2010 Testimony to WI DATCAP

Board of Directors
Department of Agriculture, Trade and Consumer Protection
c/o Mike Murray, P.O. Box 8911, Madison WI 53708-8911

Feb. 18, 2010

Respected Board Members:

I must tell you that I carry no ill will against any farmer, big or small. With my family, I depend on farming for our livelihood. It is our business. It is our vocation. We’ve advocated for farm families in three states. We’ve actively supported our farm neighbors in southern Wisconsin. My wife serves on an agriculture coalition’s board of directors in central Wisconsin. We both serve on the state line Collaborative Regional Alliance for Farmer Training and Farm Beginnings steering committee. We’ve been active in town, county and state 4-H programs for 16 years. We’re not against farming.

What I want to share is my direct experience with both the state’s livestock facility siting law in general and with Larson Acres Inc. in particular, as regards my rural neighborhood in western Rock County. I have profound respect for members of the Larson family. I respect them for the hard work and sacrifice they surely make to maintain a farming business in these difficult times. I do not want my comments to reflect negatively on them in any personal way. I find it tragic that everywhere in Wisconsin we are in conflict in our countryside and that we must take sides on this law.

Yet the record, the scientific evidence, the events and documentation that are unfolding as a result of passage in 2004 of the livestock facility siting law compel me to speak. Clearly, this law has set us on a course with dangerous implications. I urge you to consider the facts surrounding this case involving the Town of Magnolia and Larson Acres under the new law. It is a portent of what is to come upon us all, everywhere in Wisconsin, as a result of this law’s uniform set of procedures.

I witnessed in 2007, a step-by-step presentation for Larson Acres by a state Department of Agriculture, Trade and Consumer Protection staff member to Magnolia’s Town Board of Supervisors. That DATCP staff member described every element of the checklist for completing a permit application to construct a large-scale confined animal feeding operation under the new state law. He told the local town board that Larson Acres had met every letter of the law under the new permit process for siting a 1500-animal-unit heifer operation on County Hwy B in their township. He urged the town board to grant a conditional use permit to Larson Acres for this facility. He advised them that they could not deny Larson Acres a permit under the new law.

At that very moment, however, the town was receiving and gathering information on Larson Acres Inc. from soil and water scientist Dr. Byron Shaw, aquatic ecologist and bio-geochemist Professor Emily Stanley, hydrologist and aquatic biologist David Marshall, retired lab manager from the Environmental Chemistry and Technology Program at the UW-Madison Philip J. Emmling, and hydro-geologist Peter Taglia.

These respected scientists studied Larson Acres’ crop records and soil samples. They tested wells, surface water and drain tiles at Larson Acre’s heifer operation and in the vicinity. They carefully evaluated agronomy, health, safety, local geology and soils at the operation’s quarter-mile long dry cow feeding barn and massive slurry, built to accumulate more than 6 million gallons of manure every 300 days.

Their evidence and analysis formed the basis for more than 2,500 pages of public record. It showed well water readings of up to and more than 30 ppm nitrate. It showed creek water readings of more than 200 ppm nitrate and field tile readings of more than 100 ppm nitrate. Water upstream from the property tested under 4 ppm nitrate.

Federal water standards tell us that 10 ppm nitrate, which can starve the body of oxygen in the blood stream much as it starves aquatic life of oxygen in surface water, is unsafe to drink. The U.S. Geological Survey and state Department of Natural Resources tested 240 streams around Wisconsin and found an average of only 2 ppm nitrate between 2001 and 2003.

Nitrate levels that scientists were finding at Larson Acres’ heifer operation in Magnolia Township, were not only abnormal. They were, they are, lethal. The operation had been incorporating millions of gallons of liquid manure in fall and spring ahead of its conditional use permit under the new state law. Both Shaw and Stanley, emeritus and sitting professors of the University of Wisconsin, told the town what they were finding at the confined animal feeding operation was the most serious pollution they had seen in their academic and professional careers.

Nitrate pollution’s health impacts include Blue Baby syndrome, developmental and birth defects. It is affiliated with forms of cancer, such as non-Hodgkin’s lymphoma and bladder cancers. Risks to other organisms, including livestock, are slowed growth, slowed body functions that can result in stillbirth and even death.

Dr. Shaw told the local board that Larson Acres’ field records and soil samples showed phosphorus levels more than 5 times what they should have been on more than half of its land base. He said it could easily take 18 years of letting the soil completely rest, with no fertilizer or manure applications whatsoever, for crops to take up that much phosphorus and return levels safely to normal. He said this was also an indication that too much nitrate had been applied to the same land.

While the town of Magnolia believed it had enough evidence to refuse the livestock facility siting permit for the application that DATCP said met every letter of the new law, the town granted the permit with 7 simple conditions. Larson Acres Inc. refused to submit to those conditions and appealed to the state’s new livestock facility siting review board.

I attended the one day of open deliberation that this new board gave Larson Acres’ appeal and the town’s evidence. The review board held no open discussion of any details in the town’s 2,500 pages of evidence. They granted no party a chance to speak. They asked no questions of town officials in attendance. In a single, day-long public review of Larson Acres’ appeal in July 2007, the words “public health” were uttered only once. Only passing references admitted “problems” at Larson Acres, and several review board members even belittled and scoffed at local residents’ concerns.

The review panel members struck down the Town of Magnolia’s attempts to condition Larson Acres livestock facility siting permit. They refused to allow the town to have Larson Acres:

Stop fall manure application on its tile drained and upland fields till nitrate pollution stops.

