MilkSource CAFO Not Lowing: Groundwater Monitoring Ruling Is "Unfair"

Wisconsin Administrative Law Judge, Jeffrey D. Boldt's decision (Capital Times document) earlier this month was hailed as a major victory by pro-water advocates pitting the Wisconsin Department of Natural Resources and Milk Source Holding LLC (a Big Ag CAFO owner) against the Family Farm Defenders, Friends of the Central Sands and residents and pro-water activists.

This is because Judge Boldt ruled that the DNR had to consider the cumulative effects of high capacity water wells in light of the scientifically demonstrated consequences on everyone's water in the region.

Another Boldt decision has the polluters of Wisconsin waters upset.

Boldt ruled last week that the DNR has the right and obligation to require groundwater monitoring at the New Chester Dairy, owned by Milk Source, and the largest dairy in Wisconsin.

"The owners of the New Chester Dairy operation in Adams County say a recent court decision that upheld the right of the Department of Natural Resources to mandate groundwater monitoring on their farm unfairly singles them out. The Kaukauna-based Milk Source LLC, which is also developing the proposed Richfield Dairy, says they object to the state's arbitrary placement of this requirement on a dairy to the exclusion of the other groundwater users," says the Wisconsin Ag Connection.

It's enough for Milk Source to suck up millions of gallons of fresh water and send it back as liquid cow manure.

Nor it is enough for Milk Source to give $Six figures to Scott Walker and have it come back as equally fetid policy.

Milk Source wants no one looking at its operations.

Writes Town of Rome citizen, Donald Ystad:

Poor, poor pitiful MilkSource Holdings. 

The same people who rolled over the uninformed community of New Chester, doubling down their CAFO after the first year to 10,000 cows, ruining their roads, their property values, and their lifestyle. 

And, the same guys who are trying to roll over the people in Richfield, where their community has spent $300,000 so far fighting off MilkSource with their proposed Richfield dairy CAFO in the courts. 

They contend that they are being "unfairly singled out" because they are being forced to put in monitoring wells. 

Give me a break, please!  

They are the poster child for dairy CAFOs out of control in WI.

Thank goodness for the likes of Administrative Law Judge Jeffrey Boldt, a clear thinker helping to undo the political damage of the past couple years. 

Keep on rollin, Judge Boldt!

Wisc Court Hits State DoJ and Factory Farm Polluters in Win for Clean and Safe Water Advocates

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.

Case Summary

Original case and decision

In 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.

Other results from the decision included the requirement for Kinnard Farms, Inc. to take steps to prevent environmental harm from a catastrophic failure of above-ground manure storage lagoons. The pollution permit now also has requirements meant to protect surface water and aquatic life from the facility’s discharges. Unfortunately, these additional conditions are very general and are likely harder to enforce than the numeric discharge limits and monitoring requirements Petitioners sought. The decision also did not require Kinnard Farms, Inc. to reduce the amount of manure it can spread on fields, which the Petitioners believe will contribute to surface water and groundwater pollution.
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.

Appeals

On 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 Coverage

After 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

Victory for Kewaunee County Citizens Fighting for Clean Water

 The fight for clean water in Wisconsin

Water Problems Highlighted in Court Challenge to DNR Water Pollution Permit

Updated - Judge blames toxic Kewaunee County wells on ‘massive regulatory failure’ (Seely, WisconsinWatch)
---
Citizens' win against mega dairy could presage anti-Walker rural vote (Jim Rowen)
---
Tears of joy here tonight as I read about the victory for the good guys over in Kewaunee County. So many of the folks in that area have become personal friends over the past 2 years.  I am so happy for their victory. Unfortunately it should not have to take a court decision to ensure clean drinkable water for a township. The systematic dismantling of our DNR has got to stop.

