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Kewaunee County - Five CAFO Permits

— Kewaunee county residents get one hearing in response to Wisconsin Department of Natural Resources approval of five CAFO permits at once.

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On January 11, 2018, the Wisconsin Department of Natural Resources responded to comments submitted by MEA and others. The DNR also made a final determination to reissue a WPDES permit to Dairy Dreams LLC. This is another of the five Kewaunee County CAFO’s seeking permit renewal.

Midwest Environmental Advocates submitted comments to the DNR on Tuesday, December 5, 2017.

Case Summary

On Tuesday, November 28, 2017, the Wisconsin Department of Natural Resources held a public hearing on five draft water discharge permits for large concentrated animal feeding operations in Kewaunee County (Dairy Dreams LLC, Kinnard Farms Inc., Sandway Farms LLC, Seidl’s Mountain View Dairy LLC, and Wakker Dairy Farm Inc.).

When the DNR announced it would hold one hearing on five permits for CAFO expansions or approvals, it was another pivotal moment in the years-long effort of Kewaunee County residents to fight for the protection of their surface and groundwater. Residents already struggle to keep up with the never-ending encroachment of an industry that is not complying with the law and is not being held accountable for its contributions to pathogens in private drinking water wells or algae blooms in our lakes.

Kewaunee County residents expressed frustration at the hearing and asked the DNR to live up to its mission to protect natural resources. It can be challenging for the public to provide meaningful public input on even one industrial livestock facility’s water pollution permit, and it is even more difficult to absorb and respond to information about five facilities’ permits at once. Midwest Environmental Advocates also testified at the hearing.

Common problems among CAFO permits heard in November 2017

Midwest Environmental Advocates submitted comments to the DNR that included information about how the DNR’s policy on calf hutch area runoff and the use of vegetated treatment areas to treat feed storage runoff fails to ensure compliance with the “zero-discharge” permit standard. This issue is related to MEA’s representation of several clean water groups in a legal challenge to a settlement between DBA and DNR. Site inspection reports at several of these CAFOs show that calf hutches and VTAs don’t meet permit conditions and aren’t designed to comply with state and federal law.

Comments also ask the DNR to require groundwater monitoring for CAFOs that have a history of compliance problems because this region is so vulnerable to groundwater pollution.

One of the most glaring problems MEA’s comments point out is how the draft permit for Kinnard Farms, Inc., if approved, would violate a circuit court order requiring an animal unit limit and off-site groundwater monitoring. The DNR considers this reissued permit a “clean slate,” but MEA pointed out that the law doesn’t allow permit holders and DNR to ignore a court order by an administrative law judge in 2014, which was affirmed by a circuit court judge in 2016. Though the case is on appeal, the orders still stand and the DNR cannot work around judicial decisions and allow violations of the rule of law.

MEA created an action alert and a blog post with more information about these permits.

Key issues

Feed Storage Runoff Controls and Vegetated Treatment Areas (“VTAs”)

At least four of the large CAFO permits in Kewaunee County that are the subject of the upcoming hearing allow CAFOs to use VTAs to “treat” some of the contaminated runoff from the feed storage area. Feed storage runoff contains pollutants such as phosphorus, nitrates, sediment (total suspended solids), and sometimes, E. coli bacteria.

EPA informed DNR that if CAFOs use VTAs for feed storage area runoff “the VTAs need to be designed, constructed, operated and maintained to achieve compliance with the ‘no discharge’ performance standard requirement” in federal law. (See EPA letter to DNR, March 4, 2016). EPA explained that DNR’s current practice, to review VTAs for compliance with the NRCS Standard 635 was not enough to ensure compliance with the “no discharge” standard.

“Region 5 is finding that CAFOs in Wisconsin are designing VTAs to meet design standards established by NRCS. Based on inspections and field observations, it does not appear to Region 5 that VTAs or the NRCS design standards for VTAs ensure that the required “no discharge” level of performance established in the federal ELG is being achieved.” (See EPA letter to DNR, March 4, 2016)

DNR developed a draft guidance document that provided CAFOs with feed storage runoff control alternatives that comply with state and federal law. The EPA reviewed the draft and offered comments and recommendations (See EPA letter to DNR, December 5, 2016). After the Dairy Business Association (“DBA”) sued and settled with DNR, it has rescinded its Feed Storage Area Runoff Guidance. Nevertheless, this settlement cannot change regulatory requirements; such as, DNR must include conditions in permits “that are necessary to achieve compliance with surface water and groundwater quality standards.” Wis. Admin. Code § NR 243.13(1).

Additionally, although DNR has rescinded its Feed Storage Area Runoff Guidance document, DNR cannot go back to its old way of doing business. As EPA’s and DNR’s past comments make clear, state and federal law require that a permittee establish at the time of permit issuance that a VTA will meet the “no discharge” permit standard.    

Calf Hutch Areas

At least two of the permits on public notice are for CAFOs with calf hutch areas – Dairy Dreams LLC and Sandway Farms LLC. Compliance inspection reports within the past five years at each CAFO detail surface water runoff from calf hutch areas at these CAFOs, see DNR Compliance Report for Dairy Dreams, and EPA Compliance Evaluation for Sandway Farms LLC.

DNR and EPA documented surface water and groundwater discharges from calf hutch areas at CAFOs generally, which is summarized in a DNR memo, Calf Hutch Lots. This DNR memo has now been rescinded by DNR as part of the settlement agreement between DBA and DNR.

The settlement does not change regulatory requirements, including the requirement that DNR include conditions in permits “that are necessary to achieve compliance with surface water and groundwater quality standards.” Wis. Admin. Code § NR 243.13(1).

Sensitive Areas and Groundwater Monitoring

DNR has authority to require groundwater monitoring wells “in the vicinity of manure storage facilities, runoff control systems, . . . and other treatment systems where the department determines monitoring is necessary to evaluate impacts to groundwater and geologic or construction conditions warrant monitoring.” Wis. Admin. Code § NR 243.15(7). In other words, DNR can require a CAFO to install groundwater monitoring wells for any of the following reasons:

Geologic conditions warrant monitoring (such as sensitive karst areas);

Construction conditions warrant monitoring (such as where a facility hasn’t yet designed or built runoff control or treatment systems to prevent groundwater discharges); OR

DNR determines monitoring is necessary to evaluate groundwater impacts.

Currently, the only draft permit out of the five on public notice that requires on-site groundwater monitoring is the draft permit for Kinnard Farms Inc.