‘A Massive Regulatory Failure to Protect Groundwater’

A two-year legal battle about expansion of Kinnard Farms’ concentrated animal feeding operation (CAFO) in the Town of Lincoln in Kewaunee County resulted in Administrative Law Judge Jeffrey Boldt declaring that there has been “a massive regulatory failure to protect groundwater” in Kewaunee County.

On Oct. 29, Boldt, of the Wisconsin State Division of Hearings and Appeals, issued his decision in the water pollution permit challenge by five residents of Kewaunee County against the state Department of Natural Resources, the agency responsible for regulating CAFOs and protecting groundwater. The court decision spotlights the widespread groundwater pollution problems in an area of Wisconsin with the highest concentration of industrial livestock facilities.

Boldt’s decision includes placing a cap on the number of “animal units” allowed at Kinnard and requiring that the farm install at least six groundwater monitoring wells. Boldt’s ruling, however, did allow for the expansion at the farm.

“Several witnesses testified that up to 50 percent of private wells in the Town of Lincoln are contaminated and that as many as 30 percent of wells had tested positive for E. coli bacteria. No witness for the dairy or the DNR disputed these numbers,” Boldt wrote in his decision. “Many public comment witnesses suggested a plausible and even likely connection between the large numbers of CAFOs in the county and area and well-known problems with groundwater contamination. Numerous witnesses testified credibly and forcefully about the hardship and financial ruin that well water contamination has had on their businesses, homes and daily life.”

“Those poor people have fought for two years to get their own government to do its job,” said Kimberlee Wright, executive director of Midwest Environmental Advocates (MEA), which represented the five Town of Lincoln residents – Lynda, Amy and Chad Cochart, Roger DeJardin and Sandra Winnemuller.

“They deserve this kind of win. Ever since the livestock siting law that took local control away, it’s been an uphill battle to find accountability,” Wright said. “So they really need this win. Public health was at the center of this problem and this argument. We’re not talking about inconveniencing some business here; we’re talking about protecting citizens. Whoever is elected governor, they own this. They’re the ones that appoint the (DNR) secretary. We need to start making them own it if these systems fail this badly. I think we need an emergency commission to look at the problems in the DNR. The stuff we work with is pollution in the air and in the water we drink. That’s really serious. Citizens should not have to bring a lawsuit against the state agency that regulates these activities. That’s just crazy.”

The week before Boldt’s decision was announced, the Midwest Environmental Advocates joined six other groups, including Kewaunee Cares, in petitioning the U.S. Environmental Protection Agency to exercise its emergency powers under the Safe Drinking Water Act to investigate the groundwater crisis in Kewaunee County, “because, clearly, our own state government isn’t doing anything,” Wright said. “The EPA’s already been in the area and done some enforcement that the DNR wouldn’t do. We are hopeful that they will at least put some heat under the DNR to do their job. It’s a waste of everybody’s time and money to have to sue people to have existing laws enforced and the duties of the DNR to be discharged properly, but if that’s what we have to do, that’s what we have to do.”

“Kewaunee Cares believes this is a good decision for the petitioners in the Town of Lincoln and for all citizens of Kewaunee County,” said Kewaunee Cares member Lynn Utesch. “Judge Boldt’s acknowledgement of vast groundwater contamination in our county, and the DNR’s ‘massive regulatory failure’ vindicate what Kewaunee County citizens have been saying for over a decade regarding the continued degradation of our water, now categorized as ‘that of a third world country.’ We hope that Judge Boldt’s decision will result in greater vigilance by the DNR to respond with measurable enforcement and fines for the polluting entities in our county. Groundwater monitoring and animal caps should be a part of CAFO permits throughout the state of Wisconsin.”

“The DNR has a very difficult job and takes its responsibilities very seriously,” said DNR spokesman Bill Cosh. “The DNR operates within the authorities that it has under the laws of the state and those delegated to it by the federal government. Some are frustrated because they want the department to go beyond our legal authority. The petitioners in the Kinnard contested case were making such a request for the department to go further. Judge Boldt generally affirmed that the department was acting within its authority. We read Judge Boldt’s comment as a statement that he believes that the regulatory authorities do not go far enough in his opinion.”

A request for comment from Kinnard Farms went unanswered.

So what now?

“For one thing, the livestock siting rule, which, by the way, was put into law by the Democrats, which took local control away when it comes to siting these large industrial dairies, local people just don’t have a say. That has to go and it’s under review right now,” said Wright.

The livestock siting rule must undergo statutory review every four years, and this is the year for review. The Livestock Siting Technical Review committee – made up of experts in the areas of nutrient management, odor and engineering – held its first meeting Sept. 18. The next scheduled meeting is Nov. 18in Madison. The meetings are open to the public but there is no public comment period until the review committee issues its final report.

“We have a lot of work to do,” said Wright. “There are 15 CAFOs in Kewaunee County. After fighting a very expensive legal battle, one of them has to monitor groundwater. Government has to start working.”