Sep 18, 2015

Judge Sends Wisconsin DNR and DoJ Memo, as Polluters Benefit by Aggressive Work by GOP

Scott Walker, Four Supreme Court Justices and Wisconsin Legislators Are True Friends to Wisconsin Polluters

Following the politicization of the Wisconsin Dept. of Justice (DoJ) and the Wisconsin Department of Natural Resources (DNR) by the Republican Party, expectations the DoJ and DNR will protect Wisconsin surface and groundwater have evaporated under the administration of Gov. Scott Walker.

Infants and young children sent into intensive care after drinking faucet water in Brown and Door counties, a massive regulatory failure in Kewaunee County resulting in 30 percent of tested water wells contaminated by liquid cow manure by large industrialized dairy operations in the area in a massive regulatory failure, have led residents in northeastern Wisconsin to expect little from environmental agencies charged with protecting their families' health from polluters.

In a breaking development, Wisconsin Administrative Law Judge, Jeffrey D. Boldt, who found a "massive regulatory failure" in October 2014 in a ruling that "ordered the DNR to modify a discharge permit for Kinnard Farms," wrote a letter to the Chief Legal Counsel of the Wisconsin DNR alerting the attorney to a body of case law and legal precedent.

Residents in northeastern Wisconsin are still shocked from developments last week when an area polluting industrial dairy—a CAFO or (Concentrated (Confined) Agricultural Feeding Operation)—Kinnard Farms Inc. in Kewaunee County, was given carte blanche by the DNR and DoJ to expand and pollute. (Bergquist, Milwaukee Journal-Sentinel)

"Kewaunee County has become a focal point of opposition of large dairy farms because of numerous instances of polluted wells in the area. Also, the county has areas of karst geography, which is formed by the breakdown of rocks and contains underground drainage systems. This type of landscape makes it easier for manure to seep through soil and enter the aquifer," notes Bergquist.

Protecting water as a Public Trust in Wisconsin is part of the state Constitution, implemented by statutes and rules; and case law which is part of a Republican project to erode water protection for the benefits of water polluters by GOP-funded jurists.

Industrialized agriculture has benefited by the open corruption of the four Republican-affiliated members of the Wisconsin Supreme Court, as seen in a major environmental law case in 2013. (Marley, Milwaukee Journal-Sentinel).

Republican legislators and Scott Walker are moving to enact laws abandoning the Public Trust Doctrine protecting water.

The end-run move by the DNR and DoJ on behalf of Kinnard Farms Inc., "circumventing the October 2014 Administrative Law Judge's decision that the agency does have the authority under state law to include and animal unit limit and groundwater monitoring requirement in the industrial livestock operation's permit," to protect the region's water is an audacious legal-political maneuver, as noted by the Midwestern Environmental Advocates. A court challenge in state circuit court is expected.

Kinnard Farms Inc. would "become the fifth-largest dairy in Wisconsin and would produce more than 70 million gallons of manure a year," to the bewilderment of area residents. (Seely, WisconsinWatch)

An April 2015 letter sent to the U.S. Environmental Protection Agency (EPA) by numerous environmental groups "... contained evidence that Kinnard Farms Inc.'s practice of spreading millions of gallons of liquid manure on local fields every year is contributing to bacteria and nitrate pollution in ground water, drinking water wells, and Casco Creek, which drains into Lake Michigan. The groups are urging officials to investigate further and require Kinnard to cease and clean up any unlawful pollution.

"Town of Lincoln residents deserve to have the long-standing pollution in their community addressed, and enforcement action taken against one of the known contributors to the widespread contamination taking place in this karst region in Kewaunee County. This contamination has a direct impact upon citizen's accessibility to clean drinking water, and is accompanied by the threats to human health and severe quality of life issues. Rural residents live daily with the threats of contaminated water in their homes, the financial stresses of buying bottled water, and the continued costs of well testing, which is a financial burden to many, while state and federal regulatory agencies do not aid in assistance," said Lynn Utesch, family farmer and member of Kewaunee CARES.

Wisconsin Administrative Law Judge Jeffrey D. Boldt's letter is reproduced below:

September 17, 2015

Timothy A. Andryk, Chief Legal Counsel
Department of Natural Resources
Office of Legal Services
PO Box 7921
Madison, WI 53707-7921

In the Matter of the Wisconsin Pollutant Discharge Elimination System Permit No. WI-0059536-03-0 (WPDES Permit) Issued to Kinnard Farms, Inc., Town of Lincoln, Kewaunee County

Case No. IH-12-071

Dear Mr. Andryk:

I am in receipt of the Department of Natural Resources' (DNR) Order dated September 11, 2015, in the above-captioned matter.

