In a Green Bay hearing beginning Tuesday, a controversial attempt to expand a dairy farm set to become the fifth largest in Wisconsin will be challenged in a case that could have a far-reaching impact on how Wisconsin regulates industrial-size livestock farms.
Five neighbors of Kinnard Farms Inc. in northeastern Wisconsin are arguing that the state Department of Natural Resources should allow the farm to expand but tighten environmental protection by requiring surface and groundwater monitoring and limiting the number of cows.
The neighbors, represented by the Madison-based environmental law firm Midwest Environmental Advocates, allege that the DNR has permitted Kinnard’s expansion without assuring that the farm’s discharges would meet state water quality standards or allowing sufficient public input.
“It’s a big test case for all of us,” said Bob Clarke, a founder of Friends of the Central Sands, an environmental advocacy group that is suing for water quality and quantity monitoring at Richfield Dairy, a large farm in Adams County.
The DNR is defending its approval of the Kinnard Farms permit, which will allow the farm to grow by 55 percent — from 5,627 to 8,710 animal units, about 6,200 cattle. The farm, classified as a concentrated animal feeding operation, or CAFO, because of its large size, is located in Kewaunee County in the town of Lincoln.
Gretchen Wheat, the DNR engineer who led a review of the farm’s plans, said in written testimony that its design will be “among the most protective designs of any CAFO in the state.”
The petitioners contend that the permit’s standards are not explicit enough.
“Numeric limits are the only limits that are enforceable,” said Byron Shaw, an emeritus University of Wisconsin professor and soil and water expert, in written testimony for the petitioners.
The Kinnard and Richfield cases are among the first challenges to CAFO permits thus far, said Mary Anne Lowndes, the DNR’s runoff section chief. The DNR has never turned down a permit.
Case ‘could potentially change things’
DNR officials said the two cases could help clarify the limits of the agency’s power to impose conditions on CAFOs.
The Kinnard outcome “could potentially change things for the future, if they find that our permitting process isn’t strong enough to protect the environment,” said Casey Jones, a DNR agricultural runoff specialist for northeastern Wisconsin.
The state requires CAFOs to apply for five-year permits. The farms submit plans to show how they will deal with manure — Kinnard proposes it will produce up to 70 million gallons a year — without polluting water. Other impacts such as dust, smell, traffic, road impacts or noise are not covered by the permit.
Both sides agree the case has worsened division among residents.
“We’ve reached out to some of the people who really have issues with the way we farm. It hasn’t been successful,” co-owner Lee Kinnard said.
“I think this case reflects the feelings and frustrations that people have had for a long time regarding permits that aren’t protective of the environment,” MEA staff attorney Sarah Williams said.
The state’s main dairy lobbying group, the Dairy Business Association, did not respond to a request for an interview.
Administrative law Judge Jeffrey Boldt will preside over the contested case hearing, in which each side presents witnesses for cross-examination and rebuttal, scheduled for Tuesday, Feb. 11 through Friday, Feb. 14. The public will be able to comment at 5:30 p.m. Wednesday.
As CAFOs multiply, so do worries
Since 2000, the number of Wisconsin dairy CAFOs has more than quadrupled and now stands at 222 facilities. About 30 more applications are pending, according to the DNR.
Kewaunee County, with 14 permitted dairy CAFOs, has some of the densest livestock farming in the state. At the same time, its landscape of thin soils over porous karst bedrock is particularly vulnerable to groundwater pollution.
Opponents of the Kinnard expansion say the state’s regulations and enforcement have been too weak to protect their water.
They provide pictures of manure-tainted water flooding houses, or runoff streaming across people’s properties. They mention Casco Creek, in other sections a blue-ribbon trout stream, now running brown instead of clear.
They point, also, to the town of Lincoln, where half the wells have tested unsafe for nitrates or bacteria and hormonal water has been found in some wells. The source of contamination is often unclear and can include leaky septic systems or bad well caps, but University of Wisconsin researchers have estimated that 90 percent of nitrate contamination comes from farms.
Some wells, like neighbor and petitioner Lynda Cochart’s, have been found with the bacterium E. coli, which indicates human or animal waste.
“My granddaughter, I don’t even let her wash her hands in the water,” Cochart said. “I make her use boiled water — there’s always two kettles of boiled water on my stove.”
DNR officials say that the proposed Kinnard’s expansion to a second site is the wrong arena for a battle over the environmental effects of CAFOs.
“I very much support efforts to reverse those problems, but I do not agree those problems can be used as a technical or legal basis to say that Site 2 should be singled out for even more stringent requirements,” said Gretchen Wheat, the lead review engineer for the DNR’s CAFO program, in written testimony.
Kinnard declined to discuss details of the case, before the hearing, but said his third-generation farm was committed to protecting the environment. He himself lives in the front yard of his dairy, he said.
“Doing anything that would in any way jeopardize our community and our resources would be very self-destructive,” Kinnard said. “We love and we live in this local community. We take our responsibility very, very seriously.”
Back to top
• story continues below •
Karst in northeastern Wisconsin: A photo gallery
No monitoring system needed?
