The board governing the Idaho Department of Environmental Quality on Wednesday denied a petition to create more rules regarding dairy and feedlot wastewater used for pressurized irrigation.

But the petition, submitted by the Idaho Rural Council, has spurred the Idaho State Department of Agriculture to modify its list of penalties to include a minimum $1,000 fine every time waste run through a sprinkler leaves a dairy.

The change is an unwelcome one for the dairy industry, which has repeatedly criticized the idea of "pathogen drift" - that particles of livestock waste run through sprinklers can float off of the property they came from.

Such drift has long been a concern of the council, which wanted liquid waste from confined-animal feeding operations to be treated just like human wastewater before it is used for irrigation. The petition sought for DEQ to examine just what lives in the waste and what risks organisms may pose to human and livestock health, and then take steps to prevent drift or any other discharges - such as sprinklers spraying over a fence line.

The problem, DEQ board member Randy MacMillan said Thursday, is that DEQ doesn't have primary oversight of CAFOs. Dairies and feedlots in the state are managed through a memorandum of understanding signed by DEQ, ISDA and the U.S. Environmental Protection Agency that lays out each agency's role. And ISDA already forbids any sort of wastewater discharge off of a property.

Hence the expanded penalty, developed and approved since the DEQ board first discussed the issue in October, said ISDA Deputy Director Brian Oakey. The change, he said, will "put the industry on notice that this is an issue that will be enforced and needs to be addressed."

ISDA doesn't want to micromanage how dairy owners apply waste to crop land, Oakey said. But he said strategies such as using drop-down sprinklers may help minimize drift. And he said the agency does have ways to inspect possible drift problems - including taking swab samples from windows, a method commonly employed to monitor pesticide drift, he said.

Though not quite the response the council hoped for, Rich Carlson - its attorney - said he thought the DEQ board took the matter seriously. The council will watch ISDA's next steps, and plans to send it the same rulemaking petition in the near future, he said.

"I can't fault the (DEQ) board for doing what they did," Carlson said.

Groups such as the Idaho Dairymen's Association, however, still aren't happy with the result.

In a Sept. 25 letter to the DEQ board, Executive Director Bob Naerebout argued against further regulation and questioned the reliability of sprinkler samples provided by the council, "an organization that has demonstrated its bias against the dairy industry."

He also cited a 1975 study that found most bacteria in sprinkler systems could die as quickly as three seconds after being sprayed into the air, and pointed out that his group is helping fund research on the issue by a U.S. Department of Agriculture microbiologist in Kimberly.

"There's no scientific evidence - none, zero, zip," backing the concept of pathogen drift, Naerebout said Thursday.

MacMillan said the DEQ board will keep tabs on the matter to see if it should take any additional steps in the future.

ISDA licenses more than 600 dairies in the state that are inspected an average of two and a half times a year.

Nate Poppino may be reached at 208-735-3237 or npoppino@magicvalley.com.