Wisconsin DoJ and Industrialized Ag Hit in State Circuit Court Opinion- Dane County Judge John W. Markson offers hope not all law is rigged in Wisconsin
From Midwest Environmental Advocates:
In a victory for this case, [Clean Water, Inc. and Lynda A. Cochart v. Wisconsin Department of Natural Resources et al (Wisconsin Case No. 2015CV002633)], we are pleased to share the July 14, 2016 Circuit Court [Judge John W. Markson's] decision that affirms the petitioners' and partner organization Clean Wisconsin's argument before the court that the Wisconsin Department of Natural Resources' rejection of the Division of Hearings and Appeals' Administrative Law Judge's order to include animal unit limits and off-site groundwater monitoring of Kewaunee County CAFO was unlawful. This decision also describes how the Department of Justice's narrow interpretation of Act 21 - that the DNR did not have explicit authority to impose these permit conditions - was incorrect and that state statutes do empower the DNR to require limits and monitoring of pollution in order for permitees to comply with state and federal clean water laws.
Read the full Circuit Court decision (PDF).
On Monday, October 12, 2015, three years after the initial petition for a contested case hearing, and a year after the administrative law judge issued a decision in this case, we had to again challenge the DNR’s unlawful action in September to overturn the judge’s decision. After the DNR changed its position, petitioners appealed the agency’s final decision (PDF, large file) to permit the company to operate without a limit on the number of animals in the facility or a requirement to monitor the conditions of groundwater where the company spreads manure offsite. Petitioners’ appeal was combined with Clean Wisconsin’s appeal and the cases were briefed before the Dane County Circuit Court.
On Friday, September 11, 2015, the Wisconsin Department of Natural Resources issued a final decision on the challenged water pollution permit, circumventing the October 2014 Administrative Law Judge's decision and doing an about-face on the position the agency argued in the case. In October, the Judge found that the DNR does have the authority under state law to include an animal unit limit and off-site groundwater monitoring requirement in the industrial livestock operation's permit, and called the polluted groundwater in Kewaunee County evidence of a “massive regulatory failure.”
Midwest Environmental Advocates is working with Kewaunee County petitioners in this appeal by providing the citizens with legal and technical support. In a parallel action, Clean Wisconsin has also filed an appeal of the agency’s decision as it would have set a precedent that could negatively impact groundwater protections throughout the state of Wisconsin.
Original case and decisionIn October 2012, neighbors of the proposed expansion of a large, concentrated animal feeding operation (CAFO) filed a petition with the Wisconsin Department of Natural Resources (DNR) to request a review of the water pollution permit issued to Kinnard Farms Inc. in the Town of Lincoln, Kewaunee County, Wisconsin.
Petitioners are concerned that an expansion of Kinnard’s industrial dairy will produce so much farm waste that its plans to manage, store, and spread manure on area land will result in runoff into area surface and downstream waters, and will contaminate the groundwater on which the families rely for drinking water. The DNR issued the permit before the CAFO’s design plans for the expanded facility were complete and reviewed and approved by the DNR. This denied the public’s right to review and voice their concerns about the expansion and hampered the agency’s ability to determine whether additional conditions or monitoring were necessary to protect the area’s land and water. The agency also did not include a limit on the number of cows at the dairy, which is essential to an enforceable permit.
The five petitioners live near or share property lines with the proposed CAFO expansion and have deep concerns about the impact of the dairy’s waste management on the health of their families, their land and their water. Some have lived their entire lives in the rural town. To them, property means more than acreage. Their land is their home, where they have raised children, enjoyed recreation and wildlife, peace, quiet and fresh country air.
But they also understand the geological features of the Karst region, which has deeply cracked land that does not filter rain or runoff like other soils do and is particularly prone to groundwater pollution. Polluted groundwater is already a health concern for people who live in the area. According to Kewaunee County Land and Conservation Department records, 50% of private wells tested in the Town of Lincoln are unsafe to drink, either because they tested positive for total coliform bacteria or because they exceed groundwater quality standards for nitrates (for an interactive map of groundwater quality in Wisconsin, visit the Center for Watershed Science at UW-Stevens Point website).Further, for residents with asthma and chronic obstructive pulmonary disease, living near manure lagoons filled with the untreated waste from thousands of cows turns fresh, country air into aggravated health problems.
