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Court: DNR must consider more high-cap well impacts

Dec. 30, 2013 | 0 comments

MADISON

Two legal rulings last week were considered victories by several environmental groups that are fighting the creation and operation of large dairy facilities in the Central Sands region of the state.

The Wisconsin Court of Appeals ruled Dec. 19 that the Department of Natural Resources (DNR) failed to adequately consider the cumulative effects of high-capacity well pumping in the vicinity of the proposed Richfield Dairy in Adams County when it prepared an environmental assessment (EA) in 2011.

Environmental groups that brought the case considered it a victory as the Appeals Court reversed a decision of the Dane County Circuit Court, which had ruled in favor of the DNR's procedures in 2012.

That earlier decision sent the matter back to the agency to consider the "potential cumulative effects" that the dairy's two high-capacity wells might have on the environment.

The DNR's EA was triggered by the proposed dairy facility's owners' application for several permits and approvals to construct the new 4,300-cow dairy operation in the Central Sands region. They had applied for an application for two high-capacity wells and a wastewater discharge (WPDES) permit for a proposed dairy facility near Coloma.

The 4,300-cow dairy, being developed by the Kaukauna-based Milk Source, is planned with an 80-cow carousel parlor and 10,000 acres under its nutrient management plans.

The legal case, officially called "Family Farm Defenders, Inc. et al. v. Wis. Dept. of Nat. Res." was brought by several groups including "Friends of the Central Sands" who have voiced concern about depleting groundwater resources in the Central Sands region.

Appeals Court Judge Paul Higginbotham ruled that that EA was inadequate and that there is a precedent for the agency to consider cumulative effects of the wells.

There are reportedly 90 high-capacity wells in the Central Sands region of the state already and there are applications for many more. Applications accelerated after last year's drought and there is currently a statewide backlog of 350 high-capacity well applications in the works at DNR.

Petitioners bringing the appeals court challenge included Family Farm Defenders, Friends of the Central Sands and John Robert Clarke of Coloma.

"We are pleased with the decision of the Court of Appeals," said Clarke, who is a member of Friends of the Central Sands. "DNR's failure to consider the cumulative effects of high-capacity well pumping in the Central Sands region resulted in poor decision-making with respect to the Richfield Dairy.

"Now we hope the DNR will do its job to protect this sensitive area, which is already suffering from excessive groundwater pumping," Clarke said.

The petitioners argued in the case that the DNR's environment assessment was flawed because it focused only on the two Richfield Dairy wells and avoided the issue of the effects those wells could have on other water resources.

Christa Westerberg, the attorney representing Friends of the Central Sands and Family Farm Defenders said the decision of the Court of Appeals will prompt the DNR to develop a more thorough understanding of the effects of groundwater withdrawals on the landscape, "as required by the law and sound science."

Second hearing on monitoring

Several of the same parties were also involved in a hearing last week before the Wisconsin Division of Hearings and Appeals, challenging the DNR's issuance of a WPDES permit and its approval of the Plans and Specifications, Nutrient Management Plan, and High Capacity Wells for the New Chester Dairy in Grand Marsh, also owned by Milk Source.

In that separate case, administrative law judge Jeffrey Boldt ruled that the DNR does have the authority to require high-capacity well owners to monitor groundwater levels.

Bill Harke, director of public affairs for Milk Source, told Wisconsin State Farmer that they will continue to contest that requirement in further hearings in January.

"That is a summary judgment leading to a hearing in January. We believe that the judge will eventually see that the DNR barely engaged in any analysis before requiring that monitoring. We maintain that there will be no useable information from the monitoring," Harke added, via a telephone interview.

The New Chester Dairy is operating and is doing the monitoring as the DNR required in the permit, he explained, but Milk Source has "pretty compelling data" that there will be "no useful data" generated by a continued monitoring program.

In issuing that preliminary judgment Boldt said the DNR should use "both its expertise in water resources management and its discretion" to determine whether its duty as trustee of public trust resources is implicated by the high capacity well permit.

That challenge began when the DNR made it a condition of approval for two high-capacity wells that the New Chester Dairy install equipment to monitor nearby surface water levels once the well began pumping. New Chester Dairy complied but has contested the monitoring requirement, Harke said.

Environmental groups opposing the dairy claim the withdrawal of water by the area's existing high-capacity wells has already drawn down a nearby lake by about two feet and that groundwater modeling shows more wells will draw the lake down even further.

Modeling was done by Milk Source as part of the original study of the site, but the DNR made it a condition of the granting of high-capacity well permits that the dairy monitor surface water impacts near the dairy.

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