PLEASE VOTE! Together we have the power to change directions in this state and make protecting our environment a priority once again.
- Criste Greening, Saratoga
----

"Yesterday, the Wisconsin State Division of Hearings and Appeals issued a decision in the water pollution permit challenge by residents of Kewaunee County against the state Department of Natural Resources. The court decision spotlights the widespread groundwater pollution problems in an area of Wisconsin with the highest concentration of industrial livestock facilities," reports Stacy Harbaugh of Midwest Environmental Advocates.

Don Ystad of Rome writes, "Regardless of who wins on Tuesday, this issue cannot be ignored. In fact, the protection of our water should never have become a political issue. Citizens should not have to sue their own government agencies to protect their health and well being, and people should not have to live in an environment where percent of drinking water wells have become unusable because of manure contamination. The current push for 30 billion pounds of dairy by 2020 makes no mention of environmental protections. It's doomed for failure and will result in growing the fissure between farmers and citizens forced to deal with the resulting slop. Fortunately, our courts are leveling the playing field."

I know how I'm voting Tuesday."

Continues Harbaugh:

“In rural Kewaunee County, industrial livestock facilities produce more manure waste than can safely be spread on area fields for disposal,” said Sarah Williams, a Midwest Environmental Advocates staff attorney who worked with citizens in the permit challenge. “Nitrates and bacteria from untreated animal waste are polluting local drinking water wells. During the permit challenge proceedings, the overwhelming and moving testimony from Petitioners and local residents about their concerns for their health and their water was reflected in Administrative Law Judge Jeffrey Boldt’s decision.”
In his decision, he notes that “many members of the public were deeply upset about what could only be described as a crisis with respect to groundwater quality in the area.” He continues,

The proliferation of contaminated wells represents a massive failure to protect groundwater in the Town of Lincoln. The Department [of Natural Resources] needs to utilize its clear regulatory authority to require groundwater monitoring to enhance its ability to prevent further groundwater contamination. Many public witnesses testified, under oath, credibly and forcefully about the hardship and financial ruin that this local groundwater contamination crisis has had on their businesses, homes and daily life.

One of the Petitioners, Lynda Cochart, said about the decision “I’m pleased with the additional protections that Judge Boldt put in place. He obviously listened to our testimony and is concerned about our health and welfare. It is unfortunate that we had to go through so much to get this result. I would’ve liked attention given to our surface water as well as my well water, which I cannot use because it is polluted. No one can live with water like that.”

Recent sampling by the USDA revealed that bovine viruses and salmonella, a particularly harmful type of bacteria, were already present in Cochart’s private water well. Lynda has to buy bottled water for cooking, baking, washing her hands, and drinking.

The inclusion of groundwater monitoring requirements and an animal unit limit as enforceable permit conditions were two of the most significant victories in the decision. 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 6 groundwater monitoring wells. If practicable, at least 2 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 quality of manure held on site in multimillion gallon lagoons.

Boldt noted that without required monitoring, the only way for the DNR – or those who live near CAFOs or landspreading fields – to know about groundwater contamination is for a neighbor’s well to become contaminated. Judge Boldt said, “Unfortunately, this has been the all too common state of affairs in the Town of Lincoln and Kewaunee County over the past years.”

Other results from the decision included the requirement for Kinnard Farms, Inc. to take steps to prevent environmental harm from a catastrophic failure of above-ground manure storage lagoons. The pollution permit now also has requirements meant to protect surface water and aquatic life from the facility’s discharges. Unfortunately, these additional conditions are very general and are likely harder to enforce than the numeric discharge limits and monitoring requirements Petitioners sought. The decision also did not require Kinnard Farms, Inc. to reduce the amount of manure it can spread on fields, which the Petitioners believe will contribute to surface water and groundwater pollution.
“The decision is a victory for the people who live near Kinnard Farms, Inc.,” said MEA Executive Director Kimberlee Wright. “However, this is just one of fifteen industrial livestock facilities in Kewaunee County. Last week the local group Kewaunee Cares joined other environmental groups, including MEA, to file a petition to the U.S. Environmental Protection Agency under the Safe Drinking Water Act to get federal intervention in Kewaunee County’s water crisis. This decision is a turning point for Wisconsin water because the problems are too big to tackle in the courts one bad pollution permit at a time. This is what regulatory failure looks like.”

