On October 29, 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 for approving plans for a concentrated animal feeding operation. This decision follows February's contested case hearing in Green Bay in which five petitioners made their arguments that the plans for the Kinnard Farms Inc. expansion did not adequately protect surface water and groundwater from the industrial dairy’s production and disposal of 70 million gallons of liquid manure and other waste.
In this case, petitioners asked Judge Boldt to find certain terms of the Kinnard water pollution permit unreasonable. The Wisconsin Department of Natural Resources issued the WPDES permit without having all required information, including, among other things, information related to the waste storage facility and the manure management building. Kinnard Farms, Inc. spreads manure and other waste on fields located over porous, karst soil, and petitioners argued that it is unreasonable for the DNR to have issued the permit without having all the necessary information it needed to determine whether there are sufficient conditions to ensure water quality standards will be met.
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 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 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.
On November 18, Kinnard Farms, Inc. submitted a petition asking the Wisconsin Department of Natural Resources Secretary to review the recent administrative law judge’s decision in a citizen challenge to conditions in a pollution permit issued by the DNR for the industrial dairy. 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 Farms, Inc. will appeal the administrative judge's decision through judicial review.
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. State Division of Hearings and Appeals’ Judge Boldt now has 90 days to decide the outcome of the case.
Related Media Coverage
EPA Asked to Look Into Kewaunee County Water - WBAY-TV ABC 2, Patrick Nelson 10/23/2014
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
Public Can Comment on Kewaunee County Water Tonight in Green Bay- Door County Daily News, Rick Jensen, 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
Hormonal Wells Found in State's Karst Region - Wisconsin Public Radio, Kate Golden, 12/15/2013, includes interactive map with cattle/manure-to-cropland ratio by county
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