After citizens filed their petition with the DNR, the agency granted the request for a contested case hearing with the Wisconsin State Division of Hearings and Appeals. Kinnard Farms intervened and asked the Division to dismiss the case. The appeals division dismissed the request for summary judgment and a contested case hearing was held in Green Bay on February 11-14. Attorneys completed a briefing schedule and Midwest Environmental Advocates filed the final brief on behalf of the petitioners on June 27, 2014.
On October 29, 2014, the Wisconsin State Division of Hearings and Appeals issued a decision in the water pollution permit challenge. Two of the most important parts of the decision include orders for groundwater monitoring and an animal unit limit as enforceable permit conditions. Specifically:
- Kinnard Farms, Inc. must conduct groundwater monitoring at the production area and around at least two landspreading fields. Kinnard must submit a plan to the DNR within 90 days of the decision that includes no less than six groundwater monitoring wells. If practicable, at least two of those wells must be in locations that monitor groundwater quality impacts from off-site manure landspreading.
- Kinnard Farms, Inc. is now required to put a cap on the number of animals to ensure the facility does not grow beyond its current capacity to store and dispose of the large quantity of manure held on site in multimillion gallon lagoons.
This case should encourage the Wisconsin Department of Natural Resources to take science-based, meaningful steps to protect our water from the pollution caused by the mismanagement of livestock manure. Industrial livestock operations create waste just like other industrial pollution sources. They need to be regulated like other industrial point sources across the state, with strict discharge limits and monitoring oversight. Read MEA's press statement on the decision.
AppealsOn November 18, 2014, Kinnard Farms, Inc. submitted a petition asking the Wisconsin Department of Natural Resources Secretary to review the recent administrative law judge’s decision. Midwest Environmental Advocates sent the DNR Secretary a letter urging the agency to reject the petition for review as the request would undermine the integrity of the contested case hearing process and ignore the role of an administrative law judge as an independent decision maker. On Tuesday November 25, the DNR Secretary declined Kinnard’s petition for review.
Kinnard’s Appeal and Motion for a Stay
As expected, Kinnard Farms, Inc. appealed Administrative Law Judge Boldt’s decision on November 25, 2014 to challenge the authority of the DNR to require an animal unit limit and a plan for groundwater monitoring at fields where Kinnard land applies and disposes of its manure. Kinnard also filed a motion for a stay of Judge Boldt’s decision so that Kinnard would not have to provide a groundwater monitoring plan for its landspreading fields and would not have to provide information necessary for the DNR to include an animal unit limit in its permit.
Petitioners’ and DNR Motion to Dismiss
The citizen petitioners along with the DNR filed a motion to dismiss Kinnard’s appeal on December 22, 2014. They argued that Kinnard cannot appeal Judge Boldt’s decision yet because it is not “final” and ready for appeal until the DNR issues the modified Kinnard WPDES permit with the conditions that Judge Boldt ordered—including groundwater monitoring at landspreading fields and an animal unit limit.
Next steps for appeals
On April 28, 2015, the Door County Circuit Court agreed with citizens and the DNR that the case wasn’t ready for appeal until the DNR modified the permit and made the decision “final.” Initially, instead of dismissing the appeal, the court chose to put the appeal on hold until the DNR made its “final” decision by issuing a modified Kinnard water pollution, or WPDES, permit. The court also declined to rule on Kinnard’s motion to stay, and thus declined to prevent the DNR from enforcing, Judge Boldt’s decision.
The court later reconsidered its decision to put the appeal on hold instead of dismissing it outright. On June 9, 2015, the court decided that the more appropriate action was to dismiss the appeal pending a final decision from the DNR. Kinnard can appeal to the circuit court again once the DNR makes a final decision and issues a modified permit.
Kinnard’s Failure to Provide Information to the DNR
During the time that the Door County Circuit Court Judge Todd Ehlers assigned to Kinnard’s appeal did not rule on the citizens’ and DNR’s motion to dismiss, Kinnard still had not complied with Judge Boldt’s order. In his decision, Judge Boldt ordered Kinnard to develop a groundwater monitoring plan for its main site as well as its landspreading fields within 90 days of the decision. Kinnard then submitted a groundwater monitoring plan for its main site, but not for landspreading fields. The DNR sent a letter to Kinnard asking for a complete groundwater monitoring plan that complies with Judge Boldt’s order. The company did not respond. On June 3, 2015, the DNR sent another letter to Kinnard Farms, Inc. to request the information necessary to develop a groundwater monitoring protocol and set up an animal unit limit.