While the DNR accepted the legal basis of the DHA condition relating to onsite groundwater monitoring, the DNR concluded that: "The Off-Site Monitoring Condition is not explicitly required or explicitly permitted by statute or by a rule." This statement appears to conflict with longstanding legal precedent apparently not considered by the Department of Justice. There is no reference to any review of case law in Mr. Lennigton's August 18th , 2015 correspondence.

In Maple LeafFarms v. DNR, 2001 Wis. App. 170, the Wisconsin Court of Appeals held that the Wisconsin legislature has "clearly and unambiguously" given the DNR specific authority to regulate off-site landspreading activities from a CAFO that impacts groundwater. The court held:

Therefore, because a CAFO's overapplication of manure to fields can be a discharge to groundwater under the statute, we determine that the DNR has authority to issue permits regulating Maple Leafs off-site landspreading operations. Under our analysis of WIS. STAT. §§ 283.001 and 283.31, we conclude that the legislature has conferred authority on the DNR to regulate discharges, in the form of over application of manure, by CAFOs regardless of whether the discharge occurs on land owned by the CAFO. Id. 26
Further, the decision specifically holds that a CAFO includes the off-site landspreading areas.

[A] CAFO includes not only the ground where the animals are confined, but also the equipment that distributes and/or applies the animal waste produced at the confinement area to fields outside the confinement area. Any overapplication of manure by Maple Leaf through its landspreading activities would then be a discharge, either because of runoff to surface waters or percolation of pollutants to groundwater. Because the off-site croplands are used by Maple Leaf to dispose of waste produced at its on-site facility, the permit conditions imposed on Maple Leaf to enforce groundwater protection standards are as applicable to Maple Leaf's off-site landspreading operation as they are on-site. Therefore, because a CAFO's overapplication of manure to fields can be a discharge to groundwater under the statute, we determine that the DNR has authority to issue permits regulating Maple Leafs off-site landspreading operations. Id. 26

As the Maple LeafFarms court concluded:

The WPDES statutory prohibition on discharges of pollutants from CAFOs would be of little value if the owners of the CAFOs could avoid responsibility merely by placing those pollutants onto the ground of third parties without regard to rates and quantities so that the pollutants would predictably leach into groundwater or runoff to surface waters. Id. 35 .pdf

The Maple Leaf Farms case was well known to the parties. Maple Leaf Farms is even cited several times in the bound version of the Wisconsin statutes. Further, the underlying DHA decision in that case was even cited by Kinnard Farms in its June 10, 2014, Proposed Conclusions of Law, at p. 16. I regret not including it in my Order as a Conclusion of Law, but no party made the argument now relied upon by the DNR. While Kinnard cited Maple Leaf Farms in its Proposed Conclusions of Law, it did not cite § 227.10(2m). Id.

The more general provisions of Act 21 relating to Chapter 227 cited by the Department of Justice have not specifically addressed the longstanding Wisconsin precedent that "groundwater protection standards are as applicable to... a CAFO's "off-site landspreading operation as they are on-site." There thus appears to be no conflict between Act 21 and the offsite monitoring condition in the DHA Order. Rather, the same legal basis that applies to onsite monitoring, which the Department accepted as not in conflict with Act 21, applies to off-site landspreading areas as well.

While there appears to be no legal basis to distinguish between on-site and off-site monitoring, there may well be some practical differences. The DHA Order therefore anticipated any problems with the consent of off-site landowners by making their participation voluntary and also specifically giving the DNR discretion to determine if such a regimen was practicable.

Because I am aware of no such precedent relating to the other disputed condition, relating to establishing a maximum number of animal units, I will let my decision speak for itself on that issue. That would have been my strong preference on both issues.

I am writing this letter not to advocate for my decision but solely to fulfill any ethical obligation I may have as an adjudicator to make a tribunal aware of precedent necessary for a fair resolution of a case. I also speak only for myself and not for the Division of Hearings and Appeals (DHA).


Jeffrey D. Boldt

Administrative Law Judge
c: Attorney Daniel P. Lennington, Department of Justice

Secretary Cathy Stepp, Department of Natural Resources
Attorney Sarah Williams, Midwest Environmental advocates
Attorney Jordan Hemaidan, Michael Best & Friedrich
Attorney Jane Landretti, Department of Natural Resources
Administrator Brian Hayes, Division of Hearings and Appeals

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