Milk and Water Don’t Mix

How a chain-smoking Texan forced the New Mexico dairy industry to clean up its act

Jerry Nivens

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. By Vanessa M. Feldman.

Jerry Nivens lives in a trailer in Caballo, N.M., 165 miles south of Albuquerque. A bulky Texas transplant who chain-smokes American Spirits, Nivens cares as deeply for his mesquite-speckled patch of ground as any rural New Mexican. He enjoys driving into the mountains, where he used to while away afternoons panning for gold. He goes fishing Lone Star-style–in reservoirs, not rivers.

On the sunny May day I met him, he spilled out of his GMC Jimmy sporting a National Rifle Association ballcap and Magnum P.I.-style sunglasses. He wore brown corduroy pants hung from suspenders with a matching jacket over a plaid shirt. A giant Marlboro belt buckle completed the ensemble. As we drove around, Nivens marveled at artesian pools supporting desert wildlife, exclaimed as a squadron of baby quail crossed our path, and wondered over underground rivers that run to the nearby Rio Grande. Retired from the refrigeration business, he earns money from an invention of his used for water purification. He spends much of his time alone. “I’m kind of an old hermit,” he says.

Which, in a way, was why I had come–to learn how and why this loner became the driving force behind a movement that brought the state’s mega-dairies to heel. The dairy industry is New Mexico’s largest agricultural sector and an influential lobbying force. Although the state Environment Department has long worked with dairies to reduce pollution, change has been slow: Almost 60 percent of the state’s dairies have polluted groundwater with manure runoff, yet not one has begun the required cleanup.

Now, thanks largely to the pressure brought to bear by Nivens, his allies, and an Environment Department employee named Bill Olson, New Mexico has passed some of the most progressive dairy-related water regulations in the West.

Citizens have campaigned against dairy pollution in Idaho, Washington and California. Yet despite grassroots support for tighter controls, industry has largely succeeded in slowing or even loosening regulations. New Mexico’s new rules may inspire other states to take the responsibility for limiting factory-farm pollution into their own hands, activists say.

In early 2007, “there was a rumor in one of our local newspapers here about some dairy trying to come down close to Caballo,” Nivens explains as we drive to a sandy wash called Percha Creek. At first, he paid little attention, but then curiosity finally sent him exploring a tangle of dirt roads until he found a sign announcing ParaSol dairy’s intention to build a 2,000-cow facility. It was right next to the creek, which becomes a raging torrent when it rains. There were houses nearby, too, and the Rio Grande, a drinking water and irrigation source already polluted by E. coli, was just two miles downstream.

To Nivens, it looked like a disaster in the making: Flash floods could flush manure from the dairy into Percha Creek, polluting the shallow groundwater and eventually the Rio Grande, threatening the drinking water of nearby residents and possibly contaminating the lettuce, chiles and pecans growing downstream.

Nivens went first to a local diner to share his fears with neighbors, and then to a nearby chile-processing plant. A woman there asked if a petition might stop the dairy. ” ‘I don’t know,’ ” he recalls saying, ” ‘but I’ll go home and make some.’

“That’s how it all started.”

Dairy Row

Oneof the many large-scale dairies that operate along Interstate 10 in Doña Ana County, New Mexico.

The modern Western dairy, more factory than farm, was invented in Los Angeles County, Calif., by Dutch dairymen after World War I. Newly arrived from a land-scarce country, they brought the idea of keeping cows in a small space and importing their feed from elsewhere. This made it possible to become a successful dairyman in the arid West, which generally lacks good pasture.

As L.A. County boomed, so did the dairies. But sprawl pushed them out, first into the Chino Valley and neighboring San Bernardino County, and later, in the 1980s and 1990s, north into the San Joaquin Valley or out of the state entirely. California is still the number-one milk-producing state in the country, but Idaho is now number three, Texas seventh, New Mexico ninth, and Washington tenth.