DNR Permit Decision and petitioner appeal
On Friday, September 11, 2015, the Wisconsin Department of Natural Resources issued a final decision on the challenged water pollution permit, circumventing the October 2014 Administrative Law Judge's decision and doing an about-face on the agency's position. The Judge found that the DNR does have the authority under state law to include an animal unit limit and off-site groundwater monitoring requirement in the industrial livestock operation's permit. But the DNR now denies that it has that authority.
On September 17, Administrative Law Judge Boldt sent a letter to the DNR's Office of Legal Services citing a 2001 Maple Leaf Farms vs DNR lawsuit in which the Wisconsin Court of Appeals held that the Wisconsin legislature has "clearly and unambiguously" given the DNR authority to regulate off-site landspreading of manure. Judge Boldt's letter points out how the known court decision conflicts with the DNR's denial of its authority.
Questions remain as to whether the agency's action - and the Wisconsin Department of Justice's opinion letters on which it is based - have legal merit or would survive a circuit court challenge. On Monday, October 12, petitioners filed an appeal of the agency’s final decision to permit the company to operate without a limit on the number of animals in the facility or a requirement to monitor the conditions of groundwater where the company spreads manure offsite.
Related Media CoverageAfter criticizing judge, DNR secretary declines to "correct" ruling on Kewaunee dairy water permit - Wisconsin Center for Investigative Journalism, Kate Golden, 11/26/2014
Kewaunee mega-dairy asks DNR secretary to overrule judge's permit modifications - Wisconsin Center for Investigative Journalism, Kate Golden, 11/20/2014
‘A Massive Regulatory Failure to Protect Groundwater,’ Kinnard CAFO Must Cap Cow Numbers, Monitor Groundwater – Peninsula Pulse, Jim Lundstrom, 11/7/2014
Judge: Contaminated Wells Part of ‘Massive Regulatory Failure’ – Milwaukee Journal Sentinel, Lee Bergquist, 11/6/2014
Kinnard Farms Expansion Approved With Conditions – Door County Daily News, Tim Kowols, 11/4/2014
Judge Blames Toxic Kewaunee County Wells on ‘Massive Regulatory Failure” – Wisconsin Center for Investigative Journalism, Ron Seely, 10/30/2014
Mega-Dairy's Growth Plans Hotly Debated- Wisconsin Center for Investigative Journalism, Ron Seely, 2/14/2014
Kewaunee County DNR Permit Hearing Underway in Green Bay- Green Bay Press Gazette, Nathan Phelps, 2/12/2014
Kewaunee County Residents Challange DNR's Approval of Dairy Farm Expansion- Wisconsin Public Radio News, 2/10/2014
The hearing was also highlighted in the Wisconsin Ag Connection, Door County Daily News, Kewaunee County Star News and Green Bay Press Gazette, NBC 26 (with video) and Fox 11 (with video).
Disputed Expansion of Dairy Watched for Statewide Impact - Wisconsin Center for Investigative Journalism, Kate Golden, 2/8/2014, includes map of the concentration of permitted CAFOs in Wisconsin
Kewaunee County Residents Challenging Wisconsin Water Quality Code - Peninsula Pulse, Carol Thompson, 1/3/2014
Manure Spills in 2013 the Highest in Seven Years Statewide - Milwaukee Journal Sentinel, Lee Bergquist, 12/5/2013
Kewaunee Families File Legal Action Against DNR - Peninsula Pulse, 10/26/2013
Explosion of CAFOs Cause for Concern in Kewaunee County - Peninsula Pulse, Robyn Mulhaney Op Ed, 8/23/2013
CAFO Expansion in Kewaunee Raises Concerns - Peninsula Pulse, Carol Thompson, 11/9/2012
The Costs of CAFOs - Peninsula Pulse, Carol Thompson, 8/31/2012
State Pits Water Quality Versus Commerce - Peninsula Pulse, Myles Dannhausen Jr., 6/9/2011