Midwest Environmental Advocates is a public interest organization that uses the power of the law to support communities fighting for environmental accountability.

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:
---
JEFFREY D. BOLDT
ADMINISTRATIVE LAW JUDGE

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 http://www.wicourts.gov/ca/opinions/00/pdf/00-1389 .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).

Sincerely,

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

DNR Ups Rhetoric Blasting Judge's Ruling of 'Massive Regulatory Failure'

Update: See also Judge: Contaminated wells part of 'massive regulatory failure' (Bergquist, Milwaukee Journal Sentinel)

"The DNR operates all of its permit programs to meet all requirements of current laws and rules," writes Michael Bruhn, Director of Policy and External Relations for the Wisconsin Department of Natural Resources, in an November 3 email.

Bruhn writes his comment in an email exchange with Wisconsin clean water activists and Greg Farnham of Juneau, Wisconsin following an administrative law ruling by Judge Jeffrey Boldt in October reading that "massive regulatory failure" at the DNR led to groundwater contamination in northeastern Wisconsin and that the DNR should in effect do its job to prevent continued water contamination by liquid cow manure. (Seely, WisconsinWatch)

Farnham and citizens around the state would like to see more such rulings as well as federal intervention by the EPA, as Wisconsin waters are becoming increasingly toxified by a new form of Big Agriculture and Dairy farming: Concentrated (Confined) Agricultural Feeding Operations or CAFOs.

The DNR has been trying to deflect political and legal blame for the massive regulatory failure, exemplified by DNR's spokesman William Cosh who tried to absolve the DNR even after the ad law opinion was published.

Writes Farnham to the DNR's spokesman William Cosh in a Nov. 2 email: "In my opinion your statements are beyond the pale and further evidence of the mutation of the department [Wisconsin DNR] from a protector of natural resources for the benefit of all citizens of the state to a cabal of the rich, powerful and well-connected agricultural lobbies."

Meanwhile, DNR Secretary Cathy Stepp has taken to talk radio and blogging criticizing the October ruling as "editorializing." (Rowen, The Political Environment)

Writes Farnham to the DNR's Bruhn: "Bill Cosh's attempt to pin the tail of responsibility for regulatory failure on his targeted donkey - the county health department - strikes me as egregiously irresponsible."

Rather it is misguided and dangerous state policy that has resulted in massive regulatory failure -- a failure which is turning our rural landscape into giant septic tanks for livestock manure, polluting our groundwater and adversely affecting the lives of rural residents and the well being of their communities."

The truth is the clean and safe water activists' effect on the November general election—despite widespread popularity of their position—was nil, to the puzzlement of many around Wisconsin.

Writes Don Ystad of Rome, Wisconsin: "(DNR bureaucrats) spin [the Boldt decision] just like the Ag lobbyists. These are supposed to be the people protecting our environment from those who would abuse it. DNR enforcement is down 67 percent in the past four years, 2013 set records for pollution of waterways in our state, and 2014 is on pace to exceed even that."

No source contacted for this piece is considering giving up.

National Press Hits Another Scott Walker Myth

Nate Cohn demolishes another Scott Walker myth: That winning gubernatorial elections in Wisconsin means Scott Walker has broad appeal for a presidential general election, bringing electability to a GOP presidential ticket.

"[Walker's] electoral record — three wins in governor’s races in four years in Wisconsin, including a recall election — isn’t as impressive as it looks," writes Cohn in the NYT in his column, The Upshot. "Mr. Walker’s electoral performance was average for a Republican running for governor in 2010 or 2014. His showing — a modest victory in a modestly Democratic state — was highly consistent with the extent that Republican candidates for governor outperformed Mr. Romney’s showing from 2012."

