Senators,

I.C.A.R.E. urges you to vote NO on Senate Bill 1346.

1346 poses serious threats to the state’s surface and ground water quality, public health,
and to transparency and accountability in state government.

I. 1346 Hands sole authority to administer water quality laws at Beef CAFOs to
ISDA. This is a bad idea; it will have serious consequences for the quality of the
state’s natural resources and state of public health in CAFO-heavy areas.

1346 hands policing authority with regard to water quality at Beef CAFOs over to ISDA
—the very agency on whose watch feedlots became the state’s second-leading cause of
water contamination. Under the now-defunct Beef MOU between ISDA, EPA, DEQ and
industry, ISDA had the opportunity to show that it could both promote Idaho’s CAFOs
and keep CAFO operators in compliance with state and federal water quality protection
laws. As Idaho’s 2008 Water Quality Assessment Report shows, ISDA failed miserably.1
Given that ISDA has consistently failed to protect water quality at and around CAFOs the
legislature can have no reason to believe that ISDA will behave any differently now.

Senator Corder has attempted assuage the concerns of those skeptical of ISDA’s
willingness and ability to adequately police Beef CAFOs by way of a newly added
“declaration of policy and statement of legislative intent” (pgs 1-2). Though this new
section makes clear that the chapter is “intended to ensure that manure and process
wastewater associated with beef cattle operations are handled in a manner which protects
the natural resources of the state,” there is still nothing in 1346 that would in practice
prohibit ISDA from continuing to abuse existing loopholes in “applicable state and
federal laws” (pg 1, lines 23-26).

In fact, there are several large loopholes in existing “applicable state and federal laws”
—such as a caveat in the state’s ground water quality rule that some contamination may
be allowable for facilities acting in accordance “with a permit, consent order or
applicable best management practice, best available method or best
practical method”— that make Senator Corder’s well-intentioned efforts less than
comforting (1346 pg 1, line 36; DEQ Ground Water Quality Rule 400.01.c, pg. 13, my
emphasis;).2 The language of this section also assumes that existing state and federal
1
According to the Report, Idaho’s CAFOs are the second leading cause of water pollution in the state. See:
http://iaspub.epa.gov/waters10/attains_index.control?p_area=ID. A more detailed exploration of ISDA’s
CAFO enforcement failures can be found starting on page 5 of this document:
http://www.scribd.com/doc/27232941/ICARE-Comments-on-1213-and-1223
2
While the original intent of this caveat was no doubt to ease the burden on farmers doing their best to be
good stewards who inadvertently impact ground water quality—say through the application of commercial
fertilizer—in practice, the exemption has had the effect of sanctioning blatant pollution by CAFOs.
Operating with ISDA’s blessing under the label of “best management practices” CAFO lagoons are
allowed to leach 1,000 gallons of untreated effluent per acre per day, without concern for the relative
vulnerability of surrounding ground water to contamination; CAFO nutrient management plans utilize 15-
year-old ASAE manure generation values for phosphorous that are themselves based on 30-year-old data
(this is in contrast to small producers, whose nutrient management plans, composed with assistance from
water quality laws are adequate to protect public health—an assumption that is
demonstrably false.3

While DEQ’s statutory mandate to consider the public health implications of its
enforcement efforts (or lack thereof) put a natural, common sense check on the applicable
scope of these loopholes, ISDA has no such corresponding mandate. ISDA’s primary job
is to promote Idaho’s agricultural industries—a job to which public health takes a back
seat. To hand over enforcement of water quality laws at Beef CAFOs solely to ISDA,
without requiring at least input from or consultation with DEQ would be incredibly
irresponsible.

II. 1346 classifies nutrient management plans (NMPs) as “trade secrets” at the
expense of transparency and accountability in state government, public health and
safety, local control, and public and private property rights.

Since nutrient management plans are supposed to protect CAFO neighbors and
communities from CAFO-caused air and water pollution as well as help operators utilize
the nutrients their animals produce in an agronomically correct way, this kind of
exemption could only be justified if Nutrient Management Plans were proven successful
at achieving these goals—something past and present problems with NMPs proves is
little more than a pipe dream.4
• Beyond frequently identified unintentional human error, the NMPs prepared by
ISDA for CAFOs deliberately utilize manure generation values for

