Congress, follow California’s lead: Keep manure out of drinking water

Lawmakers in California have just abandoned a dangerous bill that would have wiped away a critical tool rural Americans can use to protect their drinking water, and their families’ health. Now, federal lawmakers must do the same. 

Most of us can probably agree that many of America’s farmers are “good neighbors.” But when corporations are growing food on a massive, industrial scale, bad practices – particularly surrounding manure – can often mean serious harm to the nearby community. About 15 million Americans living near farms could be stuck with undrinkable backyard water wells and no way to sue their polluters if new legislation isn’t blocked.

{mosads}In rural areas where these communities are located, a large portion of the residents rely on private wells for their water. Bad manure management and land application systems can be particularly dangerous to groundwater because the manure can leach through soil. Nitrates found in manure can help plants grow, but too much nitrate can also make people sick.

When nitrates are in your water, you can’t see them, smell them, or boil them out. And because there is no requirement that the government monitor or treat private wells, nitrates can hide there without anyone knowing. Even at low levels, nitrate can kill infants and harm unborn children – just 10 milligrams of nitrate per liter of water can, when unknowingly used to make formula to feed an infant, cause blue baby syndrome.

Unfortunately, rural residents have very little recourse when an industry – agricultural or not – contaminates their groundwater. The Clean Water Act only protects navigable water, and no one is taking a boat down an aquifer. The Safe Drinking Water Act also does not apply to private wells, leaving only two avenues for citizens to protect themselves: a complex statute called the Resource Conservation and Recovery Act (RCRA), designed as a protection against pollution that falls through other regulatory cracks, but nonetheless endangers public health and the environment. Or, secondly, classic common law tort cases, such as nuisance and trespass suits, which are made more difficult by the right-to-farm laws that have been passed in almost every state.

Not surprisingly, the industrial animal agriculture lobby is out to destroy both, and take away the only two tools rural Americans have to protect their drinking water, with a new bill in Congress designed to exempt all agriculture from having to comply with RCRA.

The bill, HR 848, is a direct response to a lawsuit filed against a number of mega dairies by a coalition of firms and nonprofits, including Public Justice, over massive nitrate contamination of a drinking water aquifer. The lawsuit used RCRA to force the dairies to change the way they operate, so they would no longer contaminate the aquifer.

Rep. Dan Newhouse (R-Wash.) introduced the bill soon after the lawsuit was settled. He also represents the district where the mega dairies were located. We know Newhouse’s bill is a direct response to our lawsuit because it specifically says so in the text of the bill. The co-sponsors of the legislation received a staggering combined $5.2 million in donations from agriculture groups in 2015 and 2016. It makes one wonder how many donations they received from constituents with polluted drinking water.

But facts, when brought to light, can be even more compelling than dollars. And in this case, the facts are so undeniable that state legislators are beginning to turn away Big Ag lobbyists.

California Assembly Bill 1605, a measure literally sponsored by the Farm Bureau, would have killed citizens’ ability to sue polluters under nuisance, trespass, or negligence laws for making the water in their well water unsafe to drink with high nitrate levels so long as polluters provide replacement water. 

You read that right: The Farm Bureau wrote a bill to shield water polluters from liability for polluting water with something that can’t be detected by your senses and can harm infants. By the Farm Bureau’s logic, they can pollute your water, so long as they contribute to a fund to buy bottled water, and you can’t hold them legally responsible for it.

Much like the worrisome source of bill in Congress, the California legislation looks suspiciously like a response to a lawsuit involving Public Justice, against a now-closed mega dairy for that dairy’s alleged nitrate contamination. The suit showed lawmakers why this put their rural constituents in serious danger while doing nothing to protect anyone other than corporate bad actors. 

The California Assembly’s Environmental Safety and Toxic Materials Committee agreed and pulled the bill, sending a strong message about the potential dangers of limiting rural Americans’ ability to fight back against contaminated drinking water. Thankfully, the 2 million California residents reliant on private well water can still hold industry accountable.­

Despite the victory in California, however, there are more than 15 million other households in America that rely on private wells and who stand to lose out if similar legislation passes Congress. It’s time for the House Energy and Commerce Subcommittee on Environment and the Economy Committee to follow California’s lead and put rural Americans’ access to clean drinking water above corporate profits. Big Ag lobbyists shouldn’t be able to buy immunity while poisoning America’s drinking water.

Paul Bland is executive director of Public Justice, a national public interest law firm that pursues high-impact lawsuits to combat social and economic injustice, protect the Earth’s sustainability and challenge predatory corporate conduct and government abuses. Find him on Twitter @FPBland. This post was co-authored by Public Justice Food Project Attorney Jessica Culpepper. Follow her @JessCulpepper.

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