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Court rules against Daley Farm, MPCA


(10/16/2019)

by CHRIS ROGERS

On Monday, the Minnesota Court of Appeals delivered a setback to the Daley Farm of Lewiston and a partial victory for environmentalists who oppose the farm’s proposed expansion.

The court upheld the Minnesota Pollution Control Agency’s (MPCA) conclusion that the feedlot expansion would not pose significant risks to local water quality — the main objection raised by many citizens. However, the court ruled that the MPCA erred by not considering greenhouse-gas emissions in its environmental review of the feedlot expansion. The ruling revokes a state permit for the project and sends the proposal back to the MPCA.

Before Monday’s ruling, a local Winona County ordinance was already effectively blocking the farm expansion from becoming a reality, but now the MPCA and Daley Farm may need to go through additional steps to try to redo state approvals for the project. The Daley Farm is currently suing Winona County over the county’s decision not to grant an exception to that ordinance, which limits the size of livestock feedlots in the county to no more than 1,500 animal units. The farm needs to clear both state and local hurdles to complete the project.

The Daley family runs a 1,728-animal dairy farm outside Lewiston. With a new generation of their family looking to join the operation, the Daleys applied in 2017 to increase their herd to 4,628 animals (the equivalent of 5,968 animal units). The proposed expansion would make the Daley Farm the 13th largest feedlot in Minnesota, according to MPCA data.

Last fall, the MPCA completed a 235-page study called an environmental assessment worksheet (EAW) analyzing the potential environmental risks of the project. Many local citizens spoke against the project, saying manure from the feedlot could threaten local drinking water. The MPCA maintained that farming practices the Daleys had agreed to use to mitigate pollution would safeguard water quality. The agency ruled last winter that the feedlot expansion would have no significant environmental effects, did not need a more in-depth study called an environmental impact statement (EIS), and could be permitted.

The Minnesota Center for Environmental Advocacy (MCEA) and the Land Stewardship Project (LSP) sued the MPCA over its decision, arguing that storing and applying so much manure in an area where groundwater is vulnerable to contamination would pose significant environmental effects and an EIS was needed. They also argued the EAW was insufficient because it did not consider the impact the feedlot expansion might have on climate change. Cows emit a lot of the potent greenhouse gas methane, and MCEA claimed the Daley Farm could become the 43rd largest source of greenhouse gases in Minnesota.

In her opinion, Judge Diane Bratvold wrote “… the MPCA was aware of, but failed to consider the potential effects of the greenhouse-gas emissions.” Regarding claims that manure from the feedlot would pollute local water, Bratvold and two other judges ruled that the MPCA had substantial evidence to back up its decision.

The ruling does not spell out what the next steps will be. It sends the project back to the MPCA “for further proceedings consistent with this opinion.”

“We’re still trying to figure out what it means, too,” MPCA Information Officer Cathy Rofshus stated. Will the MPCA have to redo the entire EAW process or just add a section addressing greenhouse gases? “Those are all the questions we have, too,” Rofshus responded, explaining that MPCA lawyers are reviewing the opinion and determining how the agency should proceed. “Does it mean we redo part? Does it mean we start over? Like I said, that is for the lawyers to figure out.” She said the agency would have more information in the coming weeks.

Attorney for the Daleys Matthew Berger said he was still evaluating the impact of the court’s ruling, as well, but that he believed that it would not stop the project. “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,” he said. “The court didn’t say that an EIS is necessary or appropriate. It said, the MPCA, you need to show your work. You need to address this issue and show your basis for the decision,” he added.

“It just needs verbiage,” Daley Farm Chief Financial Officer Shelly DePestel said, offering her interpretation of the ruling’s impact. “They add on a few paragraphs, and then it moves forward.” She added, “We got the right answer. We didn’t show our work, so we’re not going to get credit for it. Go back to MPCA, show your work, and boom, this can move on.”

Spokespersons for the MCEA and LSP were also uncertain how the ruling would affect state approvals for the project, though they stressed that the county ordinance still blocks the expansion.

While everyone is still figuring out what the MPCA will need to do to address greenhouse-gas emissions, MCEA Director of Public Engagement Aaron Klemz said, “This is not a small consideration for this particular proposal … This is a very substantial greenhouse-gas polluter, and the proposal will have to be analyzed with these facts in mind. We don’t know how the MPCA will do that, but we’re happy that that will be on the table because that’s what environmental review is all about.”

“I think it’s great that the court is insisting that the MPCA do its job in following Minnesota’s environmental law and protecting the people of this state,” LSP member Barb Nelson said. “The MPCA shouldn’t be permitting any operations that aren’t legal in our county anyway,” she added. Water pollution was and is Nelson biggest concern with the Daley Farm expansion. “I don’t care what promises they make and what regulations they say they’ll follow, our water is at risk,” she told the Post. Asked how she felt about the decision hinging on greenhouse gases, Nelson said, “My issue was mostly the other, but if it holds the whole project up — they might decide there’s no way to address the greenhouse-gas emissions, and [the expansion] is just not a good thing for the people in the county.”

“The court’s decision is good news for rural residents concerned about protection of land, water, air, health and quality of life when facing the harms posed by massive, industrial animal confinements,” LSP Policy Organizer Barb Sogn-Frank wrote in a statement. “This is especially poignant when considering that Winona County rural residents are already plagued with high nitrate levels in their drinking water due to heavy agricultural runoff.”

“It’s interesting to me … that some of these people think this will be a big win,” DePestel said, noting that the court upheld the MPCA’s decisions on water quality that had been the main focus of critics. “The Land Stewardship Project lost on nearly every substantive issue and saw limited success due to a procedural technicality,” the Daleys added in a written statement. “This is what they do,” DePestel said. “They go to court, they hold things up … They’re grasping. They want anything. They’re reaching.”

Keep reading the Winona Post for more on this story.

Chris@winonapost.com

 

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