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Could MPCA order Daley EIS after all?


(11/20/2019)

by CHRIS ROGERS

The Daley Farm’s bid to expand its Lewiston dairy operation is in legal limbo while the Minnesota Pollution Control Agency (MPCA) decides what to do. A hold-up resulting from one court ruling is likely to delay another court case: the farm’s lawsuit against Winona County. A recent court filing also suggests that the MPCA may be weighing whether an environmental review process called an environmental impact statement (EIS) — which could delay the farm expansion for years — is needed.

With a new generation looking to join the family farm, the Daleys applied to expand their dairy herd from 1,728 animals to 4,628 animals, which would make their farm the 13th largest feedlot in Minnesota. In public testimony last fall, local citizens were divided on the issue. Many vouched for the Daleys’ environmental care and urged state officials to support the farm and the local economy. Even more citizens opposed the expansion, citing water pollution concerns relating to manure, and asked the MPCA to require an EIS. Following an environmental review process called an environmental assessment worksheet (EAW), the MPCA ruled that the expansion would not have significant environmental impacts, the Daleys’ farming practices would mitigate the risk of water pollution, and an EIS was not needed. The MPCA granted permits for the expansion.

The EAW for the Daley Farm expansion was a 235-page report covering everything from odors to sinkholes. An EIS is an even more in-depth environmental study reserved for large projects with the potential for significant environmental effects. Some applicants have said that an EIS would be so onerous it would effectively stop their projects.

However, while the state permitted the expansion, the county rejected it. The expansion would have exceeded Winona County’s 1,071-cow limit on feedlot size, and the Winona County Board of Adjustment denied the Daleys’ request for a variance — or an exception — from that rule in February.

Meanwhile, environmental groups — the Minnesota Center for Environmental Advocacy and the Land Stewardship Project — sued the MPCA over its decision to permit the expansion. Likewise, the Daley Farm sued Winona County over its decision to deny the variance.

The Minnesota Court of Appeals ruled last month that the MPCA’s environmental review of the expansion was insufficient because it failed to consider the impact the expansion could have on climate change. The court sent the Daleys’ proposal back to the MPCA “for further proceedings consistent with this opinion,” though the court’s opinion did not offer clear guidance on what the MPCA needed to do.

In an interview last month, Daley Farm Chief Financial Officer Shelly DePestel suggested all the MPCA needed to do to allow the project to move forward was add a few sentences to the EAW report addressing climate change. Similarly, the Daleys’ attorney Matthew Berger said, “I do not believe the court’s order would require the whole process to start from scratch, but just [require the MPCA] to go back and address the comments in the existing record and explain its decision … The court didn’t say that an EIS is necessary or appropriate. It said, the MPCA, you need to show your work.”

MPCA officials were less sure. “Does it mean we redo part? Does it mean we start over?” MPCA Information Officer Cathy Malakowsky stated at the time. “Like I said, that is for the lawyers to figure out.” The agency added in a statement on October 14, “The MPCA is still reviewing today’s court decision and will determine the appropriate next steps in the coming weeks.”

One month later, the MPCA is still figuring it out. “We are still assessing our options for responding to the court decision,” Malakowsky wrote in an email last Thursday. “As you know, it was a complex decision and we’ll need some time to sort it out.”

The MPCA approved the Daley Farm expansion under different leadership — former commissioner John Linc Stine — in the final days of the Dayton administration. Now, Governor Tim Walz’s appointee, commissioner Laura Bishop, heads the MPCA.

Because of the delay in sorting out state permitting for the project, Berger asked the Winona County District Court for an extension in the farm’s lawsuit challenging the local permitting decision by Winona County. In that filing, he raised the prospect that the MPCA could decide an EIS is needed after all.

“The Court of Appeals reversed the state’s decisions with respect to the environmental review and state permitting and remanded the matter to the Minnesota Pollution Control Agency for further consideration as to whether an environmental impact statement is necessary (or not necessary) for this project,” Berger wrote in a letter to the district court judge. He added that until the state permits are decided, the county cannot permit the expansion.

MPCA officials said they did not know how long the agency would take to decide how to proceed on the Daley Farm’s environmental review. However, in his letter to the district court, Berger said he expected to hear from the agency late this month or in December. “I have no idea what that [decision] is going to be yet, but based on my communications from the state, that’s when I hope to know more,” he said in an interview.

MPCA officials did not answer a question about whether the renewed environmental review process could result in the MPCA ordering an EIS. In an interview, Berger declined to comment on that question.

Chris@winonapost.com

 

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