Political Intelligence

Justice, Baytown Style


Carolyn Smith has lived all of her 65 years on this serene swath of rural Comanche County, where Farm Road 2486 crosses a dirt track known as County Route 240, four miles outside the tiny hamlet of Gustine. Austin lies 140 miles to the southeast and seems much further away than that. “My father used to butcher hogs in that tree,” Smith says, leading me across her yard. It’s a hot June day, and we’re walking to the South Leon River, a lazy stream that skirts her land and is part of a brewing controversy over dairy manure pollution in Central Texas, the health of drinking water for 250,000 residents of Temple, Killeen, and Belton, and whether the state environmental agency is not only violating a directive from the Environmental Protection Agency, but also breaking federal law.

Smith and her husband Paul own about 600 acres here, some of it leased to others, the rest used for light farming and for their 60 pair of cattle. We step across the road and descend a flaky hillside toward the river, Smith’s smooth-bottomed shoes slipping on the dry dirt. She’s generally soft-spoken but makes the most of her direct, punchy sentences. When she was young, Smith says, she would come here to swim. Years later, her son loved to fish near this spot, back when the river still had fish. “That’s where we used to do the baptisms,” she says, pointing to a small inlet 50 yards upstream. Now, she explains, no one goes in this water. “My cows won’t even drink out of it,” she says. Smith believes two industrial dairies upstream are mostly responsible for polluting the river. It’s clear this is her snippet of the world, and she aims to protect it.

To that end, Smith has joined a coalition of local landowners, environmental groups, and city officials, who are fighting the expansion of Wildcat Dairy, a mile upstream from her land. On March 20, the Texas Natural Resource Conservation Commission (TNRCC) approved Wildcat Dairy’s permit application to grow from 990 cows to 4,000–all of which would normally be unremarkable except that, environmentalists say, it’s illegal.

The dairy industry is as much a part of Central Texas history as cattle drives–it has always been part of the landscape. The current Wildcat Dairy site, Smith remembers, was a dairy when she was growing up. It was family-owned and delivered milk in galvanized metal cans. Her husband even hauled milk in high school, she says, laughing. But dairies back then were small. Beginning in the 1970s, the dairy industry, especially in Texas, turned a corner. Small, provincial farms morphed into sprawling, agribusiness corporations, part of a national trend toward fewer and larger dairies. In 1934, the U.S. had roughly 3.4 million dairies, each with an average 5.4 cows, according to U.S. Department of Agriculture figures. By 1987, the number of dairies had shrunk to 202,000, but the average number of cows had risen to 51 per dairy.

Nowhere is that trend more evident than in Central Texas. A huge influx of large, industrial dairies to Erath and Comanche counties in the 1980s and early 1990s led to soaring milk sales and made the region one of the nation’s most prolific milk-producing areas. Many of the newcomers were of Dutch origin. Some were refugees from Cali-fornia’s Chino Valley, where the state began cracking down on dairy pollution; others came directly from the Nether-lands. Driving through Erath and Co-manche counties, you can see the Dutch influence in dairy names such as Vanden Berge, Vander Horst, and Oosten.

The influx also brought a lot of dung. Each dairy cow produces three to four pounds of the stuff each day. In industrial dairies, manure is normally disposed of in large, water-filled lagoons. Sludge from the lagoons is then spread over adjacent pastureland as fertilizer. With hundreds of dairies and thousands of cows entering Central Texas, milk producers soon had more manure than they could handle, and dung began seeping into waterways. Pollution first surfaced in the Bosque River, the Leon’s more infamous sister river to the east. The EPA designated the Bosque as impaired, or severely polluted, in 1991. The Bosque drains into Lake Waco, the lone drinking water source for Waco, and pollution from the Bosque has forced the city to spend an additional $3.5 million on water treatment since 1995 (although dairy industry representatives note that Lake Waco is not listed as impaired). In the late 1990s, when algae blooms sprouted in Lake Waco and the drinking water began to reek, Waco city leaders went to war with the dairy industry in a controversy the Waco Tribune-Herald dubbed “The Battle of the Bosque.”

By some estimates, the Leon watershed hosts nearly as many dairy cows as the Bosque, and the same pollution problems started brewing along the Leon River, albeit without the publicity. Frank Volleman, a native of Luxembourg, bought Wildcat Dairy nine years ago. Like many local dairymen, he feels his business must grow to survive, and he has steadily built his dairy from a few hundred cows toward the proposed 4,000. He refused to comment for this story, citing pending litigation, and referred questions to Comanche County extension agent Bob Whitney.

Whitney noted Volleman’s clean record–Wildcat Dairy has been cited for just minor record-keeping infractions, according to TNRCC documents. According to Whitney, if indeed the Leon is polluted–and he said he’d like to see more evidence–then everyone in the watershed must share the blame, including small farms and wastewater treatment plants. He also argued that larger dairies are actually cleaner dairies because they can afford the most advanced waste-disposal systems. Whitney warned that making things too strict on dairies would drive off the county’s main economic engine. Some dairies have already fled Erath County for West Texas and New Mexico.

