A citizen activist forces New Mexico's dairies to clean up their act

  • Jerry Nivens stands near what he refers to as "my little miracle in the desert," a naturally occurring pond that is fed by ground water surrounded by arid desert. The pond is located less than a mile away from a proposed dairy site.

    Vanessa M. Feldman
  • One of the many large-scale dairies that operate along Interstate 10 in Doña Ana County, New Mexico.

    Vanessa M. Feldman
  • Jerry Nivens, standing outside his trailer door, mobilized other Caballo citizens in an almost-four-year fight to keep ParaSol from building a dairy near Percha Creek.

    Vanessa M. Feldman
  • ParaSol Dairy’s plans appear to have been abandoned — the proposed site now displays a sign for a residential subdivision.

    Jerry Nivens

Page 3

Nivens himself attended every stakeholder meeting and hearing for the next 18 months. "I went all over the state for that," he recalled. "My wife said, 'Why don't you quit that?' It's because I don't know how to quit it. It's such an urgent matter, our water, and what do you do when you mess it up?"

Months of public comment, expert testimony and re-drafting went by. Then, in April and June of 2010, the Environment Department held official hearings in front of the state's Water Quality Control Commission, which has the final say on the rules the department submits. This time, the dairy owners showed up. Each stood up, declared his patriotism and made nearly identical complaints.

"The New Mexico Environment Department's proposed rules will be the demise of the dairy industry in this state," said Alva Carter, a dairy owner from eastern New Mexico and chair of the dairy industry group, who served as a spokesperson, at the June hearing. "Many of the existing dairies will be forced to shut down, thereby depriving the state, local communities and their citizens of a valuable economic engine and associated jobs, not to mention the safest and most nutritional natural food product known to man." If the rules go through as is, he said, "We will go to Texas, or we will go to Oklahoma, or we will go to Colorado."

The monitoring wells and synthetic liners were too costly, Carter went on. Besides, he said, existing monitoring wells "have been the conduit to contaminate the groundwater." Clay liners work well in most circumstances, he said, and synthetic liners can rip and fail.

"It seems like we're low-balling everything to the point that it might not even be effective," Nivens responded. "Every time you get on an elevator ... you will remember that the low bid got it. And the low bid's not always best."

Olson calmly demolished Carter's arguments. "Clay liners seep," he said, pointing to widespread contamination from dairies that use them. "Synthetic liners are one million times less permeable than a clay liner. They are readily available, and there is a cost associated with them. We don't deny that, but in terms of preventing water pollution, this is the most effective way."

Besides, Olson noted, existing dairies that weren't polluting wouldn't need synthetic liners -- only new dairies or those already cited for pollution. As to Carter's claim that monitoring wells cause contamination, Olson's response was almost a sigh. "The department has been trying to address this issue with the industry for several years. We keep asking for any type of technical or scientific information to back up their case (but none is submitted)." The fact that lagoons filled with manure water leak and contaminate groundwater below them is "basic science," said Olson.

And though synthetic liners and monitoring wells -- which can approach $10,000 in areas with deep water tables -- aren't cheap, pollution cleanup is even more expensive.

"Once you get groundwater contamination, a lot of times you're looking at hundreds of thousands to millions of dollars to work through an abatement where you could have prevented the whole thing for a fraction of that in up front costs," says Olson. "That's part of what we pushed in the dairy rule."

In December 2010, the department released its final rule. The activists didn't get the notification letters they'd requested for everyone within a mile of a proposed dairy, or the two- and three-mile setbacks from schools, residences, parks and water bodies. Instead, only a newspaper notice and sign was required along with setbacks of 200 to 1,000 feet. But Nivens was pleased. "It was keeping the light on in the lighthouse," he says. "And it was a real chore, but it finally worked out."

The rule became law in January. But hours after new Republican Gov. Susana Martinez took office, she issued an executive order to stop it, with coaching from dairy lawyers. New Mexicans for Dairy Reform took her to the state Supreme Court. "It didn't take them 15 minutes to say, 'You can't do this, Governor, you don't have the authority,' " says Nivens.

So the dairies appealed again, placing the rules in limbo. Finally, in mid-July, the Environment Department brokered a settlement. It lightens some reporting requirements, adds a new variance procedure and mediation for disputes over monitoring well placements, clarifies that dairies may keep unlined lagoons if there is no evidence of contamination, and allows operators to mix irrigation water with their wastewater. But it keeps the main protections -- synthetic liners, monitoring wells, and flow metering and nutrient management systems to limit and track where nitrates are going -- in place. The Water Quality Control Commission unanimously approved this final version of the rules Nov. 16. They are scheduled to go into effect Dec. 31.

Jon Block, the attorney who represented the citizen coalition, calls New Mexico's rules some of the strongest in the country. "While none of this is a magic wand, from the point of what we care about, these regulations are going to slowly change the face of dairy production in this state and bring it in line with higher and higher levels of best practices."

Nivens and his allies sometimes wonder why the dairies fought so hard; the four years of lawyering probably cost more than monitoring wells. But Michael Jensen of Amigos Bravos believes the dairies were worried that regulators in other states might adopt similar rules.

"It's not just about New Mexico dairies, it's about dairies in general," he says. "People were looking to see what New Mexico was going to do. Because the dairies are looking at places to, sort of, hide, because they don't like regulations."

But even if other states aren't influenced, New Mexico's overall attitude toward dairies seems to have changed. In December 2010, the Environment Department denied its second dairy permit, for the Ruch dairy in Hobbs, which had been discharging waste without a permit. Environment Secretary Ron Curry has left. His replacement, David Martin, recently highlighted the need for industry to be honest in permit applications, thanking local activists for outing a permittee whose application underestimated how industrial discharge would affect groundwater. "Regular citizens can make a difference in protecting the environment," Martin commented.

The dairymen's attitudes may also be shifting. Beverly Idsinga, whose group Dairy Producers of New Mexico represents most of the state's dairies, was pleased with the final rules. "I think (they are) going to be favorable to producers; it's going to be easier to follow than before," she says.  The dairymen did, however, reserve the right to evaluate the rules after a year, and petition the Environment Department for changes if they are having "any problems," Idsinga adds.

As for ParaSol, owner John McCatharn eventually got his permit. But because of the dairy's sensitive location, it was loaded with so many requirements -- from double synthetic liners to extra flood barriers -- that McCatharn, who declined to comment on his plans for the dairy, appears to have abandoned the project. Today, the site looks much as it did when Nivens first saw it four and a half years ago -- a dirt lot by a dry creek in the midst of desert. One day this fall, though, the tattered notice for the dairy disappeared. In its place is a new sign. It reads: "Para Sol Subdivision. 116 Lot Type II Residential Subdivision. Subdivider: John McCatharn."

This story was funded by a grant from the McCune Charitable Foundation. It was produced in collaboration with the Food and Environment Reporting Network, an independent, nonprofit news organization producing investigative reporting on food, agriculture and environmental health.

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