In September of 2007 KickTime covered a Livestock Siting case in Magnolia Township that was unique because the town had zoning and wanted to put some conditional use requirements on an operation that had a history of polluting a local stream. In a "first of its kind" case brought before the Rock County Circuit Court, the judge vacated the decision of the State Livestock Facilities Siting Review Board to strip the Town-issued permit of conditions.
All the details are in the press release in the full story, but this is a huge decision that may change the uneven power relations between local units and the Wisconsin Department of Agriculture (DATCP) and their review board. The case will probably be appealed, but for the moment the circuit court seems to have applied common sense that the review board somehow could not muster.
Judge Upholds Water Quality Restrictions on Rock County Factory Farm
Contact: Peter McKeever and Christa Westerberg
Garvey McNeil & McGillivray, S.C., (608) 256-1003
[email protected]
Tony Ends, (608) 897-4288 / 354-3243
In the first case of its kind, Rock County Circuit Court Judge James E. Welker upheld the decision of the Town of Magnolia to impose conditions on a permit requested by Larson Acres, Inc., for a 1,500 animal unit dairy. The Town's conditions were intended to protect water quality by restricting landspreading of manure, requiring specified crop planting and rotation, and other measures.
The Judge's decision vacated a lower decision by the State Livestock Facilities Siting Review Board to strip the Town-issued permit of the conditions. The Judge found that the Siting Review Board had acted "beyond its powers," and that the conditions imposed by the Town were consistent with state statutes.
"[I]t would be absurd," states the opinion, "to require [local governments] to provide a scientific basis for adopting water quality standards that are already a matter of state law."
The Judge's opinion also noted that manure management standards the Department of Agriculture Trade & Consumer Protection relied on were insufficient to protect water quality: "DATCP did not exceed its authority in requiring farms to utilize this set of best management practices, but the rule should not be read as setting a new floor for environmental compliance."
"We are for farming that does not pollute water, and this landmark decision affirms our position," said Tony Ends, member of Green Rock Citizens for Clean Water. Members of the group appealed the Siting Review Board's decision to circuit court, as did the Town.
The Town originally issued the conditional use permit to Larson Acres in March 2007. Its permit imposed the conditions because the Town found that levels of nitrogen in Norwegian Creek were significantly elevated downstream of Larson's existing dairy operations, and because some residential wells were also contaminated with nitrogen.
Larson appealed that decision to the newly-formed State Livestock Facilities Siting Review Board, which in August 2008 agreed to strip the permit of the conditions the Town imposed. It was that decision that Judge Welker vacated on an appeal filed by the Town of Magnolia and members of Green-Rock Citizens for Clean Water.
The decision is the first court interpretation of the State Livestock Facilities Siting Law, enacted in April 2004. "The Court's decision is significant because it recognizes that the Livestock Facility Siting Law does not eviscerate the ability and responsibility of towns to protect water quality and safety," said Christa Westerberg, attorney for members of Green-Rock Citizens for Clean Water.
Because of the precedent-setting nature of the case, Judge Welker's decision anticipated an appeal. Accordingly, he allowed Larson to continue its operations if an appeal is filed within 30 days of his final order. The Court's decision is available at http://www.gmmattorneys.com/MemorandumDecision.12.15.08.pdf