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DNR’s dairy farm plan approval may be headed to court

A Coloma man and a Madison nonprofit want further review of a $35 million farm project proposed for Adams County.

In a petition for judicial review filed in Dane County Circuit Court, Bob Clarke, a seasonal resident, and Family Farm Defenders Inc., allege the state Department of Natural Resources erred in its automatic approval of the dairy farm’s plans and specifications.

The DNR was forced to approve manure storage building plans offered by Kaukauna-based Milk Source Holdings Inc. because the 90-day review period and a 30-day mutually agreed upon extension had passed without a ruling from the agency.

According to state law, the DNR has 90 days to act on site plans related to water and sewage facilities. If it cannot complete its work in that time, the DNR can seek a mutually agreed extension, and failure of the department to act on the plans within that timeframe results in an automatic approval.

“The problem with the statutory approval is that when time runs out, we don’t have a choice, it becomes approved automatically,” said Thomas Mugan, wastewater section chief with the DNR.

Clarke and Family Farm Defenders’ petition alleges the project plans contain several design flaws, however, such as a failure to prevent wastewater runoff and spills, and ground and surface water pollution. Clarke said Family Farm Defenders hired consultants that could prove those points.

The proposed 4,300-cow dairy farm in Adams County would be built on about 125 acres. (Rendering courtesy of Milk Source; click to enlarge)

Tim Andryk, DNR chief legal counsel, said the department had requested the state Department of Justice assign an attorney to represent the agency on the issue. Andryk said the case eventually would be argued before an Adams County Circuit Court judge.

“We’ll respond with an answer and then the judge may set a briefing schedule to brief the issues or the judge may ask for a hearing in which we go over the issues with the judge,” Andryk said. “The response kicks off the process, and beyond that, I don’t know what the strategy is of the people suing us.”

The proposed 4,300-cow dairy farm would be built on about 125 acres of what is a potato farm, said Bill Harke, Milk Source spokesman. The farm would produce more than 50 million gallons of manure and wastewater a year, which the company plans to spread over 16,000 acres in the area, Harke said.

Site plans approved by the DNR include a waste storage pond and building, storm management pond and manure stacking pad.

Milk Source is not new to the planning and approval process that comes with a farm of this size, Harke said. The company operates three other Wisconsin farms — and a fourth in construction — ranging from 2,700 cows in Omro to 8,400 cows in Rosendale.

“We’ve done this before; we followed exactly the same pattern, taken the same precautions, the same pre-engineering work, same environmental study work as before,” Harke said. “We’re confident we’ve done more than is needed.”

In a June 24 letter to Milk Source, the DNR confirmed the statutory approval of the plans and specifications, a document that was signed by Mugan and Jeff Kreider, water resources engineer. The letter states that even though the plans had to be approved, the buildings still must be created and held to state standards that normally apply.

The DNR hosted a public hearing on the project July 18 in Adams County, which was after the department already had approved the site plans.

“There was no opportunity for public comment on that particular issue,” Clarke said. “And it was really a public relations presentation from Milk Source; it had nothing to do with water quality.”

The petition seeks further review of several elements of the proposal, he said, including “how the facility is built, how lagoons are built, how deep they are, how they are lined, how protected we are from spills and any catastrophe.

“We are committed to seeing this through,” Clarke said. “This dairy does not belong here and we will fight it.”

Milk Source still is going through the permitting process in the meantime. The company is waiting for Terry Kafka, wastewater specialist with the DNR, to issue a decision on its wastewater permit application. The wastewater permit specifically looks into ensuring the byproduct of the dairy, manure, will not contaminate local water.

“It’s very sandy soil there, so surface runoff is not a significant issue compared to potential infiltration through the soil system and groundwater contamination,” said Kafka, who expects to rule on the permit around Sept. 1. “We do not have authority over a lot of the concerns residents have such as odor, air management, lighting issues, noise issues and roadway use.”

Clarke said he believed the petition ultimately should move the DNR to block the dairy farm.

“We have a very good chance of doing that,” he said. “We feel strongly we have a case that will cause them to reconsider.”

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