Permit Conditions on High Capacity Wells

This page will be dedicated to keeping interested parties informed about the state of the Great Lakes Legal Foundation’s challenges to the Department of Natural Resources’ high capacity well regulatory regime. Currently, Department bureaucrats and administrative law judges are imposing unlawful permit conditions on high capacity well applicants which is creating business uncertainty in Wisconsin.

New Chester Dairy, Inc. v. DNR

New Chester Dairy is the newest case the Great Lakes Legal Foundation has taken on, intervening on behalf of Wisconsin Manufacturers and Commerce, Dairy Business Association, Midwest Food Processors and Wisconsin Potato & Vegetable Growers Association. The Great Lakes Legal Foundation’s goal in this case is to protect the intervenor members from invalid conditions like those being imposed on New Chester Dairy (New Chester), make Wisconsin Department of Natural Resources (DNR) follow the law when regulating high capacity wells, and highlight the backlog of high capacity well permits that are forcing Wisconsin businesses to look for opportunities elsewhere.

In the spring of 2012, New Chester Dairy (New Chester) sought approval by DNR to modify its Wisconsin Pollutant Discharge Elimination System (WPDES) permit to increase groundwater withdrawals to accommodate an expansion in the number of cows at the facility. During the modification process, DNR notified New Chester that this increased withdrawal may impact Patrick Lake in Adams County. New Chester offered to find a more appropriate site to place the wells to mitigate or eliminate the impact on surface water if necessary. After a comment period DNR conditioned the approval of the modification on New Chester installing groundwater monitoring wells at three different locations to collect and compile certain data from the wells and provide it to DNR. New Chester objected to the imposition of these conditions and requested a contested case hearing.

New Chester sought review of the Monitoring and Reporting Condition and was granted a contested case hearing. New Chester and DNR both filed motions for summary judgment. New Chester’s motion was denied and DNR’s motion, arguing that it had authority to impose the condition, was granted. The ALJ’s Finding of Fact, Conclusions of Law, and Order further affirmed that DNR has a general duty and authority, under the public trust doctrine through Wis. Stat. §§ 281.11 and 281.12, to impose the condition in the permit modification to protect the waters of the state and that the condition was reasonable and supported by substantial evidence. New Chester appealed to the Outagamie County Circuit Court. Where the case currently sits.

New Chester and the Great Lakes Legal Foundation have submitted their opening briefs in the case. Clean Wisconsin, another intervenor, has submitted its Reply Brief. The Department of Justice, currently representing DNR, has requested a temporary stay of the briefing schedule which Outagamie County Judge McGinnis has granted.

During the time in which the briefing schedule was stayed the Wisconsin Department of Justice has refused to continue to represent DNR. Governor Walker has given DNR permission to represent themselves through their agency counsel, and DNR has decided not to file a response brief. The Great Lakes Legal Foundation filed its reply brief to Clean Wisconsin on Friday, July 25th.

Judge Mark McGinnis of the Outagamie Circuit Court issued his decision and order on December 2, 2015. The court held DNR did not have explicit authority to place the monitoring condition on New Chester Dairy. Since the creation of Wis. Stat. § 227.10(2m) DNR cannot rely on “implied authority” to impose conditions on permits. Therefore DNR did not have authority to impose the monitoring condition on New Chester Dairy. Judge McGinnis reversed the administrative law judge’s decision and remanded the permit to DNR for removal of the monitoring condition.

Documents:

Outagamie Circuit Court Decision and Order, December 2, 2015.

Great Lakes Legal Foundation Press Release, November 12, 2015.

Outagamie Circuit Court Hearing Transcript, November 12, 2015.

Great Lakes Legal Foundation Reply Brief, July 27, 2015.

New Chester Dairy Reply Brief, July 27, 2015.

Clean Wisconsin Response Brief, May 28, 2015.

Great Lakes Legal Foundation Opening Brief, April 6, 2015.

New Chester Dairy Opening Brief, April 1, 2015.

Court Grants Businesses’ Request to Join Lawsuit to Stop DNR’s Effort to Impose Unlawful Permit Conditions, Press Release, Great Lakes Legal Foundation, February 19, 2015.

Great Lakes Legal Foundation Reply Brief to Response Briefs of WDNR and Clean Wisconsin in Opposition to Motion to Intervene, February 2, 2014.

Clean Wisconsin Brief in Opposition to Motion to Intervene, December 19, 2014.

WDNR’s Brief in Opposition to Motion to Intervene, December 4, 2014.

