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Appellate Court overturns 2007 dairy ruling

Appellate Court overturns 2007 dairy ruling

California’s ailing dairy industry took another last week following a ruling brought in part by a Visalia-based non-profit.

In a precedential ruling, Sacramento’s Third District Court of Appeal overturned last week a controversial Order that implemented regulations for 1,600 Central Valley dairies, because it failed to either stop practices that have polluted the region’s groundwater for decades, or monitor continuing pollution sources from the dairies.

While the Regional Water Board and dairy operators lauded the 2007 Order for its “unprecedented” environmental controls, the Appellate Court ruled that actually the Order failed to adequately protect groundwater at every step of its analysis.

Each of the Central Valley’s 1600 dairies generate thousands to millions of pounds of manure and urine every day. The pollution leaches into the region’s groundwater, which supplies drinking water for 90% of the communities in the Central Valley. Nitrate contamination of their drinking water is a daily concern for residents like Maria Elena Orozco, member of Asociación de Gente Unida por el Agua (AGUA), who opposed the 2007 Order.

Ms. Orozco states, “We work hard to provide for our families. In addition to having to buy bottled water, we pay monthly water bills for water we can’t drink.”

“The Court’s ruling is a huge victory,” said Laurel Firestone, attorney for the Visalia-basd Community Water Center, representing AGUA.

“Water quality regulators claim that better-than-nothing is good enough. The Court sent a message that this is no longer business as usual.”

But the ruling will have broad implications outside of groundwater and beyond the Central Valley and its dairies. It will potentially affect most every water pollution permit issued in California.

The 50 page opinion requires that rules adopted in 1968 to prevent continued pollution of the state’s waters finally be implemented by the Regional Water Boards. The law is known as the anti-degradation provision of the federal Clean Water Act and California’s Porter-Cologne Act (Resolution 68-16). Regional Boards do little more than 2 pay lip-service to this enforceable law. Like other water permits, rather than analyze whether “degradation” of water will occur and then analyze means to minimize it, the 2007 dairies” Order simply included an unsupported statement no degradation will result. The basis was simply that, although the same operations have demonstrably polluted groundwater for decades will continue unabated, degradation will not occur because the Order does not allow it.

The Court characterized the Order’s “circular” analysis and its insufficiencies to protect groundwater. The Court added that “The wish is not father to the action.”

Moreover, the Court’s ruling made clear that Regional Boards must apply the rules to all permits for waters to protect the best quality of the waters at any time since 1968, when the rule was adopted. Moreover, the court’s ruling is not limited to the Central Valley nor to groundwater, and will also apply to new or renewed permits not only for groundwater but also permits that allow pollution into surface water such as streams, rivers, and lakes.

The state’s water boards will have to include specific factual findings to establish that the highest quality waters will be maintained unless the Board can ensure that any allowed degradation is both reasonable and has been avoided or reduced to the extent practicable. The 1968 anti-degradation policy does not necessarily prohibit all pollution, but it does require that water boards be deliberate and transparent about issuing any permit that will allow degradation of water, and supply detailed factual and technical bases, and limit the pollution as much as possible, before allowing any degradation of water quality.

The nonprofit groups that brought the case called it “a complete victory for the people of the Central Valley. The water board will now be required to start over, and this time try to protect the water, not the polluters.

“For too long the dairies – some as large as 10,000 cows – have spilled untreated manure and urine into ponds and used the groundwater of the state as their personal sewer. Regional Boards have only looked at the cost to businesses when determining if stricter controls should apply. The cost of allowing pollution was not considered.

“A business model that depends upon polluting everyone’s water is no longer a business model that the law allows,” said James Wheaton, President of ELF.

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