No one disputes the groundwater’s vulnerability.
But Kinnard’s experts and the DNR say the particular area slated for Kinnard’s expansion did not signal a need for a detailed karst analysis or a groundwater monitoring system.
Kewaunee County conservationist Andy Wallander called such systems a “very good idea” for CAFOs, but said they are expensive, complex and have rarely been required.
“If there is monitoring, it should be on all CAFOs,” he said. “I don’t know how successful it would be if it’s required for one operation.”
Kinnard said his opposition to monitoring was not about the expense.
“It’s much more an efficacy thing,” he said. “What is to be gained by the data?”
The DNR has required monitoring systems at a handful of operations, including the Rosendale Dairy in Fond du Lac County, and the New Chester Dairy in Outagamie County, after defeating a lawsuit brought by the dairy.
No cow cap
The petitioners argue the DNR improperly approved the permit before it knew all the details of the Kinnards’ plans. As a result, they say, the public had too little time to comment on those details.
The DNR does not dispute the timeline. But officials testified that it is reasonable to approve permits before seeing the full plans, because the agency can always modify the permit.
Another beef is that the DNR permit does not limit the number of animals, which is directly tied to the amount of manure, Williams said.
DNR officials said the agency has no authority over the number of animals.
Tom Bauman, agricultural runoff program coordinator, said a more relevant indicator is the amount of manure, which the CAFO reports in its nutrient management plan.
Williams said a 2010 incident illustrates the importance of counting cows. Kinnard was cited in 2010 for overfilling a manure storage lagoon. That year, the farm also reported to the DNR that it lacked a required marker gauging six months’ worth of manure, according to Williams.
“The way they expressed that in their annual report was that the number of animals on site was fluctuating, so they weren’t exactly sure how much storage they needed for 180 days,” Williams said.
Some citizens care about the herd size because they think Kewaunee County already has too many cows.
“We are full,” reads the blog Restore Kewaunee, written by resident Robyn Mulhaney.
But that is not under the DNR’s control either, the agency says.
“We can’t really tell a facility where they can build and where they can expand,” Jones said. “All we can do is review the information they provide to us to ensure that they have enough storage and viable land space.”
Market pressures are already limiting and will continue to limit CAFO expansion, she said.
“Rent prices of land, how far do they want to truck the manure — ultimately it’s going to limit expansion,” she said. “In southwest Brown County, most of them know they can’t expand.”
Compliance picture varies
Petitioners said Kinnard’s past environmental violations call for extra care with the permit.
But whether Kinnard is a good neighbor depends on who’s talking.
The farm has received three notices of noncompliance, the least serious level of offense, since 2010 for land spreading violations, as well as the 2010 notice of violation for its manure lagoon overflowing.
Other complaints have gone unverified. In one 2012 incident, a neighbor sampled E. coli in runoff going to a culvert leading to a creek and called the DNR to confirm the results. An agency staffer took a sample that did not arrive at the lab in time for it to be valid.
In another incident, which did not result in a citation, Kinnard was improperly distributing sand-laden manure — sand is used for cow bedding — to a businessman who was using it to cover septic mound systems, according to a letter from the DNR to the farm.
Jones said notices of noncompliance “aren’t uncommon,” and added, “They do seem to be very proactive and want to be a good neighbor, want to be a good farmer and manage things properly.”
County conservationist Wallander said the complaints about Kinnard may simply indicate the extra scrutiny it has received from neighbors.
“Let’s just say I’ve seen worse,” he said.
Petitioners said they lacked confidence in the DNR’s oversight of large farms.
They said an earlier version of Kinnard Farms’ nutrient management plan indicated that the company had consent from Lynda Cochart — the petitioner — to spread manure on a parcel of her land.
Cochart’s reaction: “Absolutely not.”
Neighbors move out
After Kinnard unveiled a desire to expand, two families neighboring the CAFO sold their land to Kinnard — including one family that was originally a petitioning party in this case and has since dropped out. (The Kinnard family declined to talk about property deals with neighbors before the hearing.)
Another neighbor, the family of Ericka and Dan Routhieaux, also withdrew hoping for the same outcome. They do not relish raising their three young children next to Kinnard Farms; a future wastewater filtering area is next to their property, according to Ericka Routhieaux. They want to move.
She said the Kinnards told her that if she and her husband stayed in the case, “there would never be an offer ever in the future.”
“So we panicked,” she said, and bowed out.
But the Kinnards did not make them a new offer, she said.
Now Routhieaux feels she has little to lose and may speak at the hearing.
“Everybody believes it is going through, but I guess we want to fight to the end,” she said.
A community divided
The contrast is stark.
Cochart said her neighbors come to her now with the complaints they are afraid to call in. But she has little faith in the system.
“People are getting aware that we have to look out for our health and well-being ourselves,” Cochart said. “We have to watch what they’re doing that’s going to hurt our families.”
Kinnard said he believes the controversy stems from farmers failing to communicate their stewardship efforts.
“We’re very confident on the way this facility has been designed. We’re very confident of our nutrient management plan. I’m really looking to having the other side of that story heard,” he said.