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Two petitions and a lawsuit: how citizens are using the power of the law to protect water

Aug 01, 2016

Midwest Environmental Advocates has been at the heart of three big steps forward in the effort to help the voices and the rights of the people of Wisconsin be recognized by the state and federal governments entrusted with the protection of our clean water resources.

From a recent victory in the courts regarding an industrialized dairy pollution permit challenge, to two formal requests for intervention in Wisconsin by the U.S. Environmental Protection Agency, the people are fighting hard for government accountability and to keep polluters in check.

The following is from Midwest Environmental Advocates Staff Attorney Sarah Geers who was MEA's lead litigator in the Kinnard Farms, Inc. pollution permit challenge, represented MEA in the Safe Drinking Water Act petition to the EPA, participated in the Kewaunee Groundwater Collaboration Workgroups, and provided staff support for the Petition for Corrective Action to the EPA.

The Case of Kewaunee County Residents vs the Wisconsin Department of Natural Resources
On July 14th, Dane County Circuit Court Judge Markson issued a decision in an appeal of a Department of Natural Resources approval of a water pollution permit for Kinnard Farms, Inc., an expanding industrialized dairy operation in northeastern Wisconsin. The decision marked a major turning point in a story that has been unfolding since before Midwest Environmental Advocates first filed the lawsuit in October 2012 on behalf of five petitioners from the Town of Lincoln, a part of rural Kewaunee County where most families drink from private wells that tap into groundwater.

The twists and turns of this unusual litigation are best told by the Judge’s decision which describes how the Wisconsin Department of Natural Resources changed its course from requiring basic, sensible groundwater protections ordered by the courts to shrugging off its authority based the Attorney General’s opinion that our state laws aren’t specific enough to allow monitoring for groundwater contamination or limits to the sources of pollution – in this case, dairy cows.

It’s important to recognize that petitioners in this case – the Kewaunee County residents themselves – bravely pursued this challenge for years to ask for the DNR to do its job under the law. But between appeals by the dairy business and the state government itself, we’ve spent years simply trying to prove that the state government already has the power to protect groundwater from the bacteria, phosphorous and other contaminants that come from excessive manure spreading.

Kewaunee County may be ground zero for problems with CAFO waste, but the heart of this lawsuit impacts how all water in Wisconsin may or may not be protected from pollution.

What did the Kewaunee Groundwater Task Force accomplish and what’s next for the county?

Another outcome of Northeastern Wisconsinites who went above and beyond for government accountability was the Groundwater Collaboration Workgroup. In 2014, Midwest Environmental Advocates joined with other environmental advocacy organizations to ask the U.S. Environmental Protection Agency to take action in Kewaunee County under the federal Safe Drinking Water Act.

Without the urging of Kewaunee County citizens to bring this federal action and without the leadership of clean water advocacy groups in petitioning our EPA to take action to direct the DNR to form the Groundwater Collaboration Workgroup, we would not have a Statement of Scope revising rules on concentrated animal feeding operations’ waste management in sensitive Karst regions, we would not have had concerned stakeholders develop long-term solutions to problems with manure pollution in groundwater, and we would not have the degree of attention from bipartisan legislators to the scope of the water pollution crisis in Kewaunee County and anywhere CAFO waste management is a problem.

However, there is something we still haven’t secured since the 2014 petition to the EPA: clean drinking water for families with polluted water wells.

When the EPA and DNR met with Kewaunee County residents on June 23, around 200 people came to the information session expecting results now that months of research and discussions by the Groundwater Collaboration Workgroup are over. But instead of being told how they could find relief from living with polluted wells, they heard: we’re working on it, but fixing this problem requires money and regulatory changes, both of which take time.

We need that kind of change. But right now there are small family farmers who take time away from their work to help elderly neighbors get clean water from the only free drinking water kiosk in Kewaunee County. . Right now there are families relying on buying bottled water for drinking, cooking and washing their hands. They need clean water now. Community members and a private company set up the kiosk as a stop-gap to remedy immediate need for alternatives to drinking from polluted wells. But the EPA and DNR have the power and resources to do more to make clean water available for the third of county residents living with polluted wells.

Federal scrutiny statewide

Petitioning our government isn’t just for Kewaunee County.  In 2015, Midwest Environmental Advocates supported 16 citizens in formally asking the EPA to bring Wisconsin back into compliance with the Clean Water Act. Since then, the EPA has been digging into the systemic failures of our state government – its laws, rules and practices – that are standing between today’s problems and the vision of the Clean Water Act and Wisconsin’s clean water heritage.

Securing basic, sensible measures to protect groundwater in the Town of Casco – and in the process proving how the DNR has the power to limit CAFO pollution – has been the most expensive and time-consuming lawsuit our law center has ever undertaken. We wrote the Petition for Corrective Action after years of documenting how our state has drifted away from Clean Water Act protections. The public should not have to file piecemeal litigation and petitions to get our government to follow state and federal clean water laws, but that’s what they are facing in Wisconsin.

Our health and the health of our state’s economy and environment now depend on the EPA and the DNR to honestly acknowledge that our laws are broken. And we will depend on state elected officials and the Governor to take meaningful action to fix what’s broken.  

/ tagged: government, drinking water, rural, agriculture, federal, clean water act