Hard-won victory on dairy discharge
By Dan Lorimier, Conservation coordinator, Southern and El Paso groups
After roughly two and a half years of effort, the Rio Grande Chapter has successfully helped protect New Mexico’s precious but highly threatened groundwater that 9 out of 10 of us rely on for drinking.
A coalition of citizens groups, including the Rio Grande Chapter of the Sierra Club, Amigos Bravos, Caballo Concerned Citizens, Food & Water Watch and others, were expertly represented by the New Mexico Environmental Law Center from early in the process and helped assure a new, comprehensive dairy-discharge rule for New Mexico.
In 2009 it was clear that the existing regulations and dairy practices were failing to protect our groundwater. Two-thirds of the 150 or so dairies operating in New Mexico were exceeding, sometimes wildly exceeding, the pollution limits they were permitted to stay within. New Mexico is a huge producer of dairy products; somewhere around the fifth- to eighth-largest in the country, depending on who you ask; the average herd size of 2,000 head is one of the highest averages in the nation. This powerful industry was in a state of denial over its incapacity to operate within its permitted limits.
At the same time, the dairy industry approached the Legislature hoping to simplify the groundwater-discharge permitting rule, which, because it was cobbled together from other industries’ groundwater-discharge permit regulations, seemed cumbersome and poorly matched to that industry in New Mexico. That year, with both the Chapter and the Environment Department’s support, a law was passed that required the Water Quality Control Commission (WQCC) to adopt new rules that were specific to dairy discharges into groundwater. The Environment Department and its Groundwater Quality Bureau were tasked with developing the new rule, working with the industry and the citizens groups, including the Rio Grande Chapter.
The Department held six “Advisory Committee” meetings and a similar number of “Stakeholder Negotiation” meetings across the state over the next 18 months. The Chapter and other members of the Citizens Coalition participated in all of these. Initially, the industry’s goal was aimed at simplifying the existing regulation by weakening it. When the dairy industry realized the goal of the Environment Department and the Citizens Coalition was to craft a far more comprehensive rule, their response was to boycott the first few of these meetings.
Major points of disagreement revolved around requiring synthetic liners for all lagoons (the dairies protested that clay liners were good enough and that synthetic liners involved extra costs to them), monitor wells to identify sources of pollution (again, the industry complained about the expense and even suggested that monitor wells cause groundwater pollution) and notification of neighbors within a mile radius of a proposed new dairy (industry felt that a proposed dairy was no one’s business but the owner’s).
In June and August of 2010 the WQCC held a hearing on the proposed new rule. The industry’s expert witnesses failed to persuade the Commission that weaker rules were good for dairies and good enough for New Mexicans. The Department and the Citizens Coalition convinced them that adequate groundwater protection requires a thorough and comprehensive regulatory approach. Late in 2010 the WQCC adopted the rule proposed by the Department and the Coalition and sent the new rule over to the Department of Records to be officially put on the “books.”
Meanwhile, the industry appealed the adoption of the new rule to both the WQCC and the New Mexico Court of Appeals. This set off several more rounds of negotiations between the Citizens Coalition, the Department and the industry. During this period New Mexico’s governor took office and immediately tried to block the new rule from being published (the final step in becoming law). This attempt by the governor to sidetrack the new dairy-discharge rule was halted by the New Mexico Court of Appeals when, again represented by the New Mexico Environmental Law Center, some of the Citizen Coalition groups cried foul.
As negotiations between the stakeholders progressed, it became clear that economic pressures on both the agency and the industry would help move things toward an agreement. In the end, the industry got an easier and improved permit-application process and an easier-to-understand regulation to do business under. Because of the work done by the Citizens Coalition with its expert witnesses and the New Mexico Environmental Law Center and by the Environment Department and its Groundwater Quality Bureau, key elements of the new rule like requirements for synthetic lagoon liners, thorough monitor wells, and much improved public notification were retained in the rule.
In October the WQCC adopted the negotiated changes to the regulation and the industry dropped its appeal in the New Mexico Court of Appeals. The Environment Department will begin processing the groundwater-discharge permit applications for the more than half of New Mexico dairies currently operating without a permit.
When the dust finally settles, our state will have the most comprehensive dairy-discharge regulations in the nation. New Mexicans and Rio Grande Chapter members can enjoy another victory for groundwater quality. We believe it was well worth the effort it took to get us there.