DRIFTLESS - Wisconsin counties and municipalities are exploring ways to be proactive in protecting groundwater resources despite state regulations that seem to restrict them from doing so.
Their concerns are grounded in numerous examples of other communities who are mobilizing reactively—after there is already a problem.
With the Driftless Region’s underlying, sensitive karst geology, many feel that the area cannot afford to wait. In this region, because the aquifers are located very deep in the bedrock, correction of contamination might take hundreds of years.
Local governments are seeking ways to protect their natural assets, property values, and economies, as well as public health and safety.
In Kewaunee County, where there is a large concentration of dairy Confined Animal Feeding Operations (CAFOs), 30 percent of private wells are contaminated with coliform and other toxins. That well water is undrinkable.
Closer to home, residents of Holmen and Onalaska townships have learned about the high levels of nitrates in monitoring wells surrounding Babcock Genetics that have existed for over 10 years.
This information only came out after the U.S. Environmental Protection Agency (EPA) intervened in 2016, questioning the State of Wisconsin’s ability to administer provisions of the Clean Water Act (CWA).
In October of 2017, there was a massive spill of an estimated 30,000 gallons of manure in Vernon County at the Wild Rose Dairy. Owners of the dairy CAFO failed to report the spill to the Wisconsin Department of Natural Resources (WDNR) for over 24 hours.
Grant County residents are fighting the construction of two large sow-farrowing CAFOs, by Pipestone System, one of the largest pork-production companies in the U.S.
And now there is the proposed construction by Premium Iowa Pork (PIP) of a large hog slaughtering facility just north of Viroqua. Its construction is predicted to attract hog CAFOs to the area.
Deck is stacked
Wisconsin’s Livestock Facility Siting law was enacted in 2004, during the administration of Governor Jim Doyle. The stated purpose of the law is to provide for “uniform regulation of livestock facilities.”
The law essentially acts to erode local control by counties and townships, preventing more stringent local rulemaking than the state law.
The corresponding Wisconsin Department of Agriculture, Trade and Consumer Protection (DATCP) rule for implementing the law, ATCP 51, was enacted in 2006 and contains most of the legal requirements and standards.
Not included in the stated purpose of the siting law and rules is protection of ground and surface water, guarding against the negative health effects of hazardous air emissions, or protecting quality of life for Wisconsin residents.
Counties and townships that do want to enact more stringent rules are basically limited to acting on the basis of protection of public health and safety.
Another topic that is gaining more attention is the impact that CAFOs have on property values and the local property tax base.
In a December 11, 2017 letter, Wisconsin Farmers Union Director of Government Relations, Kara O’Connor, said that reform of CAFO regulations are needed. O’Connor pointed to a recent Wisconsin Department of Revenue (DOR) review of three years of data from home sales in Kewaunee County.
The DOR found that on average, homes within a quarter-mile of a large CAFO (more than 4,000 animal units) sold for 13 percent less than their assessed value. Homes within a quarter of a mile and one mile from a large CAFO sold for eight percent less than their assessed value.
This finding resulted in the DOR lowering a Kewaunee County landowner’s property taxes, and has sparked much concern about impacts to the tax bases of municipalities.
“The state is dealing local governments a tough one-two punch,” O’Connor wrote. “On the one hand, the state is making them increasingly reliant on property taxes due to loss of state aid, and on the other hand it is not giving them the tools or latitude to protect the local property values on which they must rely.”
DNR’s hands tied
WDNR is charged by statute with regulating and enforcing standards governing water and air quality in the state. Local units of government are forced, by statute, to rely on the department for groundwater protection.
A 2016 report by the nonpartisan Wisconsin Legislative Audit Bureau found a series of problems with the WDNR’s implementation of the CAFO program. These included high levels of staff turnover in the CAFO program and inadequate permitting and inspection processes.
Seventeen farms were inspected after – not before – their permit was issued, and 98 percent of 1,900 required reports that farms were required to submit were not electronically recorded as being received.
Act 21, enacted by the Wisconsin State Legislature in 2011, significantly changes how administrative rules are created. Among other things, it narrowed state agencies’ rulemaking authority, and gave the governor new powers to approve or prevent the adoption of rules. One of the results of the passage of Act 21 is that state agencies are limited to authority that is explicitly conferred by the state legislature via statute.
