Nancy Utesch is a farmer in Kewaunee County in northeast Wisconsin. Utesch, alongside her husband, runs a 150-acre operation. The Utesch’s cattle are all grass-fed, and they use a rotational grazing system to minimize their environmental impact.
For years, she and her neighbors have lived in the proverbial shadow of Kinnard Farms, a massive CAFO — or Concentrated Animal Feeding Operation. At last count, Kinnard Farms had about 8,300 heads of cattle and thousands of acres of land.
Today, the Wisconsin Supreme Court heard oral arguments in a case that could set new standards for Kinnard Farms, and other large-scale farms in Wisconsin.
That hearing comes after Kinnard has, for years, contaminated Kewaunee’s groundwater with manure. That contamination, both from Kinnard and other large operations, has previously turned drinking water brown.
Utesch says the problem has reached a breaking point.
“The people of Kewaunee county are subject to millions upon millions of gallons of liquid manure spread on our landbase. Quite frankly, the amount of manure spread has surpassed the carrying capacity of our land,” she tells WORT.
“Back in the day, there was the good neighbor policy in your communities. You would never think twice towards potentially poisoning the infant next door, which is what happened in Kewaunee County in 2004.”
In the case Utesch is referencing, six-month-old Samantha Treml was hospitalized after bathing in manure-contaminated water. The entire Treml clan was also poisoned, although to a less-severe degree.
While that case was unrelated to Kinnard Farms, it was linked to another nearby CAFO and has left a lasting impact on the community.
Utesch continues: “The same scenario also played out in Door County in 2014. We have these things happening to infants putting them in intensive care and it’s long overdue that this absolute health crisis is finally addressed in our communities.”
Today’s case was brought by Midwest Environmental Advocates and Clean Wisconsin on behalf of several Kewaunee County residents. They’re not arguing about the environmental impact of Kinnard Farms, exactly, but whether or not the state’s Department of Natural Resources can do anything about it.
In 2012, residents of the town of Lincoln, located half a mile from Kinnard, began pushing for tighter regulations on the existing farming operation and a proposed expansion.
After the DNR issued Kinnard Farms a wastewater discharge permit for that expansion, the citizens asked a judge to consider adding extra provisions to the permit: a cap on the amount of cows at the facility and for Kinnard Farms to monitor groundwater quality levels in the areas where the manure was present.
The judge agreed, in his ruling finding that there was “a crisis with respect to groundwater quality in the area,” and “a massive regulatory failure to protect groundwater in the Town of Lincoln.”
The DNR, then under Republican Governor Scott Walker, argued that it lacked the authority to enforce those requests, prompting a legal challenge that would eventually snowball into today’s case.
Since Governor Tony Evers took office, the DNR has flipped on that front — agreeing to the need for the regulation.
But, per a 2011 state act, state agencies and departments aren’t allowed to adopt policies and practices without explicit approval either from state statute or the legislature. As Evan Feinauer, a staff attorney with Clean Wisconsin, explains: If it’s not explicitly enumerated in the Department’s list of duties, the Department has no authority in the matter.
“And of course we think the answer is obviously yes; the agency has the authority in this pair of cases to take the respective actions under review, and our opponents think that the statutes don’t have that clear authority,” Feinauer says.
The court’s seven justices will be weighing 2011’s act against a previous legal precedent set in a ruling called the Lake Beulah decision. In that case, the high court held that the DNR was permitted to consider environmental impacts from high capacity wells when reviewing them for permits and applications.
The Kinnard case, and a companion case also considered by the state’s high court today challenging eight high capacity well permits, could have sweeping impacts on the DNR’s future authority.
If the court chooses to overturn Lake Beulah, and rule in favor of 2011’s Act 21, it may hamstring the DNR when permitting future operations. Justice Rebecca Dallet, a member of the court’s liberal minority, pointed out that route would force the DNR to issue a flurry of new rules for each possible permitting scenario.
“What you think Act 21 does is make it so that there is no ability by DNR to monitor the conditions that they’re required to maintain unless they issue a rule for each and every way they monitor it,” Dallet said.
The justices gave no indication as to when they would issue a ruling on the two cases. Meanwhile in Kewaunee county, Utesch says Kinnard Farms, and other operations like it, need to be held accountable — and that accountability starts with the state.
“We want accountability for the types of waste disposal taking place on our land out here,” she says. “And we want human health on our land protected. We want to be protected where we live.”
