No nitrate police: State, local regulators can't, or won't, stop drinking water from getting worse

The farmer was growing impatient.

He and dozens of other central Nebraska farmers had gathered for mandatory training in Columbus a few weeks before last Christmas. In response to high nitrate levels, the Lower Loup Natural Resources District had designated a "Phase 3 area." That led to new requirements – like this training to help farmers manage their nitrogen fertilizer use.

The farmer didn't like this. He told NRD leaders he had been drinking water containing nitrate at 40 parts per million – quadruple the safe drinking water standard – all his adult life. He was fine, he told them.

During the morning session, he stormed out.

"I'm gonna go pollute the water," he told the NRD's assistant manager, Tylr Naprstek, right before he left, Naprstek recalled.

There was precious little Naprstek could do.

He couldn't fine the farmer. He couldn't send a cease and desist letter. He couldn't issue a written or verbal warning. He couldn't do much except mandate this training. And ask nicely.

"We can try to educate, and as long as he stays within the boundaries of our rules and regs, that's really all we can do," said Naprstek.

Even as Nebraska's water grows increasingly laced with nitrate – a reality that worries experts studying links between nitrate and cancers – the regulators meant to keep our water clean either can't, or won't, do much to stop practices known to cause nitrate levels to spike.

Local NRDs and the Nebraska Department of Environment and Energy have few staff to monitor Nebraska's vast swaths of farmland, thousands of cattle feedlots, large hog operations and chicken farms. And even when they identify malpractice, the agencies' own regulations don't give the staff many tools to combat it, multiple NRD leaders said.

NRDs can limit when farmers can apply nitrogen fertilizer. They can mandate water testing. They can hold mandate training.

But, they can't stop a farmer from applying far more nitrogen fertilizer than is needed.

NRD managers find themselves hamstrung by their own boards, according to meeting minutes, interviews and emails obtained by the Flatwater free press under public records laws.

The Nebraska Department of Environment and Energy, charged with keeping cattle feedlots from polluting the water supply, can take years to react to sky-high nitrate levels. Even when they do, these regulators often take little action – as they continue to hand out new feedlot permits "like Halloween candy," wrote Mike Sousek, an NRD general manager, in an email.

Many farmers use their nitrogen fertilizer responsibly, state and local leaders stressed. They use methods that leach fewer nitrates. They embrace best practices championed by the University of Nebraska-Lincoln.

They are the agricultural equivalent of drivers, buckled into their seats, driving the speed limit.

But in Nebraska, there's no one to stop the other driver, the one barreling 90 miles per hour down the highway, crossing the centerline, putting everyone on the road in danger.

"There's no nitrogen police," Sousek said.

***

Engelmeyer Farms, a West Point feeder cattle and hog facility, has had high nitrate in some of its downstream wells since 2007. No one drinks from these wells, but sky-high readings are evidence that nitrate is leaching into the water supply.

In 2011, nitrate readings peaked at an astronomical 413 parts per million.

The Environmental Protection Agency's safe drinking limit is 10 parts per million.

Only in August – fifteen years after the initial high readings – did the NDEE conduct a "compliance status inspection" because of high nitrate, according to state records.

Three prior, more general inspections found the feedlot owner failed to provide proof that they properly inspected waste. Despite some of the highest nitrate levels ever recorded in Nebraska, the state's only guidance was that Engelmeyer Farms needed better record-keeping.

The NDEE's enforcement at Engelmeyer Farms exceeds that done at other feedlots with high nitrate levels, according to public records.

Five feedlots near Wisner frequently reported far higher nitrate levels than their surroundings in the past 10 years, a Flatwater free press review showed.

On all five of these feedlots, the department's groundwater section recommended nothing beyond continued monitoring.

There are 2,600-some active permits for concentrated animal feeding operations in the state. Most are cattle feedlots, large hog operations or chicken farms.

Only 367 have been required to install monitoring wells and report water quality results, according to state regulators.

Four or five staff members – who have many other duties – are tasked with reviewing the tests CAFOs submit twice a year, said NDEE Groundwater Section Supervisor David Miesbach.