“What this means is that the problem isn’t even really the WDNR any more,” Mary Dougherty, Socially Responsible Agriculture Project (SRAP) Consultant, said. “The WDNR’s hands are tied with rulemaking and enforcement, being limited to the direction that our elected representatives in the state legislature explicitly include in the legislation they pass.”
Dougherty went on to point out that legislators have also slashed budgets for the WDNR and county land conservation departments, further limiting even the responsible enforcement of existing laws and rules.
Public health and safety
Based on the groundwater crisis in Kewaunee County, the WDNR is set to approve special rules for sensitive areas of the state with underlying karst geology.
In the draft language of the document, WT 15-16, it says “The department has found that, in areas of the state where Silurian [Karst] bedrock is present, groundwater and surface water standards will not be attained by implementing the statewide agricultural performance standards and prohibitions in ch. NR 151, Wis. Adm. Code.
The language being considered for adoption by the board specifies only 16 counties in Eastern Wisconsin to be included in the more stringent water quality rules. However, the 10 counties in Wisconsin where virtually the entire area has an underlying Silurian bedrock or ‘karst geology, seven are in Western and Southwestern Wisconsin.
The state only acted on this matter once there was already a crisis and the EPA became involved. This crisis developed in the context of the WDNR having what is widely regarded as complete authority to regulate and enforce groundwater standards.
“There isn’t much political appetite for being proactive in groundwater protection right now,” Midwest Environmental Advocates Tressie Kamp, a staff attorney, explained. According to Kamp, it can be very difficult for counties to get the funding for the hydrogeological studies necessary to establish a claim as being a ‘sensitive area.’
“It’s generally a big fight to get local funding,” Kamp observed. “Lafayette County has done it piecemeal at the county level, and Green County provided a local budget for the study.”
In Crawford County, the Crawford Stewardship Project in alliance with the Valley Stewardship Network, based in Viroqua, is nearing completion of a citizen-based mapping project that will also serve as a template for other counties to employ.
In the 16 eastern counties to be included in the ‘sensitive area’ designation, the hydrogeological mapping is already in place to document the number of direct conduits to groundwater in the county, and the depth of soil to bedrock.
Crucially, because there are so many CAFOs in Kewaunee County, 99 percent of the county’s land is listed by DATCP as being enrolled in a nutrient management plan (NMP). CAFOs are required to have nutrient management plans versus smaller independent operators, for whom having the plan is voluntary.
So for counties like Crawford, Richland and Vernon, with low concentrations of CAFOs and spotty adoption of State Farmland Preservation Zoning, DATCP shows lower percentages of the land as being covered by an NMP. Crawford, Richland and Vernon have 13, 17 and 11 percent of land respectively enrolled in an NMP.
“Of course, these percentages are somewhat misleading,” said Vance Haugen, outgoing Crawford County UW-Extension Agent. “Straight out of the gate, the land base of Crawford County is 49 percent forest.”
In Crawford County, if the percentage of non-forested land under an NMP were calculated, then it would show over 25 percent. And then, you would need to also ask what percentage of the remaining 51 percent of the land base is being used for animal agriculture, as opposed to other uses, including the growing of row crops.
Northern Wisconsin’s Bayfield County was prevented from enacting an ordinance designed to protect the City of Ashland’s drinking water on the basis of a low percentage of the county’s land being covered by NMP’s. Similar to Crawford County, 14 percent of Bayfield County’s land is covered by an NMP.
“The WDNR’s position in rejecting our ordinance in Bayfield County is that we can’t protect what we don’t have,” Dougherty explained. “Our waters are already impaired, and because of state budget cuts, smaller operators don’t have cost sharing dollars available to entice them to voluntary participation in creating an NMP.”
Dougherty went on to say that there are many sources of nutrients in the waters coming from row crop farming, lawn chemical application and more. This all adds to the problem, especially in phosphorous levels. However, she agreed, that people wouldn’t likely develop health problems or be sickened from phosphorous in the water. The health concern comes from coliform bacteria, nitrates, and other toxins that come from manure.
Many of the eastern counties to be included in the ‘sensitive area’ designation have quite high percentages of their land covered by NMPs.
However, Waukesha County, which is one of the eastern counties to be included in the ‘sensitive areas,’ has only 16 percent of their land covered by an NMP. This is actually, for instance, one percentage point lower than Richland County at 17 percent, and not much higher than Crawford at 13 percent or Bayfield at 14 percent.
