By Ron Seely
Wisconsin Center for Investigative Journalism
An administrative law judge has ruled that “massive regulatory failure” led to groundwater contamination in a dairy farming region and that the Wisconsin Department of Natural Resources must take steps to prevent further pollution.
In a ruling issued Wednesday, Judge Jeffrey Boldt ordered the DNR to modify a discharge permit for Kinnard Farms, an industrial-sized dairy farm in Kewaunee County, by requiring the operation install at least six monitoring wells. Two of the wells should be on fields where manure is being spread, Boldt said.
DNR officials previously testified that no large, permitted dairies, also known as Concentrated Animal Feeding Operations, ever had been required to install monitoring wells.
Both sides in the dispute claimed victory after the ruling, which was in response to a challenge filed by five Kewaunee County residents.
The Dairy Business Association, a powerful dairy lobby, and the law firm that represented Kinnard noted that Boldt will let the farm expand after the DNR modifies the permit.
“We are pleased with the administrative law judge’s decision issued yesterday confirming that our client, Kinnard Farms Inc., was entitled to the permits the Wisconsin Department of Natural Resources issued for its dairy expansion,” said David Crass, a lawyer with Milwaukee-based Michael Best & Friedrich LLP, which represented the farm.
Boldt cited testimony from town of Lincoln residents who challenged the DNR’s approval of the permit, which would have let the farm expand its operation by about 55 percent, to 6,200 cattle producing more than 70 million gallons of manure a year.
According to testimony, Boldt noted, 50 percent of the tested private wells in Lincoln are contaminated, as are at least 30 percent of private wells tested in Kewaunee County. The wells tested positive for contaminants including nitrates and E. coli bacteria.
“The proliferation of contaminated wells represents a massive regulatory failure to protect groundwater in the town of Lincoln,” according to Boldt’s ruling. “The department needs to utilize its clear regulatory authority to require groundwater monitoring to enhance its ability to prevent further groundwater contamination.”
Lynda Cochart, one of the petitioners, praised the requirement for monitoring wells, which allow the tracking of pollutants.
“He obviously listened to our testimony and is concerned about our health and welfare,” she said. “It is unfortunate that we had to go through so much to get this result.”
Evidence points to CAFOs
Boldt, in his ruling, called the condition of the area’s groundwater a “crisis.” He cited testimony from residents who told of being sickened by polluted water and eating anti-diarrhea medicine “like it was candy.”
Evidence suggests that CAFOs are contributing to groundwater pollution, Boldt ruled.
“It is not unreasonable for residents to see a link to large farming practices in the area,” according to Boldt’s ruling. “It is more likely than not that some portion of this contamination is from CAFO landspreading in a county where, according to unrebutted public testimony, there are more than a dozen permitted CAFOs and vast areas of its farmland subject to landspreading contracts.”
Despite repeated requests from residents, the DNR had insisted monitoring was unnecessary for the farm because of sufficient protections in the permit.
On Thursday, DNR spokesman William Cosh said Boldt did not blame the DNR exclusively for the county’s growing pollution problem.
“When Boldt uses the broad term ‘regulatory failure,’ he declined to fault DNR over the county health departments and other regulatory entities shown in the record to play a role in safe drinking water,” Cosh said. “No one is disputing that groundwater is a problem in Kewaunee County. But Judge Boldt specifically refused to hold this permit or this permittee, or even the DNR, accountable for that.”
Cosh said Boldt instead was referring to the body of regulation as a whole being inadequate.
In his ruling, however, Boldt faulted the DNR for failing to use laws that are in place, such as statutes that give it the authority to require monitoring wells in regions that are more susceptible to pollution because of the underlying geology.
Kimberlee Wright, executive director of Midwest Environmental Advocates, the law firm that represented the five residents who challenged the Kinnard permit, said Boldt was referring at least in part to DNR regulatory failings.
“Ultimately, citizens shouldn’t have to sue their own government to enforce laws that protect our water,” Wright said. “Citizens can’t challenge every permit to get the DNR to do what it takes to keep nitrates and bacteria out of their drinking water. This is what regulatory failure looks like.”
Some claims denied
Boldt did not support the residents in their claim that the CAFO permit was issued before the agency had received and approved plans for the expansion. Nor did he support their challenge of the farm’s manure-management plan.
Cosh noted that about 200 small farms operate in the county and are not required to file manure management plans.
Boldt’s Kinnard ruling represents the third time he has at ruled on CAFO-related challenges this fall.
He has ordered the DNR to consider the broader environmental impacts of high-capacity wells sought by the Richfield Dairy in Adams County, and he supported the DNR when New Chester Dairy, also in Adams County, challenged an order from the agency for monitoring of groundwater levels.
On Oct. 22, a coalition of environmental groups petitioned the U.S. Environmental Protection Agency to use its emergency authority under the Safe Drinking Water Act to investigate drinking water pollution from dairy manure in Kewaunee County.
James Saul, an environmental lawyer with the Madison law firm McGillivray Westerberg & Bender LLC, which has been involved in actions challenging the permitting of large farms, said the combined effect of Boldt’s recent rulings will be far-reaching.
Saul’s firm was not involved in the Kinnard case, though he formerly worked for Midwest Environmental Advocates.
“I think we’re starting to see some substantial policy changes in the way the DNR regulates agriculture,” Saul said, “especially in the areas of the state that are vulnerable, like Kewaunee County.”
Boldt acknowledged what concerned residents and many hydrogeologists have been saying for some time: The areas of the state with fractured karst geology deserve extra protection from the huge volumes of manure produced by farms. The fractures in such bedrock allow excessive amounts of liquid manure to more easily reach groundwater.
Saul backed that acknowledgement.
“Should it be standard practice to have groundwater monitoring in karst areas?” he said. “I think the answer is now ‘yes.’”