With each move, the dairies grew. They sold land at suburban development prices and bought other parcels at agricultural cut rates, using the extra cash to add more cows. Changes in U.S. milk-pricing policy propelled their growth. Beginning with the Reagan administration, the government began setting milk prices based on the price of cheese traded on the Chicago Mercantile Exchange, so prices fluctuated more than before. Dairymen hedged against price drops by buying more cows and producing more milk. Their fixed costs stayed relatively constant, and they had more milk to sell as a cushion against low prices. When neighboring dairies went under, surviving ones bought up their cows. In 1970, there were almost 650,000 dairies in the United States. Today, there are only 62,500; almost 50 percent of U.S. milk now comes from dairies with more than 1,000 cows. New Mexico, whose dairies average 2,000 cows each, has the largest mean herd size in the nation.

As dairies added cows, the cows added manure. That manure–145 pounds of mixed solids and liquid per cow per day–is usually flushed into a holding pond, or manure lagoon. Dairy owners often spray manure water onto cornfields as fertilizer and separate out the solids for compost. In theory, using waste to grow feed makes a dairy a closed-loop system.

In practice, the loop leaks. Farmers have more manure than crops to apply it to. Manure liquid can ooze from lagoons into groundwater, carrying nitrates, sulfate and chloride, along with remnant antibiotics and dangerous bacteria such as E. coli, salmonella, listeria and campylobacter.

“A lot of people still think of a dairy farm as black-and-white cows on a green hillside somewhere. And we still have that, but that’s not (how) the majority of milk (is) produced anymore,” says Mark Stephenson, director of dairy policy analysis at the University of Wisconsin’s college of agriculture.

The pollutant most regulators focus on is nitrate. At high levels in drinking water, nitrate can cause methemoglobinemia, or blue baby syndrome, where nitrogen compounds interfere with the blood’s ability to carry oxygen. Formula-fed infants are particularly susceptible. Possible effects of chronic high nitrate exposure on adults include cancer, reproductive problems and diabetes, although researchers say more study is needed.

Nitrate is not necessarily the most dangerous substance given off by Concentrated Animal Feeding Operations, or CAFOs. But it is one of the few manure pollutants the government has the authority to regulate. The federal Safe Drinking Water Act limits nitrate concentration to 10 parts per million. That law, which applies to all drinking water systems serving more than 25 people, and the Clean Water Act, which regulates water quality for pollutants like phosphorous, nitrates and E. coli in surface water, are the main tools regulators can use to curb pollution from factory farms; the majority of air and water contaminants produced by CAFOs are not federally limited.

States can go beyond federal law to curb CAFO pollution, however. New Mexico, for example, has a water-quality act that protects groundwater and stipulates that all facilities whose waste may end up in groundwater–including dairies–must get discharge permits.

Kathy Martin, an engineer from Oklahoma, has consulted for over 15 years on technical aspects of rulemaking in 20 states, including Kansas, Colorado, Nebraska and New Mexico. She’s watched residents protest against odor and flies; worry about CAFO-caused air pollution, a major health problem that is virtually unregulated; and fight to protect their drinking water. In her opinion, none of the states where she has worked has adequate rules to protect the health of dairy neighbors and the environment. “Industry almost invariably gets their way,” she says. “Very rarely do the citizens get their way even on one or two points. We’re just there to keep the dam from completely falling apart.”

Because of New Mexico’s water-quality act, the state has been monitoring pollution from dairies since about 1980, shortly after the first of several California dairies moved to a depopulated stretch of U.S. Route 80, now Interstate 10, between Las Cruces and the Texas border. Today, over a dozen dairies and tens of thousands of cows crush together along a 10-mile stretch of highway here that locals call Dairy Row.

In areas around Dairy Row, nitrate levels in drinking water exceed safety standards, and many people purchase bottled water. In 2007, the federal Environmental Protection Agency accused 11 local dairies of violating the Clean Water Act by not keeping proper records on waste management and disposal, and ordered them to comply immediately.

Martin sees better regulations as an issue of fairness, particularly for the rural and low-income areas where such facilities tend to locate. “If I find out that the mozzarella cheese in my pizza comes from a facility that has destroyed the groundwater for fifth- and sixth-generation Hispanics in New Mexico, it makes me sick to my stomach. … I thinkat the end of the day, everyone would like to go to bed knowing that there isn’t one person suffering, or child ill, because I had a Big Mac today.”

Jerry Nivens

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.