Cohn points out off-year turn-out adequately explains Walker's statewide success, and notes, "One could even argue that Mr. Walker’s performance was the least impressive of any Republican candidates for governor in the Midwest."

These facts are not lost on Wisconsin.

Nor is the fact that Walker garners his electoral success from the racially segregated counties, the WOW counties, outside Milwaukee and in rural Wisconsin where younger generations don't stay around that long as Walker continues to demolish community institutions that took generations for Wisconsin to build.

So, Walker continues his ambush on Wisconsin through his ludicrous 2015-2017 budget proposal that seems as much as a tool to bash political and ideological foes, as a thoughtful document to solve the deficit Scott Walker created.

Scott Walker is working to accumulate as much power as he can in his politicized Department of Administration.

Office of State Employment Relations

Walker's budget, for example, eliminates the "Office of State Employment Relations (OSER)" and transfers "the funding, positions, and functions of OSER to a new Division of Personnel Management in DOA which is attached administratively to the Department of Administration (DOA)." (Legislative Fiscal Bureau, p. 330)

The OSER is already sending risk notices to employees that they might be canned by Walker.

Wisconsin Division of Hearings and Appeals

And, administrative law judges in the Wisconsin Division of Hearings and Appeals (DHA) which hears complaints from Wisconsin citizens about many state agencies, such as the DNR would be moved to Walker's Department of Administration.

"According to the Budget in Brief, the Governor recommends that DOA conduct all administrative hearings for state agencies, with the exception of the Public Service Commission and unemployment insurance." (Legislative Fiscal Bureau, p.41)

This proposal can be understood as payback against Administrative Law Judge Jeffrey D. Boldt who hit the DNR for not considering "the accumulated effects of groundwater use when the agency reviewed an application for a high-capacity well for a $35 million dairy farm," a decision unpopular with Walker campaign contributors. (Bergquist, Milwaukee Journal-Sentinel)

Less citizen recourse against a more corrupt state government. Walker would never run on this, and does not enjoy a broad mandate for most of his agenda.

Any suggestion that Walker has cross-over appeal and electability as political assets is absurd.

Wisconsin Abandoning Great Lakes to Big Ag Pollution and Deadly Pathogens

Bayfield County Wisconsin,
bordering Lake Superior

Virus and bacteria contamination, including the Porcine Epidemic Diarrhea virus, is coming to Lake Superior and Wisconsin watersheds, courtesy of Dale Reicks and his sociopathic CAFO from Iowa

Human beings, as all Earth life are water beings.

We are composed of mostly water, and we need it to survive.

In Wisconsin, beyond our 15,000 lakes, we are the stewards of some 15 percent of our planet's fresh water in Lake Superior and Lake Michigan.

Yet, our water, our lives are under assault and Wisconsin Gov. Scott Walker is leading the charge for the Koch brothers, dark moneyed interests and Big Ag polluters and their we-have-no-further-comment mantra. (Mullen, Ashland [Wisconsin] Daily Press]

Walker, displaying his typical anti-intellectual bent, said last year that Wisconsin's ancient Golden Sands deposits demand we facilitate out-of-state corporations to extract the sands for use in fracking. (Karoli, Crooks and Liars)

"Thanks to the gods and the glaciers, we have some of the best frack sands in the world," Walker proclaims, urging a destructive sand extraction process for even more dangerous fracking operations.

Walker has a similar disregard for Wisconsin and the Great Lakes' water, and like other disasters Walker has left behind, our children and their children will pay the price.

Those looking for a get-away to the great Northwoods, the Apostle Islands and Lake Superior soon are going to have try Minnesota and Michigan instead because the Reicks operation's corporate headquarters—located 300 miles south in Iowa—does not share the pedestrian environment and health concerns of far-northern Wisconsin that up to now has been spared the siting of CAFOs.
---

A Tale of Two Wisconsin Counties

By Mary Dougherty, Bayfield County Wisconsin

Bayfield County, Wisconsin’s Crown Jewel, will soon join the ranks of the 57 other counties in Wisconsin with a CAFO (Concentrated Animal Feeding Operation) operating within its borders.