“We’ve iterated from the beginning that this is not about singling out [Wildcat Dairy],” said Justin Taylor, who works on this issue for the Lone Star Chapter of the Sierra Club. “Wildcat Dairy really epitomizes the situation on the Leon.” Environmentalists and landowners have been joined in a loose coalition by the cities of Killeen, Belton, and Temple, who hope to avoid Waco’s fate. They promise to fight dairy expansion, whether it’s Wildcat Dairy or three other dairies that have applied for expansions in the last month.

The Wildcat Dairy permit saga offers a handy primer on how TNRCC has fed dairy growth along the Leon River. After Wildcat’s permit application was submitted, several landowners and environmentalists wrote comments to the TNRCC noting that the dairy rests on the lip of the South Leon River, part of an impaired watershed, and that adding more than 3,000 cows would constitute a new source of pollution.

In the eyes of the TNRCC, however, new cows are not new sources of pollution, because the dairy–at least according to its permit–doesn’t actually discharge waste at all. Environmen-talists say if you believe that, they’ve got a certain British bridge to sell you.

In fact, TNRCC permits allow dairy wastewater to discharge during heavy or “chronic” rain events, which usually means six or seven inches in a day. But it’s not just the occasional hard rain that causes problems. In addition to these legal discharges during heavy rain storms, dairies regularly leak manure waste into the watershed in violation of their permits, critics claim. Waste either seeps out of improperly lined wastewater lagoons or, during normal rains, gets transported by runoff from crop fields already over-saturated with manure waste fertilizer. With hundreds of dairies and thousands of waste-application fields in the region, TNRCC doesn’t have the resources to inspect or punish violators.

Nobody disputes that the South Leon River is part of a crippled watershed. The stream flows into the Leon River, which leads to Lake Belton–the sole drinking water source for the Killeen-Temple-Belton area. And the watershed is dying. In the mid-1990s, the EPA designated a 125-mile chunk of the Leon River as impaired, after finding elevated levels of fecal matter in the water. In its 1994 State of Texas Water Quality Inventory, the TNRCC ranked this Leon River segment, which sits below Proctor Lake and above Lake Belton, as the ninth most polluted water body among the 366 classified statewide–a shockingly high ranking considering many Texans have probably never heard of the Leon River. And that was eight years ago. Numerous studies have labeled dairy runoff as the primary cause of high fecal matter in the Leon, including a 1998 TNRCC report stating that the Leon River’s poor water-quality designation was “attributed to… runoff from dairies.”

Yet the TNRCC continues to allow dairy expansion along the Leon River watershed, despite mounting evidence that the river is suffering and despite the looming threat to Lake Belton’s drinking water. That’s not only environmentally reckless, critics charge, it’s illegal. Their reasoning delves into the complex lexicon of environmental law, but essentially their argument is this: The 1972 Federal Clean Water Act expressly forbids adding pollution to an already-impaired waterway. That means once the Leon was classified as impaired, it became the TNRCC’s job to ensure that pollution got no worse until regulators devised a clean-up plan. (The plan for the Leon must be completed by 2007.)

The EPA Region 6 office in Dallas agrees, at least in part, with that assessment. In a December 21, 1999 memo, the EPA water quality protection division in Dallas instructed TNRCC executive director Jeffrey Saitas not to issue “draft permits for new or expanding dischargers on an impaired [river] segment, and which have the potential to discharge any pollutant which is causing or contributing to the impairment.” The letter says that to ensure no further damage to an impaired river, as required by the Clean Water Act, the state cannot issue permits for new or expanding dairies without EPA review and permission; the TNRCC can only renew existing permits.

Those standards clearly apply to dairies along the Leon River, says Austin environmental attorney Stuart Henry, who is representing a group of landowners in the region. The Leon River is impaired for fecal matter, he says, which expanding dairies clearly have the “potential” to discharge. Henry notes that if Wildcat Dairy, for example, is allowed to expand to 4,000 cows, it would need to build more stalls for the cows, more lagoons to hold manure wastewater, and more crop fields for wastewater fertilizing. That means the next time a “chronic” rain event strikes, Wildcat Dairy could hemorrhage that much more fecal matter into the Leon watershed. “That,” Henry says, “is definitely a new source [of pollution],” exactly what’s forbidden by the Clean Water Act.

Despite the legal questions, TNRCC has granted permits for 30 new or expanding dairies along the impaired chunk of the Leon River since 1999, according to agency records, adding hundreds of thousands of cows to the watershed. For its part, the TNRCC contends that larger dairies aren’t necessarily new sources of pollution. “To make a blanket statement that the Clean Water Act prohibits expansion is simplistic,” says Margaret Hoffman, director for legal services at TNRCC. She says more cows are not legally an expansion of the dairy.

