VERNON AND LACROSSE COUNTIES - The Wild Rose Dairy LLC, a dairy CAFO in rural LaFarge, and K&D Manure Handling Inc. of Sparta, and K&D owner Kevin Hintz, will collectively pay $242,000 to resolve violations of Wisconsin’s wastewater and hazardous substance spills laws, the Wisconsin Department of Justice (DOJ) announced on Monday, April 26.
The dairy and their hauler were implicated in three manure spills between 2017 and 2019 that in total killed 2,776 fish. K&D was the manure hauler implicated in two spills into Otter Creek, and one into Bostwick Creek.
The first Wild Rose Dairy spill in October of 2017 into Otter Creek (rural LaFarge/Vernon County) killed 1,069 trout. The dairy failed to timely report the spill, and had been operating without a current Wisconsin Pollutant Discharge and Elimination System (WPDES) permit from the DNR. They experienced a second spill into Otter Creek in 2019, which killed 661 trout.
In the La Crosse County case, the state alleged that K&D Manure Handling and Mr. Hintz: (1) caused a manure spill in Bostwick Creek in June 2019, (2) failed to report the manure spill to DNR, and (3) failed to take action to contain or clean up the manure spill.
The state alleged that Mr. Hintz told DNR conservation wardens that he knew manure had reached a tributary to Bostwick Creek, and that he did not report the manure spill to DNR because he hoped nothing would come of it. The DNR was notified of the fish kill in Bostwick Creek by an anonymous public tip.
Of the total $242,000, $126,000 is to be paid to the Department of Natural Resources (DNR) for the trout killed by the manure spills and lost fishing opportunities for the public.
The statutory rate for per fish fines for trout from manure spills is $26.25 per fish. This means that the first Wild Rose spill would have cost $28,061.25; the second $17,351.25; and the Bostwick Creek spill $27,536.25. The per-fish fines for the three spills come to a total of $72,948.75. This would mean that of the $126,000 earmarked to paid to the DNR, $53,051.25 is for the “lost fishing opportunity.”
“Spills like these harm Wisconsin’s waterways and fish that swim in them,” said Wisconsin Attorney General Josh Kaul. “Those who contaminate our clean water must be held accountable.”
Vernon County angler and Coulee Region Trout Unlimited member Duke Welter had this to say about the settlement:
“Otter Creek was a high quality trout stream with good populations of brown and brook trout in its lower reaches,” Welter said. “The lower part of the creek has benefited from habitat work in the past, and the upper part of the creek could benefit from work as well.”
However, Welter stated that after trying to fish the creek in 2018 and 2019, after the first spill, he had found the fish population to be severely diminished and had given up on fishing there.
“The ten-thousand-dollar question is whether it is even worth putting more habitat restoration money into Otter Creek when Wild Rose Dairy is expanding its operations right up above,” Welter said. “My question would be: do we want to in effect sacrifice these streams because they have a history of poor upland land use? And my answer is, heck no. Rebuild the streams and encourage better land use, by court action if necessary.”
The agreement requires Wild Rose Dairy to pay $57,000 in forfeitures, surcharges, court costs, and attorney fees. The agreement requires K & D Manure Handling and Mr. Hintz to pay $185,000 in total in forfeitures, surcharges, court costs, DNR costs, and attorney fees. This includes $126,000 for the fish killed by the three manure spills.
Because this compromise was reached prior to the commencement of a civil action, requirements of 2017 Wisconsin Act 369, requiring legislative approval of DOJ court settlements, do not apply.
DOJ Public Protection Unit Assistant Attorney General Emily M. Ertel represented the state. DOJ worked closely with the DNR to obtain this result.
In the stipulation agreement for the Otter Creek spills, approved in Vernon County Circuit Court on April 21, it states “Plaintiff State of Wisconsin brought this civil action against Defendants Wild Rose Dairy, LLC and K&D Manure Handling, Inc. for alleged violations of the State’s laws and regulations governing wastewater discharges. The State of Wisconsin and Wild Rose Dairy now wish to settle this matter by agreement and avoid further litigation, and therefore enter into this Stipulation for Judgment.”
In the Stipulation, the Circuit Court of Vernon County is given jurisdiction over the parties and the subject matter of the action. The Stipulation and Order for Judgment applies to and is binding on the parties and on the successors and assignees of the parties, and no change in ownership or corporate or partnership status alters the responsibilities of Wild Rose Dairy.
Compliance by the dairy with the Stipulation and Order will constitute a full release of civil liability for the alleged violations, and nothing in the Stipulation can be construed as an admission of liability by the dairy or as a concession by the State regarding the truthfulness of the State’s allegations. The Order is a final and appealable order, but both parties have waived their right to appeal the order.
Wild Rose Dairy will pay $57,000, with a payment schedule starting three months from the date the Order for Judgment is signed, and ending with a payment eight months later.
Much of the same language is incorporated into the LaCrosse Stipulation and Order of Judgment, but the defendants in the case there are K&D Manure Hauling and its owner Kevin Hintz. In the Judgment, K&D/Hintz are ordered to pay $107,228, which is a sum of forfeitures, surcharges, costs, attorneys feed, and DNR costs.
The Defendants will pay $77,728 in costs for the fish killed as a result of the violations, payable by check to the DNR.
In the Stipulation, it specified that K&D Manure Hauling and Kevin D. Hintz are jointly and severally liable for payment of the Judgment, and compliance will constitute full release of their civil liability for the violations alleged in the Complaint.The Order for Judgment is a final and appealable Order, and both parties have waived their right to appeal the Order.