Jerry Nivens already knew what keeping so many animals in one place could do. Years ago in Texas, he’d lived near giant beef feedlots in the Panhandle and around dairies near Waco, where he’d seen rivers polluted and towns filled with the stench of untreated manure. (In 2004, Waco sued 14 dairies for polluting the town’s drinking water.) Thinking about ParaSol, he says, “I couldn’t hardly sleep at night. Things like this are such a destruction to the surrounding area and the environment, you know, they create a sacrifice zone.”

He called the state’s Environment Department and learned that officials, who had never denied a permit before, did not plan to do so with ParaSol. In New Mexico, however, the environment secretary must sign off on all such permits. This gave Nivens, who had organized a group called Caballo Concerned Citizens and allied with the Rio Grande chapter of the Sierra Club, a wedge. Members sent more than 400 letters to the agency and visited New Mexico Environment Secretary Ron Curry, a Bill Richardson appointee, in person, asking him to say no to ParaSol.
And in February 2008, Curry did.

Nivens was ecstatic. He had no way of knowing this was just the beginning of a nearly four-year fight.

ParaSol immediately hired Pete Domenici Jr., a powerful lawyer and son of a former U.S. senator from New Mexico, and appealed the decision. Dairy owners formed a lobbying organization called Dairy Industry Group for a Clean Environment, backed by the national Dairy Farmers of America. By early 2009, the group, whose lobbyists included former Lt. Gov. Walter Bradley, had pushed the Legislature to amend the state’s water-quality act to require the Environment Department to create a new, standardized permit process. The dairy owners were betting it would work in their favor.

“The environment at that time was one of constant change (for dairy permits),” says New Mexico state Sen. Clinton Harden, R, who sponsored the legislation amending the act. That uncertainty made it hard for new dairies to start up and existing ones to expand, he says. During that time, at least three dairies–important employers and economic engines in his eastern district–had moved to Texas, which had “a known permit process.”

But the dairymen hadn’t counted on Bill Olson. Olson, a hydrologist and 25-year veteran of the Environment Department, was the chief of New Mexico’s groundwater division. He exudes the patience and practicality of your ninth-grade chemistry teacher, but with a Western flair: The day I met him at a Santa Fe bakery, he was wearing cowboy boots, jeans, a pearl-button shirt and a bolo tie.

“Ninety percent of all our drinking water in the state comes from groundwater,” he explained. Though he would retire almost as soon as the process was over, he viewed the rulemaking as a chance to “prevent pollution and protect the resource.”

Olson’s department drafted a preliminary rule with two key requirements. To get a permit, dairies would have to install monitoring wells upstream and downstream of their manure lagoons. They’d also have to install high-density polyethylene synthetic liners.

The latter are much more effective at containing pollutants than traditional clay liners. And the wells would let the Environment Department know if groundwater was becoming contaminated. Because wells would be located both above and below lagoons, they’d help regulators triangulate on the source of any contamination. Most states don’t directly track dairy waste this way. Regulators may believe a dairy has contaminated groundwater, but without a way to pinpoint the source, blame–and responsibility for cleanup–often gets passed around.

Starting in May 2009, the New Mexico Environment Department held meetings to get public comment on the draft rule. Angry dairy owners boycotted. But Jerry Nivens had spent months creating an activist network, meeting with grandmothers from Dairy Row whose children couldn’t play outdoors because of flies, and a mom from the faraway town of Hobbs who blamed her kids’ illnesses on high levels of nitrates in her drinking water. Nivens organized these people and allies from his earlier efforts under the name New Mexicans for Dairy Reform and formed alliances with a local water protection nonprofit called Amigos Bravos, as well as the national consumer advocacy group Food and Water Watch. The New Mexico Environmental Law Center, a nonprofit law firm specializing in environmental justice issues, represented the group during the rulemaking.

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.”

Parasol Subdivision

ParaSol Dairy’s plans appear to have been abandoned — the proposed site now displays a sign for a residential subdivision. By Jerry Nivens.

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 article was produced in collaboration with High Country News, an independent, nonprofit magazine covering environment and natural resources issues in the American West. It first appeared in the November 28th issue.

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