"I see it all the time. If I got alarmed by every time I saw something over 10 ppm, it would be a tough day," said Miesbach.

Miesbach said he and a small staff work with livestock operations diligently, identifying the worst cases, trying to determine where the nitrate is coming from and experimenting to bring levels down.

The department regulates manure runoff. Once the manure is applied to farm fields, it becomes local NRDs' responsibility, state leaders noted.

Livestock operations have planted trees and built new waste lagoons to improve water quality, Miesbach said.

Some measures could cost the owners millions of dollars. That's one reason the state needs to thoroughly study before asking owners to change, he said.

The NDEE didn't provide the total number of feedlots, hog operations and chicken farms it works with, as the Flatwater free press requested. It didn't provide the total number of livestock producers known to have nitrate issues. Nor did it provide a timeline for when state regulators will address these issues.

The Flatwater free press requested five years of emails from roughly 80 department employees that mentioned "nitrate" and similar terms.

The department quoted the newsroom $44,103.11 to obtain those public records.

This week, the Flatwater free press sued the NDEE, claiming the department offered a "legally insufficient and invalid estimate" for those public records.

***

To Jim Bendfeldt, a longtime farmer near Kearney, there's nothing more refreshing than cupping his hands and drinking the cool water flowing from irrigation pipes in the summer.

But he won't let his grandchildren have more than a few gulps, because some of his irrigation wells are high in nitrate.

Nearly a quarter of the certified irrigated acres in the Central Platte NRD where Bendfeldt farmed – some 225,000 acres – have nitrate levels exceeding 15 parts per million – 150% of the federal safe drinking water standard.

In the past four years, farmers in this area have self-reported using more nitrogen fertilizer than UNL recommends – on average, 22% more, according to a Flatwater free press analysis of data obtained in a public records request.

Bendfeldt, also an NRD board member, said sales records would show that farmers in the area are using even more. The NRD can't ask for these sales records.

"We have no authority to do anything other than accept the online records ... and take each producer (at their) word," he said.

Many farmers and agricultural interest groups cast the nitrate problem as a legacy issue. They argue that golf courses and lawns are to blame. At NRD board meetings, they protest that more studies are necessary before regulators institute rules that restrict how they farm.

"I think there can't be just a flat standard," said Nebraska Farm Bureau President Mark McHargue. "We have to base it on science all the way through, so that involves what types of crops you're growing, what's your rotation, what your rainfall is, what your slope on the soil is, what your organic matter is in your soil."

But the science shows that most nitrates in the water come from fertilizer applied to crops. Years of results from these "nitrate fingerprinting" tests in multiple NRDs point to commercial fertilizers as the most common culprit.

The free market can help, some argue. Farmers have no incentive to over-apply nitrogen.

"If farmers blindly apply nitrogen...they're literally throwing money out the window, and they're not going to do that," said Andy Scholting, founder of Nutrient Advisors, a livestock and crop consultant.

Regulators themselves are far from blameless, said Tim Gragert, a state senator from Creighton. Gragert once worked for the Natural Resources Conservation Service, which helps farmers with soil health. He sits on the legislature's Natural Resources Committee and authored new laws, one that created a task force that studied nitrates.

He doesn't mince words on Nebraska's natural resources districts.

"They've already been given that authority to do what they need to do. They're not doing it," he said.

***

In late 2020, staff in the Lower Elkhorn NRD proposed that an area should be elevated to Phase 2 in parts of Cuming, Colfax and Dodge counties.

The move came after nitrate levels had met the threshold laid out in the district's own rules.

But the board decided against it. It tabled the motion. Instead, it voted to conduct more testing.

"We seem to want to just kick this can down the road to just study," Sousek said at the board's September meeting. "We've had this in place in Pierce County for 20 years and we're still studying, and the problems aren't getting any better. "

After a long pause, he continued: "If we aren't going to follow our own rules, maybe we need to change our rules."

The tension isn't uncommon. Leaders of natural resources districts – local government units created by the state to protect natural resources – often find themselves being slowed or halted by board members, who are locally elected.

Mark Hall, chair of the Lower Elkhorn NRD board, said that more studying makes sense.