Except unlike the 57 other counties, Bayfield’s northern border is Lake Superior and 10 percent of the world’s fresh water.

Reicks View Family Farms from Iowa submitted an application on Dec. 19 requesting a permit for the 6.4 million gallons of manure produced annually by 100 boars, 7,500 sows, 4,125 (55 pound – market weight) pigs and 14,625 (0-55 pound) piglets in its CAFO.

We should tell Reicks to stay in Iowa, but they are not taking a poll.

Kewaunee County, located on the shores of Lake Michigan, has many of the same features as Bayfield County: Marinas, tourism, lighthouses, Great Lakes, rolling hills, fishing boats, trout streams, harbor towns, beaches, sailing, watersheds and commercial fisheries.

Kewaunee also now has one of the largest concentrations of industrial dairy farms in the state and provides a cautionary tale about what happens when CAFOs come to town. (Robyn Mulhaney, Kewaunee County business owner, Peninsula Pulse)

Kewaunee is home to 200 dairy farms and 15 dairy CAFOs– 80,000 cows producing an equivalent amount of waste equal to 1.6 million humans. And all that manure is causing a lot of problems. In a Capital Times article from Oct. 23, 2014, the DNR estimates that "the county’s cropland has a carrying capacity for 11.3 million pounds of nitrogen, while manure produced there accounts for about 12.4 million pounds — leaving a surplus of about 1.2 million pounds."

According to WisconsinWatch, "As of June 2013, 31 percent of the wells (in Kewaunee County) had tested as unsafe due to nitrates or bacteria, with individual townships ranging from 14 to 51 percent." (Golden, WisconsinWatch)

Administrative Law Judge Jeffrey Boldt declared, in his decision in the water pollution permit challenge by residents of Kewaunee County, that there has been "a massive regulatory failure to protect groundwater." (Seely, WisconsinWatch)

The Cornucopia Institute reported on Oct. 31, 2014: "Midwest Environmental Advocates joined Clean Wisconsin, Environmental Integrity Project, Midwest Environmental Defense Center, Kewaunee CARES and the Clean Water Action Council of Northeast Wisconsin to jointly file a written Petition for Emergency Action detailing the need for the U.S. Environmental Protection Agency to exercise its emergency powers under the Safe Drinking Water Act and other federal pollution cleanup laws."

Make no mistake, the water in Kewaunee County’s wells, streams and watersheds, as well as Lake Michigan, are polluted due to the massive proliferation and expansion of the CAFO industry in Northeast Wisconsin in the last decade.

Bayfield County, on the shores of Lake Superior, relies on tourism for much of our economic stability and growth – in 2013, tourists spent 40.75 million dollars in our region. The 2014 ice cave phenomenon brought over 138,000 people and 13.8 million dollars into our community in less than 3 months.

According to the Wisconsin Department of Tourism publication, The Power of Wisconsin Tourism 2014 Key Messages for Wisconsin’s Tourism Industry: "Tourism continues to be one of Wisconsin’s most important economic resources and investing in tourism promotion and marketing at both the state and local level is one of the best things a state can do to attract visitors, enhance the state’s image and keep the economy growing."

How are 24,000 pigs in the Fish Creek Watershed, less than 10 miles (as the crow flies or water flows) from Lake Superior going to support our tourism-based economy? They’re not; the end game is Kewaunee County and it’s not pretty.

Dale Reicks is leaving Iowa because of the PED (porcine epidemic diarrhea) virus, a corona virus with a nearly 100 percent mortality rate in suckling pigs. The National Hog Farmer states, "Huge numbers of virus particles are shed in feces. One thimble-full of feces could contain enough virus to infect all the pigs in the United States. The PED virus is being detected in samples collected from pig collection points, slaughter facilities, transportation vehicles and innumerable fomites illustrating the vast potential for transmission. It is expected that survivability and transmission of virus will be enhanced in cold weather. Farm biosecurity efficacy is likely to be tested aggressively in the coming months."