Set up regular water monitoring and annual soil testing on the property,

Replace its plan to plant field corn (the most prone crop to leak nitrate into water) continuously in its manure application area, with wider rotation of hay (the least likely cropping system to leach nitrate).

Instead, the new review board said towns can undertake (at their own expense) enforcement through courts. Panel members admitted the new livestock facility law severely restricts how towns, counties, even cities, can condition new and expanding large-scale livestock facility permits. Larson Acres, Inc. thus got a permit with no significant, local conditions to operate with 1,500 animal units, despite scientific evidence of severe nitrate water pollution.

Yesterday, on Wednesday, Feb. 17, almost 3 years later, I sat in Madison with attorneys for our rural neighborhood, the town board, Larson Acres Inc. and the state review board. We were sitting before the state court of appeals. I listened to perplexed judges grilling attorneys for all parties about each of their positions as regards the new state livestock facility siting permit process.

At stake for Larson Acres is a brand new $12 million expansion of its dairy operation to more than 5,000 animals now. This expanded facility will generate more than 40 million gallons of manure a year – at least as much or more than the combined waste streams of Janesville and Beloit – on a single farm operation. Larson Acres broke ground for this new facility last summer, all the while it was appealing the lower court ruling supporting the town’s conditions on its present livestock facility siting permit. It forged ahead with the new expansion in winter even without final determination of a Wisconsin Pollution Discharge Elimination System permit from the Department of Natural Resources. The WPDES permit for the present confined animal feeding operation has been expired for several years, yet the DNR has said repeatedly it is likely to renew the permit despite a number of serious problems and evidence of pollution in the existing operation. The DNR even delayed holding a public hearing on the WPDES permit until March 5 of this year, when it appears the expanded facility will be well on its way to completion.

At stake for the town is its ability even to test water at a huge agricultural facility directly impacting more than half its land base, its wells and its surface waters; without encountering threats of arrest for trespassing, without having to get court orders to inspect wells, field tiles and creeks; without having to file nuisance suits, impose $500-per-day fines or find ways to pay for protracted lawsuits that drag on for years and pose hardships for rural residents in a very small tax base.

At stake for my rural neighbors is their collective ability to ensure their children and livestock can safely drink water from their own wells, and that fish and aquatic life will not perish in our creeks and rivers downstream of Larson Acres’ operations, and that nothing, no one dies while courts weigh complicated decisions under the new state livestock facility siting law.

The appeals court may well rule that the Town of Magnolia, and thus every town in Wisconsin, cannot condition a permit to build a large-scale confined animal feeding operation under the new law. The appeals court may uphold the new state review board’s insistence that a town can only bring dangerous levels of nitrate water pollution under control by lengthy court battles that cost the town millions of dollars and threaten public health and safety for years before resolution is achieved, or worse, never achieved.

And Wisconsin’s new livestock facility siting law, by its uniform procedures will thus likely ensure that the situation embroiling Larson Acres and the Town of Magnolia in conflict for nearly 9 years now will become repeated over and over across more than 1,000 townships in our state.

That the livestock facility siting permit process protects health and safety through uniform nutrient management standards and technical guidelines is obviously a cruel fiction. It treats every applicant as if the industrial operation is brand new with an entirely clean slate. It facilitates expansion to levels endangering health and safety of drinking water and aquatic life. It does not and cannot ever provide adequate state resources to permit huge livestock facilities in application processes that consider the unique history, geography and dynamics of individual farming operations in specific rural areas, terrain, soils, water flow around the state.

The appeals process under the new law poses an even greater threat to the public’s welfare. It leaves rural town boards no recourse but to police and enforce clean water standards outside the permitting process. It leaves rural populations vulnerable and helpless in face of highly paid law firms and concentration of capital to pay for legal services over years of litigation. It leaves no legal mechanism to address threats to health as the result of contaminated water immediately and effectively. It leaves no credibility to town officials in the face of a broad state law that preempts local authority and confuses, undermines and complicates local enforcement and protection.

We have been encouraged by growing recognition statewide of the importance of protecting local appointed and elected officials’ abilities to enforce water quality standards and regulations. I’ve copied for you here the friend-of-the-court briefs that a number of organizations, including the Wisconsin Towns Association and the Wisconsin Lakes Association, the Town of Dunn, Dane County and others have submitted to the state appeals court in support of Magnolia’s attempts to condition a livestock facility siting permit to Larson Acres. Even if the appeals court rules against the town and my rural neighbors, the critically important need to address problems posed by uniform provisions of the state livestock facility siting law are not going to go away for any of us.

Everything about farming involves individual choice. Whether to farm on a large, or a small scale. Whether to farm crops or tend livestock. Whether to use chemicals or employ organic practices. Whether to take on huge loans that require 5 percent growth in volume every year just to service the debt and keep up with interest rate increases and rising production costs, or whether to work off-farm to insulate the family from radical swings in commodity prices and milk checks.

To human beings, however, water is not a choice. If we do not have water to drink on a daily basis, we die. If our wells are polluted, there is no technology available to restore purity of our ground water. If our water is contaminated, we become sick, we suffer.

Personally, I believe there is no way to remedy this situation without the DATCP board of directors strongly recommending to the state legislature that it repeal the livestock facility siting law. I believe the ability of local people to decide their own fate, protect themselves and their environment, manage their own growth, enforce water quality standards, and address unique needs of people and resources where they live, outweighs any business or corporate interest. We cannot drink money. We cannot enjoy a healthy economy or realize long-term financial benefits from anything that is ruining our water.

Respectfully submitted,

Tony Ends

910 Scotch Hill Road, Brodhead, WI 53520

608 897-4288

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