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Kewaunee County action alert: five draft CAFO permits get a public hearing on Tuesday

Nov 22, 2017

For an update on what happened at this hearing, please visit our "Five CAFOs get one hearing leaving Kewaunee residents concerned about water quality" blog post with more resources, including a copy of our comments to the DNR.

Information on Kewaunee County permits currently on public notice:

On Tuesday, November 28th at 10:00 a.m., the Wisconsin Department of Natural Resources will hold a public hearing on five draft water discharge permits for large concentrated animal feeding operations in Kewaunee County. The public hearing will be held in the Exhibition Building at the Kewaunee County Fairgrounds, 621 Third St., Luxemburg.

The five large CAFOs whose permits are under consideration are Dairy Dreams LLC, Kinnard Farms Inc., Sandway Farms LLC, Seidl’s Mountain View Dairy LLC, and Wakker Dairy Farm Inc. For more information, visit DNR’s webpage for water discharge permits that are on public notice. This information is not permanently on the DNR’s website, so consider saving a personal copy of permit documents.

DNR will accept testimony at the public hearing. Anyone who plans to comment in person should arrive early and sign a testimony slip, which DNR will use to call audience members to testify. DNR often limits testimony to a short time frame, typically three minutes. It is therefore useful to keep in-person testimony concise and to submit corresponding, more substantive comments in writing. DNR has a right to place a time limit on in-person commentary and to maintain order and control over the public hearing. It may be useful to have a typed version of in person comments to provide to the DNR after verbal testimony. Finally, note that some public hearings begin with a presentation from DNR staff and/or CAFO owner(s).

Residents may also submit written comments until Tuesday, December 5. Written comments should be addressed to Casey Jones, Oshkosh Service Center, 625 E. County Road Y, Oshkosh, WI 54901, or Casey.Jones@wi.gov. Anyone providing oral or written comments should expect to receive a notification of the DNR's final decision regarding permit coverage. DNR will respond to all public comments.

Information for residents interested in attending the public hearing or submitting written comments:

Reviewing and commenting on even one CAFO permit can be daunting, so we’ve summarized some of the core issues that apply to each permit under consideration. In general, DNR can only make permit changes based upon water quality concerns, so it’s useful to focus on those concerns rather than other important issues such as odor or air quality. There is a lot to cover, so below we’ve consolidated some of the issues into suggested questions and topics for testimony. If you want more detail, you can read on for a deeper dive into these issues.

Potential questions to ask at the hearing or in written comments (note that DNR may not answer questions at hearing, but will respond in writing along with response to other comments):

  • Has DNR conducted investigations and taken samples from vegetative treatment areas (VTAs) and/or calf hutch area discharges at each of these facilities? (See Compliance Report for Thompson’s Gold Dust Dairy, Dairyland Farms LLC and Ranovael Dairy LLC).
  • Did the permittees submit sufficient information for DNR to determine that there will be no discharge of pollutants from VTAs at CAFOs that use VTAs for feed storage area runoff?
  • Did the permittees submit sufficient information for DNR to determine that there will be no discharge of pollutants from calf hutch areas at CAFOs with such areas?
  • Has DNR or the permittee conducted modeling of feed storage runoff to the VTA to establish that it will comply with the “no discharge” standard?
  • Has DNR or the permittee conducted modeling of calf hutch area runoff to establish that it complies with the “no discharge” standard?
  • If DNR lacks evidence that these facilities can currently meet the “no discharge” standard, then wouldn’t it be appropriate for DNR to require monitoring, such as the grab sampling that DNR conducts in compliance inspections?
  • Similarly, why does only one CAFO – Kinnard Farms, Inc. – have groundwater monitoring of the production area (farm) in its water discharge permit when all five of these CAFOs are located in sensitive areas?

Information to present at the hearing or in written comments:

  • Any information (perhaps sampling or photos) downstream of one of these facilities (if you’re familiar with where water discharges at the production area – aka main farm)
  • Any photos or other documentation regarding compliance issues or discharges from the vegetated areas at these facilities (specifically, runoff from a VTA or calf hutch area)
  • How potential or existing surface water or groundwater pollution from CAFOs affects you.

Download Midwest Environmental Advocates' testimony by Staff Attorney Sarah Geers.

Read on for additional information about some 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:

  1. Geologic conditions warrant monitoring (such as sensitive karst areas);
  2. 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
  3. 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.

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