November 25, 2014

After criticizing judge, DNR secretary declines to ‘correct’ ruling on Kewaunee dairy water permit

Wisconsin Department of Natural Resources Secretary Cathy Stepp on Tuesday 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 impact 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 “non-fact.” Asked whether he would appeal the ruling in circuit court, he 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, 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. I did not expect his comments that question our authority when it comes regulating groundwater contamination,” she told the Wisconsin Ag Connection.

Both sides 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, which is representing the neighbors, filed a letter this week urging the secretary to deny Kinnard’s request.

She wrote that it amounted to “a collateral attack on … any DNR-issued final permits that contain the requirements that Kinnard finds so offensive.”

Stepp wrote in the brief denial that the issues Kinnard raised were more appropriate for circuit court.

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

“In the meantime,” she 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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