"We're talking about what I would consider maybe a 70-year-old problem and we're going to make a decision within one year to affect the whole area. I would rather be a little conservative and make sure we understand the science before we make a change," he told the Flatwater free press.

NRD staffers and board members who favor regulation argue that their own test results have shown nitrate levels are rising – and likely affecting residents' health. Nebraska has the highest pediatric cancer rate west of Pennsylvania. Many of these cancers, researchers say, are linked to high nitrate levels.

Joel Hansen, a board member, urged the full board to at least vote on creating the Phase 2 area. "The board's making the decision not to follow our own rules by not doing anything," Hansen said in an interview.

But being a board member who favors regulation is often a good way to lose your board seat.

In the November election, Hansen was defeated by Plainview farmer Jim Aschoff, who was once issued a cease-and-desist order for failing to submit an annual report on his fertilizer use, yield goal and water quality.

What happened in Lower Elkhorn NRD isn't isolated.

In 2019, a board committee of the Upper Big Blue NRD discussed introducing a rule to ban the application of anhydrous ammonia under certain conditions. The committee voted not to move forward.

Later that year, the board proposed another rule to require a fertilizer application method intended to reduce the amount of nitrate that seeps into the water. Another proposed rule would have capped some fertilizer applications.

More than a dozen residents, mostly farmers, spoke at the public meeting to oppose the changes. The board then voted to remove them.

Three years later, eight of the district's 12 zones showed an increase in median nitrate levels.

In three zones, at least half of the sampled private wells - which provide drinking water to rural residents - have nitrate levels higher than the safe drinking water limit, according to the NRD's most recent test results.

Self-reported data from the district shows farmers, on average, have applied more than the UNL recommended level of nitrogen fertilizers in the past four years.

***

Two of the wells that supply Wisner's drinking water have been getting worse for years, and one veered into dangerous territory this year after its nitrate levels shot as high as 11 parts per million.

The town of 1,239 in northeast Nebraska's Cuming County has issued multiple drinking water notices. It has provided bottled water for pregnant people.

In the meantime, a feedlot located a few miles outside town has shown consistently high levels of nitrate in its water. Earlier this year, a monitoring well there skyrocketed to 232 parts per million.

State regulators have inspected the feedlot twice since 2018. They reported no issues.

In an interview in October, Miesbach said he hadn't yet contacted the feedlot.

The northeast area of Nebraska is home to some 1,800 livestock facilities, the most of any region in the state.

Fewer than 100 have on-site monitoring wells, said Sousek. That means regulators are flying mostly blind.

Sousek thinks the feedlots, regulated by the NDEE, have contributed to his district's high nitrate in groundwater, he wrote in emails obtained by the Flatwater free press.

"On one hand (NDEE) is preaching to the NRD's that we need to clean this mess up to meet standards, on the other hand they're handing out permits like Halloween candy," wrote Sousek in an email sent to every NRD manager in Nebraska.

But the NRD has repeatedly stopped short of more aggressively regulating farmers' use of nitrogen fertilizer.

It has only recently begun sending cease-and-desist orders to farmers when the farmers repeatedly failed to fill out crop reports. It has declined to bring lawsuits and levy fines against those who refuse to comply with orders related to nitrate management. Though Sousek noted that many farmers do comply after conversations with NRD staff.

Sousek's own board has repeatedly declined to increase regulations, even in areas where nitrate levels are spiking.

As this continues, the water quality in many small Nebraska towns continues to move in one direction:

South.

Nine small towns in Sousek's district have had at least one nitrate reading above the federal safe drinking water standard since 2017.

In emails obtained by the Flatwater free press, the NRD director sometimes sounds a sorrowful note. Like there's little he and any other regulators can do. Like nothing will ever change.

"The real legacy issue as I see is our resistance to change in what we consider best management practices, the legacy of doing what we have always done, the statement of...we are doing everything right," Sousek wrote in an email to UNL researchers in February 2021. "We continue to add to the problem."

The Flatwater free press is Nebraska's first independent, nonprofit newsroom focused on investigations and feature stories that matter.

This article was produced as a project for the University of Southern California Annenberg Center for Health Journalism's 2022 National Fellowship.