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DNR lets ruling stand on dairy’s water permit

DNR lets ruling stand on dairy’s water permit

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By Kate Golden
Wisconsin Center for Investigative Journalism

Wisconsin Department of Natural Resources Secretary Cathy Stepp recently declined a large dairy farm’s request that she overturn an administrative law judge’s ruling on its water-discharge permit.

Among those watching the case for potential statewide effects are rural residents, groundwater advocates and farmers, including Kinnard Farms co-owner Lee Kinnard, whose permit is at issue.

“It doesn’t affect Kinnard Farms. This affects the dairy industry,” Kinnard said. “This is much bigger.”

Kinnard said the judge had “way overstepped his bounds” and based his ruling on “nonfact.” Asked whether he would appeal the ruling in circuit court, Kinnard said, “We are absolutely exploring our options.”

The Kewaunee County farm plans to expand by 55 percent to about 6,200 cattle. But neighbors challenged its permit. They wanted the DNR to impose groundwater monitoring and a cap on the number of cattle.

After a four-day hearing including testimony from both sides, Judge Jeffrey Boldt ordered those conditions. In his Oct. 29 ruling, Boldt blamed widespread well pollution in the area on what he called a “massive regulatory failure.”

A lawyer for Kinnard at the time praised the decision for upholding the farm’s expansion.

But on Nov. 20, Kinnard, represented by the Madison law firm Michael Best & Friedrich LLP, asked Stepp to “correct” the judge’s ruling, saying the agency lacked the legal authority to impose such permit conditions.

Stepp criticized Boldt for “editorializing” in his ruling.

“We have worked with him on farm issues before and usually find him to be very fair,” she said, according to Wisconsin Ag Connection. “I did not expect his comments that question our authority when it comes regulating groundwater contamination.”

Both sides said they agree the case could affect how the state regulates large dairy farms.

Sarah Williams, an attorney from the Madison-based law firm Midwest Environmental Advocates Inc., which is representing the neighbors, filed a letter last week urging the secretary to deny Kinnard’s request.

According to the letter from Williams, Kinnard’s request amounted to “a collateral attack on … any DNR-issued final permits that contain the requirements that Kinnard finds so offensive.”

According to Stepp’s written denial of the request, the problems Kinnard raised were more appropriate for circuit court.

Responding to Stepp’s denial for review on Tuesday, Williams praised Stepp’s decision not to wade into the debate and agreed with her assessment.

“In the meantime,” Williams said, “Kinnard Farms Inc. cannot avoid complying with the judge’s order and developing a groundwater monitoring plan.”

Stepp’s action appears to stick with precedent. The DNR has denied all of the nearly three dozen such petitions it has received since the late 1980s, according to the department’s case log.


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