Dairy Kings? 

“It is rare and strange and ultimately inappropriate for a regulated entity to have a Memorandum of Understanding with the regulator.”

The Idaho Department of Environmental Quality and the Idaho Dairymen's Association recently entered into an agreement that strengthens the dairy industry's involvement with DEQ research, and is a heads-up on monitoring that's coming down the pipeline.

The IDA says the Memorandum of Understanding simply keeps the lines of communication open between the two organizations and helps ensure the sharing of objective scientific research so the dairymen can reduce their environmental impact. But environmental watchdogs say the agreement reeks of bias that could open the doors for unscientific research. They say that a regulating agency shouldn't' keep such close ties with the entities they are regulating and that the agreement illustrates the powerful influence of dairymen in Idaho.

"The public should be very concerned," family farmer and citizen activist Alma Hasse said of the MOU.

"I equate this to the separation of church and state. There is a reason these two entities are separate. And for the exact same reason, the regulators and industry should be separate. The MOU is an agreement from the DEQ to hop into bed with industry," Hasse said.

The agreement outlines a working relationship between the IDEQ and IDA that calls for the sharing of "information, data and analysis regarding environmental conditions that may relate to the environmental impacts of dairy farms," and aims to "foster cooperation between IDEQ and the Idaho Dairymen's Association regarding environmental information that is collected or prepared by IDEQ."

By signing on to the November 2012 memo, the IDEQ agreed to share information about current and upcoming research and monitoring, bi-annual closed door meetings with the IDA, and at the request of the IDA, "revise the content, analysis and conclusions contained in environmental information it develops, or modify its use of environmental information it acquires, as IDEQ deems necessary to improve its quality, accuracy use or interpretation."

Idaho Department of Environmental Quality and IDA officials say the agreement helps ensure the efficacy, accuracy and objectivity of environmental research and offers dairymen access and comment to the same kind of information the public could request. But watchdogs say the memo offers the IDA backdoor privileges that citizens must regularly fight for and a veil of secrecy that could obstruct government transparency.

"Why is this industry being treated differently than other regulated industries in the state?" Courtney Washburn, Idaho Conservation League community conservation director, asked. "It calls into question why [the agreement] would be necessary and why the state took the added steps to enter into the agreement."

"The dairymen approached the DEQ about entering into an MOU, so we decided to explore that," said Barry Burnell, DEQ water quality division administrator. "They're interested in the environmental data and analysis that the DEQ gathers and collects as it relates to Idaho dairy farms."

Some say that equates to special treatment.

"Most MOUs are between agencies and departments. They are not between regulated communities, industries or nonprofits, or anyone else, for that matter," Washburn said.

Bob Naerebout, Idaho Dairymen's Association executive director, said that the agreement helps keep an open line of communication between the IDA and DEQ so that research is not duplicated and the IDA can plan effective use of its own research dollars. While the IDA can offer recommendations and suggest revision, "the DEQ has the ultimate authority," Naerebout said.

He said the working relationship also ensures that DEQ gets input from outside parties to ensure the objectivity of research findings. He used the example of an upcoming joint nitrate study that IDA weighed in on, including the suggested involvement of the U.S. Department of Agriculture to ensure scientific objectivity.

"We invest a lot of research dollars in environmental research so that we can look at ways to reduce our environmental impact," Naerebout said.

The Environmental Protection Agency used to enter into MOUs with the IDA and, until three years ago, had a similar agreement with the dairymen. But after an internal legal review of the contracts, the EPA ended that practice.

"It would limit our authority to regulate and do inspections," Nick Peak, EPA Confined Animal Feeding Operation administrator, said of binding agreements between the EPA and industry.

"As far as we're concerned, it is inappropriate," Washburn said of the November MOU. "It is rare and strange and ultimately inappropriate for a regulated entity to have a Memorandum of Understanding with the regulator. The dairy industry is getting special treatment that is vastly different from other industries in the state."

Typically, regulating agencies follow procedures that allow citizens and interested parties to review and comment on proposals and research findings in an open forum or through statements that become part of the public record.

Burnell said the MOU gives the IDA exclusive access to DEQ information that would otherwise be accessible to everyone through a public records request. Brunell said it also gives the dairy industry a heads-up on monitoring and research that's coming down the pipeline and offers the IDA two closed-door meetings each year to discuss research and suggest revisions.

Those closed doors could blind citizens, obstruct transparency and privilege interests, some observers say. And when the DEQ agrees to give industry a heads-up on monitoring and research, environmentalists say potential polluters could change their practices, even temporarily, so that DEQ findings don't match reality and pollution goes undetected.

"It would give the producers the opportunity to right the situation," Hasse said. "Where is the consumer protection in this? There is none. The only protection that is in there is for the producers, not the citizens of Idaho."

"If you care about open government, it's disconcerting on several levels," Washburn said. "What makes the memorandum inappropriate is it would make it very difficult for a member of the public to see what the impact of an agreement like this would be. ... This makes it much more difficult for the public to track what's happening."

Hasse began tracking dairy monitoring when she and her husband bought their dream property near Parma, only to discover their farm sat downwind from a malodorous CAFO. She said she discovered tight ties between regulators and producers and needed an attorney to access public records. She points to a 2003 letter from the Idaho Cattlemen's Association to DEQ officials as an example of what industry involvement in DEQ monitoring and research has and could look like.

EDITOR'S NOTE: YOU CAN READ THE FULL MEMOS HERE: DEQ_Letters.pdf

In the letter, the ICA writes that proposed dairy monitoring "causes a great deal of concern on the part of the cattle industry," and questions the necessity of monitoring, DEQ testing methodology and agency decisions, then urges the DEQ to hold off on plans to set up monitors. The DEQ responds to the ICA, writing, "This is to let you know that the DEQ is going to start particulate monitoring in the Sunnyside area in about two weeks' time." The monitoring eventually took place, but Hasse said it was never to the degree requested by concerned citizens.

Hasse said the November DEQ and IDA agreement opens the doors for similar industry oversight and influence.

"The DEQ can't do anything without notifying industry," Hasse said.

Marvel couldn't agree more.

"This is a good example of what happens in one-party states like Idaho, where there's no review of state agencies, there's no oversight and the industry that is favored by the majority party gets what they want in virtually all outcomes. And the majority party does not believe in the regulation of industry of any kind," said Jon Marvel, Western Watersheds Project executive director. "This is typical of Idaho, where money talks. Dairy production is the largest agricultural product of Idaho now. As a consequence, dairy producers have a lot of clout with the state government and the Legislature."

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