creates artificial boundaries inconsistent with the laws of
physics: the kind of water contamination subject to enforcement under state water quality
laws—pollution of streams, creeks, irrigation canals and ground water—does not stay
“within the confines” of CAFO boundaries. These artificial constraints would usurp
DEQ’s enforcement authority over water quality laws, and undermine its ability to
prevent and stop water pollution and protect human health—duties that are central to the
agency’s purpose (Idaho Code 39-102A).
• The amendment creates confusion about which state agency has the authority to
enforce water quality laws when a non-permitted CAFO is the source of the
problem but where the contamination itself is discovered outside the “confines” of
the CAFO.
• The amendment would also mean that agency disagreements about jurisdiction
would hamper either agency’s efforts to protect water quality and public health.
This exact scenario already happens on a regular basis with regard to ground
water: bureaucratic interagency squabbles over “statutory authority” have left
Idaho citizens in at least eight Idaho counties—Washington, Gem, Canyon,
Owyhee, Gooding, Jerome, Cassia, and Twin Falls—whose wells have been
polluted with nitrates, E-coli, livestock-only antibiotics and steroid hormones
from CAFO lagoons and over-application of CAFO manure to neighboring fields
with no help.

The amendment’s language gives ISDA authority to administer water quality protection
laws—“shall have authority”—but does not require ISDA to administer all such laws.

1
As stated above, CAFOs without NPDES permits are still subject to the Clean Water Act’s zero discharge
requirements.
Giving state agencies the option of choosing not to enforce water quality laws jeopardizes
public health and safety, and public and private property.
• Similar loopholes that exist elsewhere in Idaho Code have repeatedly served to
justify ISDA’s habit of putting industry’s bottom line before the health and safety
of Idahoans affected by CAFO pollution. For example, though ISDA has the
authority to regulate animal waste, so-called “third-party” applications of CAFO
waste are completely unregulated; because of this, over-application of CAFO
waste by “third-parties” is routine, as is ground and surface water contamination
due to over-application (Idaho Code 22-110).
• While the Beef and Dairy MOUs were in place, ISDA had the opportunity to
show that it could both promote Idaho’s CAFOs and keep CAFO operators in
compliance with state and federal water quality protection laws: as Idaho’s 2008
Water Quality Assessment Report shows, ISDA failed miserably.2 Given that
ISDA has consistently failed to protect water quality at and around CAFOs—what
reason does the legislature have to believe that ISDA will behave any differently
now?

The amendment’s provision classifying nutrient management plans as “trade secrets”

panders to industry interests at the expense of public health and safety, local control and
public and private property rights.
• Since nutrient management plans are supposed to protect CAFO neighbors and
communities from CAFO-caused air and water pollution as well as help operators
utilize the nutrients their animals produce in an agronomically correct way, this
kind of amendment could only be justified if Nutrient Management Plans were
proven successful at achieving these goals—something past and present problems
with NMPs proves is little more than a pipe dream.3
• Beyond frequently identified unintentional human error, the NMPs prepared by
ISDA for CAFOs deliberately utilize manure generation values for Phosphorous
(based on 30-year old data) that are half as large as they should actually be.4
• CAFO neighbors and neighbors of third party waste contractors need to be able to
protect the water they use for drinking, irrigation and recreation from CAFO
contamination.
• By not allowing neighbors of proposed feedlots to access the NMPs of proposed
facilities, this amendment limits their ability to assess the potential impact of
those facilities; this impacts their ability to petition their government for redress

2
According to the Report, Idaho’s CAFOs are the second leading cause of water pollution in the state. See:
http://iaspub.epa.gov/waters10/attains_index.control?p_area=ID. A more detailed exploration of ISDA’s
CAFO enforcement failures can be found starting on page 5 of this document:
http://www.scribd.com/doc/27232941/ICARE-Comments-on-1213-and-1223
3
Among other errors, neighbors of the now defunct Sunnyside Feedlot in Washington County found that
the facility’s NMP wrongly stated that it was “not within a nitrate priority area”
(http://www.scribd.com/doc/27485917/Sunnyside-Feedlot-Neighbor-to-NRCS-August-21-2005). In 2007,
several years after the launch of the Idaho OnePlan, NRCS identified and corrected certain “inherent
errors” in the program (NRCS Agronomy Tech Note No. 22).
4
See: Dr. Ron Sheffield to Owyhee County Planning and Zoning Administrator Mary Huff, July 18, 2007.
Available at: http://www.scribd.com/doc/25446833/ICARE-draft-NPDES-CAFO-permit-comments-
Appendix-B
 of grievances as well as the ability to protect their property and safeguard their
and their families’ health.
• Similarly, this amendment would limit the ability of local governments to make
reasoned, standards-based decisions to either approve or deny CAFO permit
requests (Idaho Code 67-6519(4a)).

It is one thing to exempt nutrient management plans from public records requests; it is
another thing entirely to exempt “all information generated as a result of such plan.” If
this is an attempt by the Idaho Cattle Association to keep EPA from accessing ISDA
records pertinent to an enforcement action, it will fail: EPA can access those documents
through subpoena if need be. What it will do is further restrict the ability of Idaho
taxpayers to access the very documents that they pay for.
• For example: letters or other records (such as the one ICARE has from Dr. Ron
Sheffield to Owyhee County Planning and Zoning Administrator Mary Huff) that
speak to flaws in or problems with nutrient management plans would probably be
exempt from disclosure. Would soil test results be exempt? Would third-party
contractors have access? The amendment’s implications are simply too far
reaching.

The information contained in NMPs compiled for Beef CAFOs does not fit the meaning
of “trade secrets,” “production records,” or “proprietary information” identified by
Idaho’s public records law.
• The law defines “trade secrets” as: “information, including a formula, pattern,
compilation, program, computer program, device, method, technique, process, or
unpublished or in progress research that: (a) Derives independent economic value,
actual or potential, from not being generally known to, and not being readily
ascertainable by proper means by other persons who can obtain economic value
from its disclosure or use; and (b) Is the subject of efforts that are reasonable
under the circumstances to maintain its secrecy.” (Idaho Code 9-340D(1)).
• The law does not define “production records,” but in the context of the exemption
as a whole it is clear that these refer to financial records pertaining to housing or
commercial real estate (Idaho Code 9-340 D(2)).
• The word “proprietary” only appears once in the list of exemptions, and refers
specifically to proprietary (i.e. patented) varieties of seeds. Given this very
specific usage, unless Idaho’s beef CAFOs intend on patenting their cows’
manure, applying the term “proprietary” to nutrient management plans and “all
information generated as a result of such plan” would be absurd (Idaho Code 9-
340D(9)).

Thank you for your time in reading this email in its entirety and for investigating and
confirming the information we have provided you.

Please feel free to contact us if you have further questions, or if we may be of additional
assistance.
For all of the reasons stated above, and many, many more, we urge you to vote no on SB
1346.

Respectfully Submitted,

Alma Hasse
Executive Director
I.C.A.R.E.
PO Box 922
Fruitland, ID 83619