Kinnard Farms CAFO Water Pollution Permit Challenge
— Citizens of the Town of Lincoln, Kewaunee County are concerned that the Kinnard Farms Inc. plan to manage 70 million gallons of untreated animal waste doesn’t protect groundwater from contamination.
Our work to help Kewaunee County residents protect their drinking water from agricultural pollution continues. After more than 6 years of legal proceedings, the Supreme Court agreed in January to hear our case alleging that a water pollution permit issued to Kinnard Farms did not do enough to protect surface water and groundwater.
Earlier this month, the Wisconsin Department of Justice filed a motion with the High Court indicating that its position in this case has changed and that the Department now supports the findings of the lower courts. In other words, the Justice Department now appears to agree, at least in part, with our position that DNR has the authority to require CAFOs to comply with additional permit conditions that protect water resources.
This good news has been tempered by the Legislature’s request to intervene in the case. Republican lawmakers, who have hired private attorneys paid for by taxpayers, continue to argue that DNR and other regulatory agencies ought to be prohibited from imposing permit conditions unless they are explicitly authorized by state statute or administrative code.
Regardless of whether the Legislature gets involved in this case, MEA and our partners will continue to defend the necessary public health and water quality protections at issue in this lawsuit. Citizens in Kewaunee County and across the state have fought too hard to let politics prevent real progress on these crucial issues. We expect oral arguments before the Supreme Court to be scheduled for late fall or early winter.
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. (“Kinnard”) in the Town of Lincoln, Kewaunee County, Wisconsin.
Petitioners filed this challenge because the Kinnard water discharge permit did not do enough to protect surface water and groundwater resources from the impacts of this large industrial farm. The Petitioners live near or share property boundaries 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.
Petitioners also understand the geological features of the Karst region, which has fractured bedrock and shallow soils that do 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 at the time the case was filed, 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).
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 intervened in defense of the DNR’s decision to issue the water discharge permit. Petitioners presented their case with the help of expert testimony during a five-day administrative hearing. Petitioners and other concerned members of the public also provided testimony about the hardship they suffer as a result of groundwater and drinking water wells contaminated by manure and pollutants associated with agriculture.
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.
The decision also required Kinnard 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 to reduce the amount of manure it can spread on fields, which is based on maximum crop yields rather than the amount that is appropriate to protect surface water and groundwater pollution.
This case should signal to DNR that it must 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.
On November 18, 2014, Kinnard submitted a petition asking then DNR Secretary Cathy Stepp 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, 2014, the DNR Secretary declined Kinnard’s petition for review.
Kinnard’s Appeal and Motion for a Stay
As expected, Kinnard appealed Administrative Law Judge Boldt’s decision on November 25, 2014, arguing that DNR lacks authority 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
Petitioners, along with the DNR, filed a motion to dismiss Kinnard’s appeal on December 22, 2014. Petitioners and DNR 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. DNR and Petitioners agreed at this stage that DNR had the authority to impose an animal unit limit and require off-site groundwater monitoring in the Kinnard permit.
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’s failure to provide information to the DNR
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 final permit decision - petitioner appeal
On Friday, September 11, 2015, the DNR issued a 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. DNR previously agreed with the Administrative Law Judge that the DNR does have the authority under state law to include an animal unit limit and off-site groundwater monitoring in the industrial livestock operation's permit. But the DNR now denies that it has that authority based on a letter from the Wisconsin Department of Justice attached to the decision.
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 asserted that this decision conflicts with the DNR's position.
On October 12, 2015, Petitioners filed an appeal of the DNR’s September 11, 2015, 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. Petitioners’ appeal was combined with an appeal of the agency's decision by Clean Wisconsin and the cases were briefed before the Dane County Circuit Court.
DNR permit decision - Midwest Environmental Advocates (on behalf of Petitioners) and Clean Wisconsin appeal
In a victory for Petitioners, on July 14, 2016, a Dane County Circuit Court overturned DNR's September 11, 2015, decision that refused to implement the Administrative Law Judge's order to include animal unit limits and off-site groundwater monitoring in the Kinnard permit. This decision also rejected the Department of Justice's interpretation of Act 21 and narrow interpretation of DNR’s authority. The Circuit Court confirmed that DNR has the authority to impose the animal unit limit and off-site groundwater monitoring in the Kinnard permit as ordered by the Administrative Law Judge.
On September 30, 2016, Dane County Circuit Court Judge Markson ordered DNR to pay fees and costs to petitioners – Midwest Environmental Advocates and Clean Wisconsin. Judge Markson concluded that this was such an “extraordinary” case that it warranted an order directing DNR to pay the costs of this appeal on behalf of the public. The Wisconsin Equal Access to Justice Act allows organizations like MEA to recover some of the fees and costs incurred while pushing back against unreasonable government action. It allows recovery in a case where the court concludes the agency’s position was not “substantially justified.”
DNR appeals Dane County Circuit Court decision
DNR appealed the Dane County Circuit Court decision to the District II Court of Appeals in Waukesha County. The District IV Court of Appeals issued an order transferring venue of the appeal from District II to District IV based on the Court’s interpretation of the appellate venue statutes. DNR filed a Petition for Supervisory Writ with the Wisconsin Supreme Court requesting that the Court direct the Court of Appeals to transfer venue back to District II. On April 3, 2018, the Wisconsin Supreme Court issued a decision in DNR’s favor and transferred the appeal to the District II Court of Appeals.
Court of appeals asks WI Supreme Court to issue a decision
On January 16, 2019, the Court of Appeals certified the case, along with a case involving DNR's authority to regulate high capacity wells, to the Wisconsin Supreme Court. Certification means the Court of Appeals did not issue a final ruling on the case, but instead asked the Wisconsin Supreme Court to take the case directly and issue a decision.
The Court of Appeals explained its reason for certifying the case by stating, “We agree with the State and Clean Wisconsin that the court’s determination regarding the scope and breadth of Act 21 will have implications far beyond the permitting process for high capacity wells and pollution discharge elimination systems and will touch every state agency within Wisconsin.”
In a letter dated April 9, 2019, the Wisconsin Supreme Court agreed to hear this case and issue a decision. Written briefs will be filed by late spring, and we expect oral arguments to be scheduled for late fall or early winter.