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PRESS RELEASE May 15, 2023

MEA Clients Announce Legal Settlement Requiring Kinnard Farms to Stop Spreading Liquid Manure on Agricultural Land

QUICK SUMMARY

In 2021, the Wisconsin Supreme Court ruled in favor of our clients and affirmed the authority of the DNR to protect rural drinking water by using water pollution permits for large livestock operations that include groundwater monitoring requirements and limits on expansion. Following the ruling, the DNR issued a wastewater permit to Kinnard Farms Inc. that included a limit on herd size and a requirement for groundwater monitoring. Kinnard Farms filed a legal challenge in April 2022, and our clients, a group of neighbors, intervened in the case. According to a settlement announced on May 15, 2023, Kinnard Farms has agreed to withdraw its legal challenge and to stop spreading liquid manure. Scroll down to learn more.

RESOURCES

Wisconsin Supreme Court Ruling, July 8, 2021
Legal Brief Filed by MEA on March 10, 2021
Amicus Brief Filed by Wisconsin Environmental Health Network
Amicus Brief Filed by Food & Water Watch, Family Farm Defenders and Sustain Rural Wisconsin Network

Case Summary

The case began in October 2012 when 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 in the Town of Lincoln in Kewaunee County.

The 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. They 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.

The petitioners also understood that the fractured bedrock and shallow soils of Kewaunee County do not filter rain or runoff like other soils do. 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 were unsafe to drink from, 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 the neighbors 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 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. must 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.

Appeals

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 applies manure. Kinnard also filed a motion for a stay of Judge Boldt’s decision so they would not have to provide a groundwater monitoring plan for 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 subsequently denied 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, the 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 an animal unit limit 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.

Read the full Circuit Court decision (PDF).

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.

Once the case reached the Supreme Court, the Wisconsin Department of Justice filed a motion indicating that its position in this case had changed and that the Department supported the findings of the lower courts.

That good news was tempered by the Legislature’s request to intervene in the case. Republican lawmakers hired private attorneys paid for by taxpayers 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.

Supreme Court Victory

On April 12th, MEA Senior Staff Attorney Andrea Gelatt appeared before the Wisconsin Supreme Court and laid out a clear and compelling argument for DNR's authority to do what is necessary to protect water resources from agricultural pollution.

On July 8th, the Wisconsin Supreme Court issued a ruling that affirmed the DNR’s authority to include a requirement for groundwater monitoring and an animal unit limit in Kinnard Farms' wastewater permit. In response to the ruling, the DNR was required to revisit wastewater permits for Kinnard Farms and a number of other large CAFOs

2022 Permit Modification

On March 25, 2022, the DNR issued a modified permit for Kinnard Farms. The permit included conditions that protect water quality by limiting the farm’s ability to expand beyond its current size and requiring its owners to monitor groundwater quality in areas where large amounts of manure are spread.

Kinnard Farms Challenges Modified Permit

In April 2022, Kinnard Farms filed a legal challenge to the modified permit. Having lost the battle over the DNR’s broad authority to protect Wisconsin water resources, Kinnard Farms changed tactics. They argued that the specific permit modifications made by the DNR following the Supreme Court decision were “unnecessary, unreasonable and not supported by an adequate factual basis,” a claim that stands in stark contrast to the scientific findings presented by experts in the original case.

In September, Administrative Law Judge Angela Chaput Foy agreed to allow our clients, a group of six Kewaunee County residents, to intervene and participate as full parties in the contested case hearing initiated by Kinnard Farms.

2023 Settlement

According to the terms of a settlement announced on May 15, Kinnard Farms agreed to withdraw its legal challenge. The settlement requires Kinnard Farms to install manure processing technology developed by Sedron Technologies. When operational, the technology promises to eliminate the use of liquid manure on agricultural fields.

While the neighbors are hopeful the manure processing technology will function as intended, they say they aren’t willing to simply take Kinnard Farms' word for it. Due to the relatively new nature of the technology, as well as Kinnard’s history of compliance violations, our clients insisted that a clear timeline and strong provisions for ensuring transparency and accountability be incorporated into the final settlement. If Kinnard fails to meet the deadlines it has agreed to, it will be required to immediately begin monitoring groundwater quality—a condition of its 2022 permit—and reporting the results to its neighbors and to the DNR.