LSP sues state over Daley Farms’ permit


(2/6/2019)

by CHRIS ROGERS

The Land Stewardship Project (LSP) is suing the Minnesota Pollution Control Agency (MPCA) over its decision to permit the Daley Farms’ dairy feedlot expansion in Lewiston. In appeals filed last Friday, attorneys for LSP claimed that the manure management plan for the proposed expansion is inadequate and that manure applied to local farm fields from the feedlot would contaminate streams and groundwater in violation of the U.S. Clean Water Act.

The Daley family is seeking to enlarge its dairy herd from 2,275.2 animal units (1,608 cows and 120 calves) to 5,967.7 animal units. The expansion would produce 46 million gallons of manure annually that would be spread across thousands of acres of farm fields in central Winona County. Southeast Minnesota’s porous bedrock makes many local aquifers vulnerable to contamination from surface pollutants. Many shallow aquifers are contaminated with nitrates, and manure and commercial fertilizer are potential sources of nitrate pollution. After over a year of environmental review, MPCA officials determined that the Daley Farms had more than enough land over which to spread the manure and, as long as the Daleys followed special requirements in their manure management plan, the added manure would have no significant impact on local trout streams or groundwater. The MPCA decided last month that the Daley Farms’ proposal did not require further environmental study — a study called an environmental impact statement (EIS) — and, because it met the legal requirements, it was entitled to receive a feedlot permit from MPCA.

“Under Minnesota law, an EIS is required when a project has the ‘potential for significant environmental impacts.’ In this case, this standard was clearly met, and the record [was] ignored by the MPCA in failing to order an EIS,” LSP organizer Barb Sogn-Frank argued. LSP partnered with the St. Paul-based Minnesota Center for Environmental Advocacy (MCEA) to jointly sue the state. “[LSP and MCEA] are aggrieved by this decision because the [two organizations] and their members rely on, use, and enjoy the natural resources that will be negatively affected by the Daley project, including the South Fork of the Whitewater River, Garvin Brook, Peterson Creek, and Rush Creek,” MCEA attorney Amelia Vohs wrote in court filings. “[Our] members also rely on area groundwater resources for drinking water. This groundwater supplies private wells in Utica, Fremont, and St. Charles townships and will also be negatively affected by the project.”

LSP and MCEA argue that the MPCA’s permit allows the Daley Farms to apply too much manure to sensitive areas where nitrogen from that manure may contaminate local aquifers. MPCA regulators and the Daley family developed an in-depth manure management plan that spells out where and how manure will be applied, and the Daley Farms’ permit requires that the Daleys go above and beyond normal requirements by picking any two of a list of seven practices designed to further reduce the risk of nitrate contamination, such as split applications of manure — in which manure is spread in smaller quantities over multiple applications instead of one big application. The MPCA ruled that the manure management plan and the extra requirements would protect local water quality, but Vohs argued that, “there is no evidence in the record that these conditions will actually result in any meaningful protection of ground and surface water.”

“We’re not surprised by it. Once again, we’re disappointed,” Shelly DePestel of the Daley Farms stated, saying that LSP’s new lawsuits are part of a trend of the group doing anything it can to stop local farms from growing in size. “They are an anti-ag organization which is trying to stifle agriculture across the state … They want to determine the scale and size of farming, and everyone needs to adhere to it. … They want it their way, and it’s not about the environment. They don’t want farms of scale.” The MPCA spent over a year reviewing the environmental impacts of the proposed expansion, DePestel continued. “They’re not taking these things lightly, and now [LSP] is costing every taxpayer in the state of Minnesota to fight this after [the MPCA] has permitted it. It’s ridiculous to me how much money and time is wasted by LSP stirring the pot once again,” she stated.

Nitrate pollution is a real issue in rural Winona County. Twenty percent of private drinking water wells tested in Utica Township — where Daley Farms is located — exceeded the federal limit for nitrate pollution, according to a recent Minnesota Department of Agriculture (MDA) study. However, it is unclear to what degree modern agricultural practices are to blame. In their lawsuit, LSP and MCEA contend that the existing pollution is a sign that current regulations and agricultural practices are not enough. Some Winona County officials have echoed that sentiment, pointing to the contamination levels and saying the county must do more to prevent nitrate pollution.

However, several agricultural organizations contend that the nitrate pollution in Southeast Minnesota groundwater is leftover from the poor farming practices of past generations and modern farming is not to blame — on the contrary, farming has come a long way in precisely managing nutrients and reducing pollution. In some areas, it can take surface pollution decades to reach aquifers, and farm organizations point to this lag time as evidence that today’s nitrate contamination was not necessarily caused by today’s farming.

DePestel cited a 1991 MPCA study of nitrates in western Winona County groundwater. That study found that 35-40 percent of wells tested exceeded the federal 10-micrograms-per-liter limit for nitrate pollution. The MDA’s recent study found that 19 percent of wells exceeded the 10-microgram limit. “It’s getting better; it’s not getting worse,” DePestel stated. “It’s going directly in the face of what LSP is saying, that [nitrate pollution] is getting worse and we’re the ones causing it,” she continued. “It’s getting better, probably because of our good management practices.”

MPCA officials declined to comment on LSP’s lawsuit, explaining that the agency does not comment on ongoing litigation. In its decision that an EIS was not required for the Daley Farms, MPCA officials wrote that the Daley Farms’ manure management plan met the requirements of all applicable laws and regulations and “the MPCA does not anticipate the project will contribute to any potentially significant adverse effects on water quality.”

“The MPCA hasn’t done due diligence to protect water, air, land, quality of life, and local economies for the majority of Minnesota’s family farmers and rural residents,” LSP member, local farmer, and former Winona County Planning Commission Chair Bob Redig said. “That’s their job — to make sure we have a sustainable environment for everyone — not to rubber stamp industrial-scale farming.”

LSP will face a challenge in its attempt to overturn the MPCA’s decision. Courts tend to give government agencies such as the MPCA the benefit of the doubt, so the burden of proof will be on LSP and MCEA to demonstrate that the MPCA’s decision was improper.

Although the MPCA has permitted the project, the Daley Farms still needs a variance from the Winona County Board of Adjustment (BOA). The Daleys have applied for an exception to a county rule limiting the size of feedlots. The BOA is scheduled to hear that variance request later this month. If approved, the Daley Farms would need one final approval after that: a conditional use permit from the Winona County Board.

LSP is a Minneapolis-based environmental and sustainable agriculture organization with a local office in Lewiston. It has been a leader of numerous environmental campaigns in Winona County, including the ban on new frac sand mines.

Chris@winonapost.com

 

CAPTCHA image
Enter the code shown above in the box below
(Items marked * are required)

Search Archives




Our online forms will help you through the process. Just fill in the fields with your information.

Any troubles, give us a call.