Editor’s note: The following is from a Dec. 30, 2014, email. The author, Bob Clarke, is founder of Friends of the Central Sands (FOCS) in Coloma, Wisconsin. Among other efforts, the group has been fighting to preserve waterways by fighting against a proposed Concentrated Animal Feeding Operation (CAFO) in Richfield, Wisconsin. Coloma is a village in Waushara County in central Wisconsin.
By Bob Clarke
Well, 2014 is coming to a close, and what a busy year it has been!
Again, congratulations to you. After nearly four years in court, our legal fight concluded successfully. Because of your support, FOCS prevailed in our legal argument that the cumulative impact of high-capacity wells must be considered when issuing new pumping permits. This has significant bearing across the entire state. And you played a part in this victory! But now, we need your help. This success required significant resources. Our efforts, to date, have cost more than $350,000. So while we celebrate victory, we are also left with tens of thousands of dollars in outstanding bills. Will you please consider a tax-deductible donation to help us pay for these costs? Please donate here: http://www.friendsofcs.org/.
Our support comes only from individual donations. We do not have access to any other means of financial support, so we count on anyone who enjoys clean and abundant water.
So much more has happened as well. The judge also ruled in favor of additional water monitoring at another CAFO site. We also rallied to let the DNR know we do not accept alternative concentration limits for nitrates at the nearby Burr Oak Heifers CAFO (formerly Opitz), and the DNR heard us! Board members of FOCS have also been very active with Trout Unlimited and other groups. FOCS was recently joined by more than 25 other organizations (including the Sierra Club, Clean Wisconsin, Trout Unlimited, Wisconsin Lakes and others) as we led a formal protest over the nomination of Milk Source to receive the Aldo Leopold Conservation Award given by the Sand County Foundation. With many more activities and educational opportunities planned for 2015, it is shaping up to be a very busy year.
For those of you who missed the last update, below is a summary of our court victory:
Following a three-week hearing and a four-year struggle, Administrative Law Judge Jeffrey Boldt handed FOCS a historic victory on Sept. 4 when he ruled that the Department of Natural Resources must take into account the cumulative impacts of groundwater pumping when considering new high-capacity well permits.
The ruling in a case brought by FOCS and others challenging a well permit for the proposed Richfield Dairy CAFO in Adams County reduced the amount of water the dairy could pump in one year and capped the number of animals that could be kept there.
Judge Boldt’s decision has important implications in a continuing fight to protect our natural resources from the dire threats posed by factory farming, not only in the Central Sands region, but all over Wisconsin. In the following series of questions and answers, I discuss just how the ruling affected that fight:
Q: What did we win?
A: There were several challenges against the DNR’s permits for the Richfield CAFO. We were hoping to secure additional water monitoring on site as well as water monitoring at the fields where the spreading of the waste would occur to ensure that our surface and groundwater was protected. Unfortunately, the judge felt the standards already in place are adequate. While this may be true, enforcement of these standards is another question.
However, we did win on the larger issues! The judge lowered the amount of water allowed to be pumped at the site that was permitted by the DNR by 20 million gallons. He also stated the DNR must now put a cap on the number of animals that can be at this site based on the lower water amount. A cap on the number of animals is something the DNR just doesn’t do. This ruling changes that.
The big win, however, is that the judge, in his 25-page ruling, took the DNR to task for ignoring its own scientists by not taking the cumulative effects of high-capacity wells into consideration when permitting another one. The DNR, while acknowledging that the cumulative effects of pumping has caused damage to our resources, took a very narrow view of its authority to regulate these wells. This is a game-changer for the entire state. The judge upheld the premise that the waters of the state are a right guaranteed under the Public Trust Doctrine in the Wisconsin Constitution and that the DNR has a duty and responsibility to manage this resource appropriately.
Q: What can’t Milk Source do now as a result of the ruling that it had wanted to do?
A: Technically, the Richfield CAFO can now be constructed. However, it must be sized to the lower water amount and will not be able to expand. This, of course, was a huge concern. Milk Source has a history of seeking a permit for a CAFO at, say, 4,300 animal units and, once approved, it quickly doubles the size, as it did at the New Chester CAFO just south of us.
Q: What other issues were decided in our favor?