USDA, utilize the 2005 ASAE values); CAFO operators have been known to exploit the unregulated status
of “third-party” waste application to allow the routine over-application of waste on nearby fields, thereby
facilitating the transport of nitrogen and other contaminants to ground water. See: Letter from Dr. Ron
Sheffield to Owyhee County Planning and Zoning Administrator Mary Huff, July 18, 2007 (available
online at: http://www.scribd.com/doc/25446833/ICARE-draft-NPDES-CAFO-permit-comments-
Appendix-B); and February 2004 ASAE 393.3 Manure Storages guidelines (available online at:
http://www.scribd.com/doc/24777788/ASAE-EP393-3-Feb-04).
3
For example: Even though three separate DEQ reports released just this past year note that CAFOs have
polluted groundwater in Washington, Gooding, and Cassia Counties with livestock-only antibiotics, steroid
hormones and nitrates, the presence of these substances will not necessarily trigger an enforcement action.
This is because livestock-only antibiotics and steroid hormones are not classified as “pollutants of concern”
under the Clean Water Act or under state rules. Nitrates are classified as pollutants of concern, and
evidence that nitrates are coming from a CAFO can trigger an enforcement action, but once again, ISDA
chooses to construe the ground water quality rule in such a way as to make that highly unlikely: it is
ISDA’s admitted policy to only pursue enforcement action against CAFOs that are the “sole source” of a
nitrate contamination problem; CAFOs that are “significant contributors,” but not the “sole source” are
highly unlikely to be held accountable for their contribution to the problem. Because of this policy, nitrate
levels at one industrial dairy in Marsing have been allowed to reach as high as 170 ppm with nothing being
done to stop the contamination. I highly doubt that anyone reading this would be willing to concede that
drinking water which is a brew of antibiotics, hormones, and nitrates is completely “safe” to drink and
bathe in day-in and day-out, but according to a strict reading of “applicable state and federal laws” it is.
4
Among other errors, neighbors of the now defunct Sunnyside Feedlot in Washington County found that
the facility’s NMP wrongly stated that it was “not within a nitrate priority area”
(http://www.scribd.com/doc/27485917/Sunnyside-Feedlot-Neighbor-to-NRCS-August-21-2005). In 2007,
several years after the launch of the Idaho OnePlan, NRCS identified and corrected certain “inherent
errors” in the program (NRCS Agronomy Tech Note No. 22; available online at: ftp://ftp-
fc.sc.egov.usda.gov/ID/technical/technotes/agronomy/agronomy_tn22.pdf).
 Phosphorous (based on 30-year old data) that are half as large as they should
actually be.5

CAFO neighbors and neighbors of third-party waste contractors need to be able to protect
the water they use for drinking, irrigation and recreation from CAFO contamination. By
not allowing neighbors of proposed feedlots to access the NMPs of proposed facilities,
this amendment limits their ability to assess the potential impact of those facilities, which
in turn severely limits their ability to petition their government for redress of grievances
as well as the ability to protect their property and safeguard their and their families’
health.

1346’s classification of NMPs as “trade secrets” effectively undermines the ability of

local governments to make reasoned, standards-based decisions to either approve or deny
CAFO permit requests as required by law (Idaho Code 67-6519(4a)).

It is one thing to exempt nutrient management plans from public records requests; it is
another thing entirely to exempt “all information generated by the beef cattle feeding
operation as a result of such plan” (pg 2, lines 20-21, my emphasis).6 Given that the
Idaho Cattle Association, despite its intense lobbying on behalf of this bill, has failed to
demonstrate how or in what way the broad range of ephemeral, non-specified
“information” referred to by this phrase fits the meaning of “trade secrets,” “production
records,” or “proprietary information” identified by Idaho’s public records act, a vote in
favor of this bill would constitute a severe breach of the public trust and a violation of the
principles of open government.7

For these reasons, I.C.A.R.E. and its members ask you to vote NO on 1346.

Sincerely,

Alma Hasse
5
See: Dr. Ron Sheffield to Owyhee County Planning and Zoning Administrator Mary Huff, July 18, 2007.
Available at: http://www.scribd.com/doc/25446833/ICARE-draft-NPDES-CAFO-permit-comments-
Appendix-B
6
While it is true that this language at least ensures that inspection reports and similar materials generated
by state enforcement agencies will continue to be public record, the awkward wording of the phrase makes
it unclear whether water testing data and things of a similar nature will continue to be public or not.
7
Idaho’s public records law defines “trade secrets” as: “information, including a formula, pattern,
compilation, program, computer program, device, method, technique, process, or unpublished or in
progress research that: (a) Derives independent economic value, actual or potential, from not being
generally known to, and not being readily ascertainable by proper means by other persons who can obtain
economic value from its disclosure or use; and (b) Is the subject of efforts that are reasonable under the
circumstances to maintain its secrecy.” (Idaho Code 9-340D(1)). The law does not define “production
records,” but in the context of the exemption as a whole it is clear that these refer to financial records
pertaining to housing or commercial real estate (Idaho Code 9-340 D(2)). The word “proprietary” only
appears once in the list of exemptions, and refers specifically to proprietary (i.e. patented) varieties of
seeds. Given this very specific usage, unless Idaho’s beef CAFOs intend on patenting their cows’ manure,
applying the term “proprietary” to nutrient management plans and “all information generated as a result of
such plan” would be absurd (Idaho Code 9-340D(9)).
Executive Director
I.C.A.R.E. – Idaho Concerned
Area Residents for the Environment
Post Office Box 922
Fuitland, ID 83619-0922
208-695-1556