Great Lakes Legal Foundation Brief in Support of Motion to Intervene in New Chester Dairy v. Wisconsin Department of Natural Resources and Clean Wisconsin, November 10, 2014.

Department of Natural Resources is Violating 2011 Act 21 by Imposing Unlawful Conditions for High Capacity Well Permits

Kinnard Farms, Inc. v. DNR

Kinnard Farms is a CAFO located in Kewaunee County, WI. It is looking to expand its operation in the area and in order to do so it applied to DNR for a reissuance of its WPDES permit and for approval for its design plans on its new facility. Its WPDES permit was reissued and is expansion plans conditionally approved. However Midwest Environmental Advocates, through five individual petitioners, requested a contested case hearing to challenge the several portions of the WPDES permit. Their rational for the request centered around the contamination of Kewaunee County groundwater, allegedly due to the spreading of cow manure.  The petitioners were granted a contested case hearing on seven issues, one of which was decided on summary judgment. A hearing was held in Green Bay and the remaining six issues were to be decided by ALJ. The two issues of note are whether sections of the WPDES permit are unreasonable because they do not require monitoring of groundwater and whether or not the permit is unreasonable because it does not include a limit on the proposed number of animal units (AU) in the facility.

In the Finding of Facts, Conclusion of Law, and Order the ALJ admitted, “no applicable rule or statute requires a WPDES permit to specify a number of animal units at a CAFO facility.” However despite admitting he had not statutory authority he still held “the permit should be modified by the [DNR] to include a limit on the number of animal units.”

The ALJ also determined that in order to monitor groundwater surrounding Kinnard Farms’ for contamination that no less than six monitoring wells should be placed on “Site 2,” a field where Kinnard farms spreads cow manure. The petition for a contested case hearing did not specifically demand that DNR require Kinnard Farms to monitor groundwater at spreading sites, nor was the issue identified as an issue at the contested case hearing. No party briefed this issue.

Kinnard Farms filed a petition for judicial review in Kewaunee County Circuit Court. The petitioners and DNR filed a motion to dismiss Kinnard’s appeal because the decision was not yet “final” until the DNR modified Kinnard’s WPDES permit to reflect the ALJ’s rulings.

The Great Lakes Legal Foundation has taken an interest in this case because both of the ALJ’s holdings conflict with Governor Walker’s hallmark regulatory reform bill, 2011 Act 21, which unambiguously precludes DNR from imposing conditions on permits without explicit authority to do so. To DNR’s credit, they did not propose these conditions when Kinnard Farms requested to modify their WPDES permit. The fact that an ALJ, who is supposed to uphold the law, is flaunting Act 21 by requiring DNR to amend a permit to include conditions they have no explicit authority to include creates massive regulatory uncertainty that causes businesses to look for development opportunities out of state. The Great Lakes Legal Foundation has not taken any action to be included on this case to date, but will continue to monitor developments closely.

Documents:

Findings of Fact, Conclusions of Law and Order, October 29, 2014.

Richfield Dairy, Inc. v. DNR

Richfield Dairy was a 2013 contested case that unlike Kinnard Farms and New Chester Dairy was not appealed. Richfield Dairy is a CAFO located in Adams County. DNR issued a high capacity well approval to Richfield Dairy on November 3, 2011. A series of organizations, Family Farm Defenders, Friends of Central Sands, Pleasant Lakes Management District, and multiple individual petitioners (hereinafter collectively referred to as “petitioners”) requested a contested case hearing. The two pertinent issues the ALJ considered where whether DNR had to consider cumulative impacts when issuing a high capacity well permit and if DNR should have required more groundwater monitoring. The ALJ concluded that cumulative impacts needed to be considered when DNR is deciding to approve or deny high capacity well approvals.

A cumulative impact is measured by the impacts of proposed wells, past wells, present wells, and all future wells that have affected, currently affect, or could affect water resources in the area. The ALJ ultimately ruled DNR could issue Richfield Dairy’s high capacity well permit at a reduced pumping rate. The decision was not appealed. While it is not an open case the Great Lakes Legal Foundation is concerned about the effect it has had the high capacity well permitting process. While ALJ decisions have no precedential value (See Dairy Emp. Independent Union at Blochowiak Dairy v. Wisconsin Employment Relations Bd., 262 Wis. 280, 283 55 N.W.2d 3 (1952)). The concept of cumulative effects, found nowhere in statute or rule, has made it exceedingly difficult to receive a permit which ash led to less applicants and the movement of business out of the state.

Documents:

Findings of Fact, Conclusions of Law and Order, September 3, 2014.

Comments are closed.