A: The cap on animals is a huge precedent, and the cumulative impact decision is of major significance. In addition, the Wisconsin Pollutant Discharge Elimination System (WPDES) permit was interpreted differently by the DNR and Milk Source. We had asked for restrictions on the spreading of waste in winter when the ground is frozen and plants do not use the nutrients, which results in more runoff. While the judge didn’t address our request, he did side with the DNR (and us) that the permit, as granted, does not allow for winter spreading to the disagreement by Milk Source.
Q: The new pumping limit is 52.5 million gallons a year. Is that still too much for the health of the water table near the Richfield CAFO?
A: The judge felt that the 52.5 million gallon number was a compromise, allowing the CAFO to be built while at the same time protecting the water. Our experts, however, did testify that even at this number, there is a negative impact on Pleasant Lake and the surrounding streams, such as the headwaters of Chaffee Creek. We would have preferred a lower number. However, this restriction is the first of its kind and severely impacts the size of the potential CAFO.
Q: What about the legislature? The ruling says the DNR must take into account cumulative effects of groundwater use, but state budget language says future wells can’t be challenged on that basis. Is this just a one-time victory, or can it be useful in other cases? Might the legislature revisit the issue?
A: The judge’s decision made it clear that the Wisconsin Constitution and the Public Trust Doctrine required the DNR to manage the waters of the state as a benefit for all. This makes it a bit more difficult to simply undo the decision through legislative action. However, you can rest assured that the legislature will try again in the spring. This can be done a number of ways, such as limiting authority of the DNR, removing budgets to fund protection, or others yet to be understood. This decision is a major one affecting all high-capacity wells in the state, whether they be for CAFOs, agriculture, mining or municipalities.
Q: What did they win? A pro-CAFO website called “Dairy Herd” spun this ruling as removing a major obstacle to construction of the dairy, citing the approval of the WPDES permit and the well permit. It said the judge concluded that the dairy should be allowed to move forward. Is this a correct interpretation?
A: Technically, yes. However, Milk Source must “right size” the CAFO to the lower pumping amount, and since the amount is effectively capped, it cannot expand. We were hoping for tighter restrictions on the actual construction specifications and water monitoring, but we did not prevail. The industry has made it clear that they do not want any restrictions on anything. Our successes have a significant impact across the entire state.
Q: Will the DNR or anyone else appeal the ruling?
A: The case could have been appealed to the DNR secretary 20 days following the decision and to the circuit court 30 days following the decision. Neither the DNR nor Milk Source, however, appealed, so the decision stands in our favor.
Q: What’s next? Are there other court tests on the horizon? Is FOCS just waiting to see how Milk Source reacts, or is it planning other proactive moves?
A: This is a very difficult issue for me. In many ways, it is the end. For us, it has been four years in the making. If it is appealed, of course it will continue in the courts for some time. We are truly disappointed that the CAFO can technically be constructed at all, but that wasn’t our focus, as it would have been a very difficult effort.
There have been other decisions that have occurred that are also having significant impact. You may recall that we won an appeal last December that the DNR’s Environmental Assessment (EA) was inadequate. The DNR has now completed its new, broader Environmental Impact Statement (EIS). There was a hearing on this in mid-October. What we are trying to ascertain is how, if the underlying EA wasn’t adequate, can the WPDES permit even be valid? There are many legal issues surrounding that question that we are working through.
In addition, one week after our decision, Judge Boldt made another important ruling. The DNR (most likely because of our pressure in the Richfield case) has required that Milk Source conduct additional water monitoring at the New Chester CAFO site. Milk Source disagreed and, ironically, sued the DNR over this (while siding with the DNR in our case). The judge ruled in favor of the DNR, and now Milk Source is saying that it is unfair to them. Go figure.
Q: What can people do to help? Donations? Letters to the DNR or to state legislators? Any suggestions?
A: Ultimately, the only way to stop this onslaught is through our legislators and the governor’s office. Unless the emphasis on business at any cost is changed, we will all see a continued deterioration of our natural resources. This is not a partisan issue. It cuts across all parties. But we must make our voices heard to turn the tide. The DNR Secretary used to be an independently appointed position, but is now appointed by the governor. As such, the agency is an extension of that office.
Yes, policy changes are required, but so are our education, legal and advocacy efforts. We are not done, as there is so much yet to do. Your support will not only help pay our bills for the legal challenge, but will allow us to continue to protect our resources.
Please consider a year-end tax-deductible donation to help us pay for these costs. Please donate here: http://www.friendsofcs.org/.
Have a wonderful New Year!
— Your friends at Friends of the Central Sands
From the Jan. 7-13, 2015, issue