November 20, 2014

Kewaunee mega-dairy asks DNR secretary to overrule judge’s permit modifications

Kinnard Farms Inc. this week asked the Wisconsin Department of Natural Resources to “correct” a judge’s ruling that required the DNR to modify the dairy farm’s water permit and was intended to strengthen groundwater protections in the polluted area.

Dairy farmers, rural residents and groundwater advocates are among those watching the case for potential statewide impact.

Five of Kinnard’s neighbors last year challenged the farm’s water discharge permit application, which would allow the farm to expand by 55 percent, to about 6,200 cattle. They asked Administrative Law Judge Jeffrey Boldt to force the DNR to require groundwater monitoring and cap the number of cattle in the permit.

Boldt did so. In his ruling, Boldt blamed widespread well pollution in the area on what he called a “massive regulatory failure.”

At the time, a lawyer for Kinnard praised the decision, noting that it confirmed the farm could expand.

However, DNR Secretary Cathy 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.

On Tuesday, Kinnard’s lawyers from Michael Best & Friedrich petitioned Stepp to suspend and reverse the groundwater monitoring and the animal unit cap.

“In ordering DNR to impose these two requirements, the ALJ (administrative law judge) ranged far outside the scope of his legal authority,” the petition states. “The secretary now has the opportunity to correct this error and to direct her staff to not comply with these unlawful aspects of the ALJ’s order.”

The petition goes on to say that such requirements should not be included in any other large farms’ water permits, either, unless the Legislature passes a law or expressly approves an administrative rule.

Stacy Harbaugh, spokeswoman for Midwest Environmental Advocates, a Madison-based nonprofit law firm representing the neighbors, sent this statement:

“Considering that the secretary is appointed by the newly re-elected governor, we hope that this will not become a political decision. Rather, we hope that the decision of the judge — an impartial decision-maker — will be allowed to stand (of course, subject to further judicial review).”

According to MEA, the secretary has 14 days to grant or deny the request for review. If granted, there could be more hearings or briefs filed. If denied, the parties can still challenge Boldt’s ruling in circuit court.

Read the text of the petition and the judge’s ruling here:


Catch up on the Center’s previous coverage of this issue:
Judge blames toxic Kewaunee County wells on ‘massive regulatory failure’

Disputed expansion of dairy watched for statewide impact

Mega-dairy’s growth plans hotly debated

Environmental groups ask EPA to study drinking water pollution from Kewaunee County dairies

Surge in big dairies backdrop for local efforts to curb cows’ environmental impacts