Counties and townships across the state are beginning to evaluate what can be done, and passing ordinances and resolutions, which have stood even in the context of state laws. They are also signing on to the Sustainable Rural Action Project’s (SRAP) call for a statewide moratorium on approval of new CAFOs.
On SRAP’s website, https://sustainruralwisconsin.org/community-tool-kit/sample-ordinances/, they maintain a listing of “sample ordinances” which have held up under state scrutiny, and which counties and townships can use to craft their own approaches.
Of the 48 private sector signators to SRAP’s CAFO moratorium resolution, six are from this area – Gays Mills Area Sportsman’s Club, Crawford Stewardship Project, Lower Kickapoo Initiative, Coulee Region Trout Unlimited, Valley Stewardship Network, and Driftless Anglers LLC. Of the 13 public sector signators, three are from this area – Town of Clayton in Crawford County, and the Towns of Hillsboro and Liberty in Vernon County.
David Troester, Crawford County Conservationist, reports that the county’s Land Conservation Committee discussed signing on to the CAFO moratorium. The committee decided not to sign the moratorium, but Troester reports they are having discussions which may result in some other resolution, affirming things like the county’s commitment to protecting groundwater, going before the county board for approval.
According to Troester, in Crawford County, a county permit is required for any operation that gets above 500 animal units. If the operation grows to over 1,000 animal units, then the WDNR ‘CAFO’ permit is required. Vernon County Conservationist Ben Wojahn says the same is true in Vernon County.
In Vernon County, several townships have passed or are considering ordinances or resolutions to regulate CAFOs.
Viroqua Township is in the process of drafting zoning regulations for the first time. Following citizen input on the first draft of the zoning ordinance, the town’s corporate counsel is in the process of revisions based on citizen feedback.
In June of 2014, Whitestown Township adopted a Land Use Ordinance, which sets out the basis in state law, which allows the township to exercise local control or ‘village powers.’ The ordinance defines various forms of nuisances such as large-scale water withdrawal, commercial traffic, CAFOs defined as more than 300 animal units, extraction of natural gas or oil, metallic or non-metallic mining, a toxic or radioactive waste depository, and a few other things. The ordinance seems to be one of the most thorough efforts by a township to exercise local control in its jurisdiction.
In September, the Town of Liberty passed a Moratorium on Livestock Facilities Ordinance unanimously. Similar moratoriums have been passed in other townships around the state, with the main difference being in the number of animal units that is the threshold. In the Town of Liberty it is 750 animal units.
The purpose of the 12-month moratorium is to allow the Town of Liberty to consider whether creation of a Livestock Facilities Licensing Ordinance, with requirements that are more stringent than state standards, is necessary to protect public health or safety. Further, the moratorium will allow the Town of Liberty to determine whether it has adequate resources for enforcement.
The town board will create a Rural Land Conservation Working Group. The group will study the effect of large livestock facilities, and make recommendations on appropriate regulatory approaches.
Town of Harmony Clerk Brenda Haas reported that about 14 concerned citizens had attended the December 11 meeting of the town board to discuss regulating CAFOs in the township. She reported that four or five persons from Viroqua, and nine or ten township residents spoke about the need to protect water and air quality in the township.
“Water quality was the biggest topic that the citizens at the meeting wanted to discuss,” Haas reported.
Jim Theler, Town of Harmony Zoning Coordinator, was also at the meeting. Theler, a retired UW-La Crosse professor, recently moved to the area.
“I hope to spend the rest of my life here in quiet and good stead,” Theler said. “Our organic neighbors are farming right next door, and you’d never know they were there.”
Theler reported that the topic was on the town board agenda as an information item.
“There was no business to vote on at the meeting, but there was a lively discussion,” Theler said. “A lot of town residents have concerns, and there is a big concern about a potential increase in hog operations in the area that could affect groundwater.”
Several farmers were present at the meeting, and there was discussion about different approaches to raising hogs. Many seemed to express belief that a farmer could raise quite a few hogs on a bedded pack system, with little odor and a smaller chance for runoff or spills as the manure is not in a liquid form. For instance, Town Chairman Lorn Goede raises hogs for Organic Prairie in this manner just down the road from the town hall.
“You’d never even know his animals were there,” neighbor Jim Theler says of Goede’s operation.
Town of Harmony residents also pointed out, regarding the slaughtering facility proposed for rural Westby, that water from that location drains into the Bad Axe River watershed, which flows through Harmony Township.