Summary of a Recent
Judicial Development in
Animal Feeding Operations

Dairy CAFO Liable for Unauthorized Discharges
into Waters of the United States

Eric H. Foy
National AgLaw Center Research Associate

Summary of Decision

In Department of Ecology v. Douma, 193 P.3d 1102, 2008 WL 4567130 (Wash. Ct. App. 2008) (partially unpublished), the Washington State Court of Appeals, Division Two, held that Douma, a dairy operator, was a significant contributor of pollution under RCW 90.64.030(6), affirming the pollution control hearings board's decision. The court found that the evidence of the nature and quantity of the dairy waste pumped into the trench and the testimony regarding the interaction between the dairy waste in the trench and groundwater supported the board's finding that dairy was a significant contributor of pollution. Therefore, dairy operator was liable for discharging pollutants into state waters. The court additionally reversed the board's decision to suspend the gravity portion of the penalty, and remanded the board's decision to reduce the economic benefit portion of the penalty.

Background

The dairy operator's cattle ranch stored waste from dairy cows in manure lagoons until the manure was applied to field crops during the growing season. Id. at 1104. Toward the end of 1998, the operation received higher than normal levels of precipitation, causing the dairy lagoons to fill more quickly than usual. Id. In early 1999, the dairy operator hired an excavation company to construct an unlined trench, adjacent to the dairy, on land leased and managed by the Washington State Department of Natural Resources (WSDNR). Id. The dairy operator's lease with WSDNR did not authorize use of the parcel for any purpose, prohibited storage of harmful substances on the parcel, and required immediate notification to the state of any spill or release of harmful substance affecting the parcel. Id. After the excavation was completed, the dairy operator pumped approximately 500,000 gallons of dairy waste into the trench, which occurred without WSDNR's knowledge. Id.

An anonymous third party notified WSDNR of the trench's presence, and inspectors were sent to follow up on the notification. Id. They discovered not only the existence of the trench, but also that the trench was in contact with the groundwater supply. Id. The dairy operator was issued a notice of penalty for discharging pollutants into waters of the United States without a permit, and the operator sought relief from the penalty. Id. at 1105. After the prayer for relief was denied, the operator appealed to the board. Id. The board dismissed the appeal as untimely, and the operator appealed to the county superior court. Id. After the case went from the superior court, back to the board, and then to the superior court for a second appeal, the superior court affirmed the board's decision that the dairy was a significant contributor of pollution and discharged pollutants without an authorizing permit. Id. The dairy operator appealed. Id.

Arguments

The operator alleged that the state never presented evidence of the amount of manure that may have seeped into the groundwater. Id. at 1106-07. Without such evidence, the operator argued that the state failed to show that the dairy was a significant contributor of pollution and subject to chapter 90.48 RCW. Id. at 1107. The operator also pointed out that, regardless of the evidence presented, the state never made an official finding that the dairy was a significant contributor of pollution. Id.

The state argued that the dairy's classification as a concentrated dairy animal feeding operation, in a letter from the state to the operator, informed the operator that his facility was a significant contributor of pollution. Id. (unpublished portion of opinion).

Analysis and Holdings

Although not persuaded by the state's letter argument, the court held that "the information regarding the nature and quantity of the dairy waste pumped into the trench, and the testimony regarding the interaction between the dairy waste in the trench and the groundwater" supported a finding that the dairy was a significant contributor of pollution under RCW 90.64.030(60). Id. Therefore, the court affirmed the board's decision holding the dairy operator liable for discharging pollutants. Id.

In spite of the court's holding that the operation was a significant contributor of pollution, the court reversed the board's suspension of the gravity portion of the penalty, because the board failed to identify how the state's penalty determination was incorrect. Id. The court remanded the board's decision to reduce the economic benefit portion of the penalty, because the board did not identify a specific basis for the reduction. Id.

The case was decided on October 14, 2008.