Part 2: Where's the accountability?

SUNNYSIDE -- After several years of bouts with diarrhea, headaches and general listlessness, Marci Ogden began to think the problem might be her well water.

When a sample from her well in 2005 revealed bovine bacteria, her suspicions turned to a settling pond built several years earlier to collect runoff from a nearby cornfield, which was sprayed with liquid manure.

In trying to solve the problem, Ogden embarked on what would become an 18-month odyssey that gave her first-hand experience in government bureaucracy and demonstrated how those responsible for keeping groundwater clean can fail. Public records show that multiple government agencies couldn't -- or wouldn't -- help.

"Nobody took responsibility. I was passed around and passed around," Ogden said.

Ogden, 51, a single mother with a passion for horses and country living, eventually found out her water also tested high for nitrates.

Unlike many other rural Lower Valley residents, Ogden was fortunate in several regards: She knew how to complain long and loudly to government officials, and she had the resources to drill a deeper well at her home. Ogden, a part-time waitress and bookkeeper, and her teenage daughter were able to move to Ellensburg. Their single-story home on five acres just north of Sunnyside is rented out and up for sale.

Such options aren't available to many others in a region beset with the challenges of poverty, language barriers and limited education.

Ogden's efforts did not go unnoticed.

She had fallen into an "awful bureaucratic crack," Bob Raforth, the regional hydrogeologist for the Department of Ecology based in Yakima, wrote in an urgent 2006 memo to his superiors.

Raforth added that her contaminated water was the tip of the iceberg.

"Ms. Ogden's problem is not an isolated occurrence. I think it is important that we keep that in perspective. Addressing her problem in isolation will do nothing for the rest of the wells that have been demonstrated to be contaminated in the Lower Valley."

Nothing has been done by the Ecology Department or any other agency since Raforth wrote the memo nearly three years ago.

Ogden's attempts to get someone to investigate the source of her well pollution began with the Ecology Department on Aug. 25, 2005.

Ecology officials sent her to the state Department of Agriculture because that agency regulates how dairies manage manure. Agriculture's lead inspector, Virginia Prest, investigated the site the next day. She noted that the well was old and had a small hole in the cap, although there was a roof over the wellhead.

But Prest eventually concluded that Ogden's problem was outside the agency's jurisdiction because the source of the contamination couldn't be established.

Even if the source was manure from the settling pond 35 feet from her well, the agency has no enforcement powers beyond the doors of the dairy.

"If a dairy gives manure to a crop farmer, once it leaves the control of the dairyman, it's no longer their responsibility and it's out of our jurisdiction," said Nora Mena, manager of the Livestock Nutrient Management Program at the Agriculture Department.

Prest subsequently asked the Yakima Health District to handle the complaint, but was told it has no jurisdiction over private wells -- only community water systems. Neither does the state Department of Health.

"I didn't know that," Prest recalled in a recent interview.

High-level Ecology Department officials were also unaware that neither local nor state public health officials are required to test small private drinking wells.

They soon found out.

Ogden began calling the Ecology Department again. In December 2005, four months after her initial complaint, her story caught the attention of Tom Tebb, section manager of the water quality program in Yakima. He sent a memo up the agency's chain of command to Jay Manning, the director in Olympia.

"She doesn't feel that it is right that she has to drink contaminated water from her well as a result of a neighbor involved in the dairy or feedlot industry," Tebb wrote. "I tend to agree with her."

Tebb went on to list eight questions the agency should think about, including these two:

* Why is it that we have no direct course of action (between agencies) to resolve this issue for the affected public?

* How can we successfully resolve this issue so that some other person doesn't have to work so hard to get something done about all of this?

The same month, the Ecology Department collected samples from Ogden's well and six others nearby in what was called a "one-time expedited effort to determine whether there was a groundwater contamination with fecal coliform."

Fecal coliform is not the same thing as total coliform, a general test that requires follow-up to find out if the most virulent forms of the bacteria are present.

Ecology's samples showed no evidence of fecal coliform. But that doesn't contradict an earlier finding by Heritage University and the University of Washington School of Public Health that the genes of the bacteria were bovine.

Ogden's water also had nitrate levels of 23 milligrams per liter, more than double the federal limit of 10 milligrams per liter. Three nearby mobile homes also tested high for nitrates.

Ogden remains frustrated that no one ever found the source of her well contamination, which she has taken to mean that others may pollute groundwater with impunity.

"There's no accountability," she said.

But one way to determine the cause of groundwater contamination in the Lower Yakima Valley would be to monitor underground water with test wells.

Such wells could determine whether contamination was from faulty septic systems, manure from leaking lagoons, excessive application of manure to crops, or the use of commercial fertilizer.

In 2004, Ecology Department officials proposed monitoring groundwater as part of a new federally required permit for Concentrated Animal Feeding Operations, or CAFOs, which are livestock operations with more than 700 animals fed in a confined space, not on pasture.