And that’s why Reicks is seeking to open a factory farm in Bayfield County– his bottom line is threatened by an incurable disease that’s the result of poor animal husbandry practices in his home state of Iowa.

He’s bringing his dirty business to a county with six nationally designated areas (more than any other place in the State of Wisconsin): Apostle Islands National Lakeshore, Chequamegon-Nicolet National Forest, Iron River National Fish Hatchery, North Country National Scenic Trail, St. Croix National Scenic Riverway and Whittlesey Creek National Wildlife Refuge.

Some 7.125 billion people are walking on this planet right now. The sum total of the populations of Ontario, Michigan, Minnesota and Wisconsin is 34.65 million.

In essence, less than .0049 percent of the world's population are the direct stewards of 10 percent of the planet's fresh water. How do we handle such a weighty responsibility? A good place to start would be to tell Dale Reicks to keep his hogs out of Bayfield County.

At some point, we all have to decide the resources we’ve so generously been given are not endless and deserve our utmost respect and gratitude. If I had one wish for my children and grandchildren, it would be that Lake Superior and its watershed continue to provide for the people who live on its shores. I would wish for a legacy of gratitude and stewardship for one of the great wonders of the world. I don’t want Bayfield to become the next Kewaunee County.
#
Reicks View Farms
1020 Pembroke Ave
PO Box 150
Lawler, IA 52154

Telephone: 641-364-7843
Fax: 641-364-2029
Email: info@reicksview.com

Judge: DNR Must Consider Cumulative Impacts in Issuing High-Capacity Well Permits

Legal blow to Scott Walker
and Big Ag as Judge rules
DNR must protect Wisconsin water

Wisconsin DNR has granted record numbers of high capacity well permit applications in recent years - Ordered by Judge to consider the Public Trust Doctrine of the Wisconsin Constitution

Updated: Village of Coloma in Waushara County—Amid the draining of area lakes, wetlands and trout streams, the Wisconsin Department of Natural Resources (DNR) has been ordered to consider the cumulative effects to the environment of the proposed Richfield Dairy CAFO's (Concentration Dairy Feeding Operation) applications for two high capacity wells in eastern Adams County, bordering Waushara County.

The administrative law decision is being celebrated by pro-water advocates as a major victory that pitted the Wisconsin Department of Natural Resources and Milk Source Holding LLC (a Big Ag CAFO owner) against the Family Farm Defenders, Friends of the Central Sands and residents and pro-water activists supporting the Pleasant Lake Management District in three cases decided by Administrative Law Judge, Jeffrey D. Boldt of Madison.

The ruling is a black eye to Scott Walker and the Republican Party that has transformed the DNR into an arm of the Walker administration that has been abdicating its mission of protecting Wisconsin natural resources in favor of presumptively granting permits and facilitating special interests, many of which are large contributors to Republican Party of Wisconsin front groups and Scott Walker's campaigns.

The cases are regarded as the first major legal test after the Wisconsin Supreme 2011 decision, Lake Beulah Management District v. Village of East Troy (Case Number 2009AP2021) that affirmed Wisconsin's statutory delegation of authority to the DNR to regulate high capacity water wells using a comprehensive permitting framework that utilizing scientific findings.

Pro-water candidates for state office are applauding the ruling:

Dana Duncan, the Democratic Party nominee for the 72nd Assembly District which encompasses the Village of Coloma on the district's southern border, has been a fierce critic of CAFOs in the Central Sands region of Wisconsin in which Adams and Waushara counties are sited.