Understanding Hoffman’s reasoning requires another foray into regulatory arcana. TNRCC can issue two types of permits–individual permits or general permits. An individual permit requires a more specific, detailed application and, more importantly, offers the public the chance to contest its approval at a public hearing. General permits are much easier to obtain and are generally granted to operations that, at least on paper, don’t pose much of a threat to the environment. While the state legislature passed a law requiring TNRCC to issue individual permits along the impaired Bosque River, the state still uses the more lenient registration method in the Leon watershed. That’s a crucial distinction, since TNRCC officials argue that the 1999 EPA memo refers only to individual permits. Since Wildcat is applying for a general permit, the argument goes, EPA has no oversight role. In fact, TNRCC isn’t issuing any individual permits along the Leon, so technically, following this reasoning, it’s not disobeying the EPA order at all.

Henry scoffs at that explanation–a ridiculous technicality, he says. No matter what you call it, the result is still the same: new sources of pollution on an impaired river. “They’re trying to do indirectly what they can’t do directly,” he says.

The EPA apparently doesn’t buy TNRCC’s argument, either. Jack Ferguson, chief of the permitting branch for EPA Region 6 in Dallas, refused to comment on the dairy debate for this story. An EPA spokesman cryptically described the agency’s position this way: “After conferring with staff here, our comment to you on the issue of [dairies] and impaired waterways is that we are in discussions with the Texas Natural Resources Conservation Commission over some concerns we have. We are not in a position where we can discuss those yet–at some point in the future, we may or will be.” But a year-end EPA report, written by Ferguson in November 2001 and obtained by the Observer through an open records request, hints at the dispute between the EPA Region 6 office and state officials. “EPA objected to these permits because the facilities, which discharge to impaired waterways… are proposing to expand their operations,” the report states. “EPA’s position is that these draft permits meet the regulatory definition of a new source [of pollution]… and that the TNRCC is required to provide a rationale demonstrating that the proposed permits will not cause or contribute to the impairment.” That statement contradicts TNRCC’s argument that bigger dairies are not new sources of pollution along the Leon.

The essential problem here is that the Clean Water Act, written before agriculture became a large source of pollution, was aimed at chemical plants and refineries. It’s been left to the EPA and state agencies to decide exactly how the law’s outdated language applies to agribusiness. “What’s not clear is what the EPA’s going to do about it,” Henry says. “The bottom line is, I don’t care whether it’s EPA or TNRCC–neither of them can condone new sources on an impaired segment. It’s against the law.”

But not if the law changes. The EPA is in the process of writing stricter regulations for industrial dairies and other agribusiness farms, known in the lingo as Confined Animal Feeding Oper-ations (CAFOs). But the Bush EPA has delayed the implementation of those stricter rules, and with the EPA recently gutting Clean Air Act requirements for power plants, the future of new CAFO rules is in doubt.

After TNRCC issued the Wildcat Dairy permit on March 20, landowners, environmental groups, and attorneys for Temple, Belton, and Killeen all filed motions to overturn the permit, repeating their same arguments for why the expansion would hurt the watershed. The TNRCC’s own Office of Public Interest Council (OPIC) recommended that the agency overturn the permit and instead ask Volleman to apply for an individual permit, which might better suit the area’s fragile environmental makeup. The office also argued that, “With respect to the expansion of any dairies in the impaired Leon River watershed, protective measures beyond those included in a standard registration are necessary to prevent further deterioration of the watershed.” The OPIC also chastised the TNRCC executive director for “not adequately res-pond[ing] to [public] comments.”

None of that mattered. The TNRCC commissioners had until June 14 to overturn the permit, after which time it automatically went into affect. So they simply let the clock run out and gave Wildcat Dairy its registration. Now it’s up to Temple, Belto
, Killeen, and the landowners to chal
enge the permit and the TNRCC in federal court. Henry has already filed one suit on behalf of the landowners, though critics acknowledge that the cities are the only ones with the resources to overturn the permit and others like it through litigation. Waco has already sued to prevent TNRCC from issuing new or expanded permits to dairies along the Bosque River. The case is before the third district Texas Court of Appeals and could answer many of the regulatory disputes hanging over the EPA and TNRCC.

To Carolyn Smith’s mind, it’s all just common sense. She isn’t an expert on environmental regulation or federal law. But she says it’s clear that 4,000 cows are too many for an area the size of Wildcat Dairy on an already-polluted river. “We’re not getting any help from the TNRCC–they appear to be caught between the politicians and doing their jobs,” she says. “The water situation is going to affect everyone. People better make themselves aware of it or we’re going to be in trouble.” She pauses and adds, “We’re already in trouble.”

Dave Mann is a writer living in Austin.