Studies have shown that CAFOs have affected groundwater quality in Washington, the agency noted at the time.

The agency concluded that if monitoring detected contamination, dairies would be required to change their operations to protect groundwater, which is the only available water supply for many rural residents.

But the groundwater monitoring idea was dropped after Agriculture Department officials told their counterparts at Ecology that the industry objected.

Higher-level Ecology officials came around to that point of view, testifying at a hearing last year that the industry didn't want groundwater monitoring.

For example, David Secrist of Moses Lake-based El Oro Cattle -- a sister company to AB Foods Washington Beef Plant in Toppenish -- e-mailed the Agriculture Department saying the industry would be willing to adopt more "best management practices," which he didn't specify, "but no groundwater monitoring."

The industry would have had to pay for groundwater monitoring wells, and persuaded the Ecology Department it would be too onerous. Shallow wells run in the neighborhood of $2,000 each, while deeper ones can reach $10,000.

While the industry was well represented on the "stakeholder committee" that advised the state on the CAFO permit, participation by state environmental groups was, at best, limited. Community activists didn't participate at all.

Helen Reddout, president of CARE (Community Association for Restoration of the Environment) of Granger, said she was invited on the condition that the process end in consensus. But that was unacceptable, said Reddout, who has long battled dairies over manure management.

"We weren't going to be able to say if we disagreed, so there was no point, in our opinion. It was going to be censored anyway," Reddout said.

She added that Seattle-based environmental organizations, like the Washington Environmental Council don't offer any assistance to rural residents living near dairies.

"We've asked them for help, but by and large they have ignored us," Reddout said.

Michael Mayer, legal director of the Washington Environmental Council, said his group was never contacted by CARE, but he also said the council's focus is on the quantity, not the quality, of water.

"The work we do surrounds water quantity issues that facilitate sprawl," Mayer said.

In any case, soil testing -- rather than monitoring groundwater -- will be used under the CAFO permits to track pollution from dairies and feedlots. Dairies already are supposed to test their soil, so there will be no additional cost when the permit eventually takes effect. The U.S. Environmental Protection Agency is still working on final regulations, which will then be adopted by the states.

Experts debate the effectiveness of soil versus groundwater monitoring. Robert Stevens, a soil scientist at Washington State University's research center in Prosser, said soil testing is valuable because it can show whether there is too much nitrate before it enters the groundwater.

"Soil testing is a more practical way to predict problems because by the time the problem gets into the groundwater, there's nothing you can do about it," Stevens said.

But Thomas Harter, a groundwater hydrologist with the University of California, Davis, said soil sampling is limited.

"I'm a little biased against soil sampling because they're looking at what nutrients are available to the plant, not the amount that's gone down below the root zone into the groundwater," he said.

Harter said even if a soil sample shows normal nitrate levels, it doesn't mean it hasn't penetrated into the aquifer. But he acknowledges the cost limitations of wide-scale groundwater monitoring, which is done in California only at dairies with a history of problems.

The Ogden case prompted a brief inter-agency effort to find a way to address the Lower Valley's groundwater problem.

Mena, the nutrient program manager at the Agriculture Department, wanted to lead that joint effort with the Ecology Department and local and state health officials. In a January 2006 memo to then-Agriculture Director Valoria Loveland, Mena asked for time for the special assignment.

She anticipated Loveland's resistance.

"I realize that this issue is groundwater which is/will remain Ecology's responsibility to address. Agriculture, including dairies, is undoubtedly part of the problem so I don't want to oversimplify the potential effects of any actions that may come out of this," Mena wrote.

"I hope you agree with me that (the Agriculture Department) should take the lead in bringing the parties together."

Loveland turned Mena down.

"As I recall, she agreed we should stay involved but since we didn't have any authority over all the pieces it should be Ecology to take the lead," Mena said.

Loveland, who is now retired, did not respond to inquiries from the Yakima Herald-Republic.

Splitting responsibility for groundwater regulations between the two departments is a problem, according to Ecology Department director Manning.

"Both agencies sort of assume the other is going to take care of things and they don't," Manning said in an interview.

"We clearly need to finish this job or move it all back to one agency. I don't care who has it but I'm frustrated by this middle position. We've stalled out."

At one time, there was a vehicle for at least a discussion in the state Interagency Groundwater Committee, which included all agencies with a role in groundwater, led by the Ecology Department. But it has since become inactive.

Ogden, meanwhile, said she and her daughter have regained their active lives, riding horses and camping around their new home in Ellensburg. She said she could never again live in the house in Sunnyside even though she loved the property.

"Just the memory of drinking all those cups of coffee and tea and glasses of water over the years without knowing it contained bovine bacteria. I just couldn't do it."