Duncan release the following statement:

"I am greatly encouraged by yesterday’s decision by the State of Wisconsin Administrative Law Judge which upheld the DNR’s authority to consider cumulative impact of high capacity wells. For the past four years, our environment has been under assault by a group of politicians more interested in corporate welfare than protecting the water of our state.  This precious resource must be preserved and any effort to obtain short-term benefit at the cost of long-term use of that resource is misguided.  Those opponents maliciously place motion 375 into the state budget in 2012 in an effort to limit the DNR’s authority on this issue. This decision further indicates that that action is both contrary to law and contrary to the environmental traditions of Wisconsin.  One of my first efforts upon being elected will be to work with others to obtain the repeal of motion 375 so the DNR’s authority is clear."

My opponent has recently fallen off of the fence he has been balancing on for two years and seen the light regarding the danger of high capacity well permits being indiscriminately granted and the great dangers of CAFOs.  If he wants to prove that his request for a moratorium on high capacity wells and CAFOs is more than political grandstanding, I ask him to public state that he will work to repeal motion 375 and cross the isle to work with Democrats if necessary."

"However, this should be seen today for what it is, a great victory for the citizens of Central Wisconsin and my future district."

The ruling was also hailed by State Senator Julie Lassa (D-Stevens Point) who said via a press release:

"Today’s ruling makes it absolutely clear that the DNR can’t fulfill its responsibility under the Public Trust Doctrine to protect Wisconsin’s waters if it does not consider the impact of existing high-cap wells when it reviews new permit requests. This is an important victory for those who have been fighting to protect our valuable groundwater resources for everyone who depends on them."

I believe it is time to repeal the wrong-headed provision inserted in the state budget last session to prevent challenges to high-cap well permits on the basis of cumulative impact.  We also need to bring together all stakeholders to work on a sound groundwater management plan that preserves this vital resource for everyone who relies on it, now and in the future."

The Friends of the Central Sands released the following statement:

Victory!

Judge Rules DNR Must Consider Cumulative Impacts in Issuing High-Capacity Well Permits

Village of Coloma (Waushara County) – An administrative law judge issued a decision this week finding that the DNR must consider the cumulative impacts of groundwater pumping when considering new high-capacity well permits.

The ruling came in a case brought by Friends of the Central Sands (FOCS) and others challenging a well permit for the proposed Richfield Dairy concentrated animal feeding operation (CAFO) in Adams County.  The DNR had said it lacked authority to take the impacts of existing and future wells into account when issuing new high-capacity well permits.

The judge found that the DNR “took an unreasonably limited view of its authority,” and that the public trust doctrine, statutes, and decades of court precedent required DNR to consider cumulative impacts.  The decision continued, “It is scientifically unsupported, and impossible as a practical matter, to manage water resources if cumulative impacts are not considered.”

“It is common sense that the DNR must consider cumulative impacts of groundwater pumping before allowing another well,” said Bob Clarke, Founder of FOCS.  “This decision recognizes that science and the law compel consideration of cumulative impacts, too.”

The decision comes at a critical time, as studies have shown surface water levels are dropping in the Central Sands area due to high-capacity well pumping, primarily for irrigation.  Evidence presented at a hearing showed water resources near the proposed CAFO were already pumping-impacted, including Pleasant Lake, wetlands, and numerous Class 1 and 2 rated trout streams.

Yet the DNR has seen record numbers of well permit applications in recent years.

“For years, we have failed to consider the consequences to our water resources when allowing new high-capacity wells,” said Bill Vance, a home owner on Pleasant Lake.  “This decision recognizes that the DNR must do the math and consider how much is too much.”

This week’s decision caps a process that began in 2011, when Richfield Dairy first applied for a high-capacity well permit.  Court decisions in 2012 and 2013 had determined the DNR’s analysis of the well application was flawed.  This week’s decision comes after three weeks of hearing, where experts testified on the existing and projected impacts to water resources.

The judge’s decision reduced the allowable amount of water the dairy may pump in one year.  In a companion case, the administrative law judge determined the DNR should have established a cap on the number of animals that may be confined at the CAFO.

Court Decision - High Capacity Wells and Cumulative Effects
Court Decision - WPDES Permit