LA CROSSE - After the March 14 hearing in the Town of Holland about the proposed reissuance by the Wisconsin Department of Natural Resources of the Babcock Genetics swine CAFO Wisconsin Pollution Discharge and Elimination System permit (WPDES), La Crosse County Board Supervisor Mike Giese engaged in a dialogue with WDNR employee Ben Uvaas. Uvaas was at the hearing, and is the person who drafted the permit under consideration for a five-year renewal.

“What happens if the DNR does not renew the permit,” Giese asked. “Given the worsening results from the current monitoring well at the facility and the DNRs history of not enforcing the permit provisions, I really can’t see how you can move to reissue this permit.”

Uvaas responded to Giese that if his department were not to reissue the permit, that does not mean that the business would cease operations or that the potentially polluting practices would end.

“Prior to the adoption of the Clean Water Act and the WPDES permitting system, it was much harder for the DNR to enforce clean water standards,” Uvaas told the Independent Scout in an interview. “We would have had to demonstrate environmental damage, which is much harder to do than to demonstrate violations of the design or performance standards in the permit.”

In their conversation, Uvaas explained to Giese that a WPDES permit gives the DNR the best tool they have available at this time to enforce water pollution standards.

“What happens if we refused to reissue a permit is a tricky legal question,” Uvaas told the Independent Scout. “One of our attorneys wrote an opinion about this 10 years ago, with the subject ‘Why the DNR rarely denies a permit.’”

Uvaas pointed out that the DNR only has this leverage with animal agriculture businesses that exceed 1,000 animal units. 

“Any operator could choose to sidestep DNR oversight, if more restrictive county ordinances aren’t in place, simply by reducing their number of animal units to 999,” Uvaas said. “This would mean that the restrictions and requirements that govern those with WPDES permits are essentially out the window.

Uvaas specifically mentioned the frozen ground spreading restrictions.

Legal situation

Staff Attorney for Midwest Environmental Advocates Tressie Kamp said that the legal issues associated with the denial of an existing WPDES permit are very complicated compared to those for a new permit application.

“I am not sure how the DNR and an applicant would respond in the situation of a decision not to reissue a permit,” Kamp said. “This is largely uncharted territory from a legal perspective.”

The very limited case history in situations like this suggests that what the DNR will do is to revise and improve the conditions of the permit.

By contrast, recent experience with a new permit application for a hog CAFO in Bayfield County, Badgerwood LLC, according to Kamp, shows how the DNR might proceed in a situation where the permit has not previously been issued.

According to the DNR website:

“On February 13, 2015, the Department of Natural Resources received a final Wisconsin Pollutant Discharge Elimination System (WPDES) permit application for Badgerwood, LLC, a proposed Concentrated Animal Feeding Operation (CAFO) in Bayfield County. WPDES permits are water quality protection permits designed to ensure proper storage and handling of manure from larger-scale livestock operations. The WPDES permit program does not have authority to address odor, noise, traffic or other issues not related to water quality.”

“The operation would house approximately 7,500 sows, 18,750 pigs, and 100 boars. This is equal to 6,162 animal units. Structures at the site would include three barns with concrete manure storage structures located under each barn, to provide more than 180 days of liquid manure storage. Manure would be removed from storage and land applied according to an approved nutrient management plan.”

“Based on review of the WPDES permit application, the department determined that the application was incomplete and requested additional information on March 17, 2015. The department placed the WPDES permit and associated Environmental Impact Statement (EIS) process on hold and at this time, has taken no further action regarding this project.”

State statute (NR 150.30) allows for the DNR to determine that requiring an EIS can be the best approach to decision-making if the following conditions apply:

1. The project involves multiple department actions.

2. The project may be in conflict with local, state or federal environmental policies.

3. The project may set precedent for reducing or limiting environmental protection.

4. The project may result in deleterious effects over large geographic areas.

5. The project may result in long-term deleterious effects that are prohibitively difficult or expensive to reverse.

6. The project may result in deleterious effects on especially important, critical, or sensitive environmental resources.

7. The project involves broad public controversy.

8. The project may result in substantial risk to human life, health, or safety.

Legislative appetite

Farms are small businesses in the State of Wisconsin. Essentially the state legislature has never had the appetite to enact stricter laws which could be seen as “unfriendly to farm businesses” or which impose greater regulatory requirements. It has been a fundamentally unpopular approach, that was super-sized during Governor Scott Walker’s ‘Wisconsin is Open for Business’ tenure in the Governor’s office.

“If we’re going to deny a permit, we have to have a solid reason within the law to do so, or else the decision will face legal challenges,” Uvaas said. “Post Act 21, we have to make sure that all of our decisions are clear in code.”

Act 21, enacted by the Wisconsin State Legislature in 2011, significantly changes how State of Wisconsin 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.

Babcock permit

Uvaas explained to the Independent Scout in an interview that what is currently at stake in the reissuance is the department’s ability to gather the data it needs to be able to take steps to enforce drinking water standards.

“With the proposed permit, we have stipulated that there will be up-gradient wells at some of the sites of liquid manure application, and also new wells that are down-gradient from the facility,” Uvaas pointed out. “Currently, the monitoring wells in place are showing that water entering the property is more polluted than water leaving the property, putting the department in an uncertain enforcement position.”

Uvaas explained that groundwater flows very slowly underground, and measuring at locations “up gradient” or above where water flows onto the property, where the CAFO is spreading liquid manure, will show if their own practices are the reason for the elevated levels coming onto the property.

When queried about whether this situation was being debated by employees higher up in the WDNR, Uvaas explained that to his knowledge it has only been “the feet in the field” who have worked on this permit. In addition to Uvaas, this would include hydrogeologist Bill Phelps, and another regional staff person from the southwest area of the state.