by Andrew Hanson, Attorney,
Midwest Environmental Advocates, Inc.
Picture this: A tractor pulls a large trailer filled with the liquid animal manure from approximately 900 cows across a field on a bitterly cold late February day in north central Wisconsin. The field is frozen and slopes toward several tributaries of a fragile and already polluted river listed by the State of Wisconsin as impaired by a lack of dissolved oxygen and too much bacteria. In total, the industrial scale dairy will spread about 250,000 gallons of manure on the frozen, thirty-acre field that day. Almost immediately, thousands of gallons of liquid manure slide off the field, form pools one foot deep on a neighbor’s adjacent woodland, and then run off directly to nearby streams.
Unfortunately, this is not a piece of fiction. This is what actually happened when the Maple Ridge Dairy of north central Wisconsin decided to spread thousands of gallons of manure on frozen ground in late February of this year. The Maple Ridge Dairy houses approximately 900 cows in freestall barns and operates under a discharge permit issued by the Wisconsin Department of Natural Resources (WDNR). That permit regulates manure application by Maple Ridge Dairy by determining where and how much manure Maple Ridge Dairy can spread on the fields. More importantly, the permit prohibits Maple Ridge Dairy from causing manure to run off to nearby streams, rivers, and groundwater.
Animal manure contains high levels of phosphorus, nitrogen, and bacteria which can cause oxygen depletion in waterways, algal blooms, and fish kills. Although not every manure spill or runoff event causes a fish kill, every addition of nutrients to the waterway creates a series of chronic, sub-lethal stressors on an aquatic community, such as low levels of dissolved oxygen and high levels of bacteria. At some point, one spill too many causes a fish kill.
Although it would be comforting if we could say that the incident at the Maple Ridge Dairy was an isolated example of poor judgment by one industrial-scale livestock operation, the practice of spreading manure on frozen and saturated ground is a widely used means of manure disposal by Wisconsin’s mega-dairies. These mega-dairies claim to spread the manure on frozen ground as fertilizer for the crops, but that begs the question: what are the fertilizer needs for crop fields that are frozen, with no crops planted and none yet to be planted for months? None. Spreading liquid manure on frozen ground is more like waste disposal than fertilizer application.
After the incident occurred at the Maple Ridge Dairy, a local chapter of the Sierra Club in Marathon County decided that it was time to stop this polluting practice. They enlisted the help of Midwest Environmental Advocates, Inc. (MEA), a non-profit environmental law center based in Wisconsin, to represent them in a Citizen’s Suit.
The local group decided to take advantage of a well-known federal environmental law: the Clean Water Act. The federal Clean Water Act protects our public waters by prohibiting livestock factories from discharging animal waste into our streams and rivers, except in very rare circumstances.
When Congress enacted the Clean Water Act in 1972, it realized that there would be times when an agency like the WDNR would lack the resources or the political will to enforce environmental laws. To fill this gap and supplement the WDNR’s efforts, Congress envisioned that citizens would become “private attorneys general” and have the power to stand in the shoes of the WDNR and enforce the Clean Water Act. This part of the law is referred to as the “citizen suit” provision, and allows average citizens to stand in the shoes of the state and go to federal court to force livestock factories, among other polluters, to clean up their act and pay for the cost of their pollution. The Clean Water Act authorizes penalties of up to $27,500 per day for violations of the law.
The manure spreading and pollution caused by Maple Ridge Dairy are clear violations of the federal Clean Water Act because they resulted in manure discharges to the Big Eau Pleine River, a waterway listed by Wisconsin as impaired by too little dissolved oxygen and too much bacteria. The State of Wisconsin has identified animal waste as one of the culprits responsible for the pollution in that river.
In addition to enforcing the Clean Water Act, the local group has asked MEA to assist them in testing another federal law known as the Resource Conservation and Recovery Act, which sets forth a complex scheme regulating the disposal of solid and hazardous waste. In simplest terms, the federal Resource Conservation and Recovery Act prohibits the disposal of solid waste in what are referred to as “open dumps.” An open dump is any area where a person disposes of solid waste, and that solid waste is leaking to groundwater or running off to a stream or nearby waterway.
Where a livestock factory spreads manure in excess of the crop needs for fertilizer, or on frozen or saturated ground where runoff is inevitable, the manure is no longer fertilizer and instead becomes “solid waste” under the federal Resource Conservation and Recovery Act. The field becomes an open dump when the manure seeps through the soil to groundwater, runs off to a stream or other waterway, or otherwise causes pollution. Similar to the federal Clean Water Act, any person affected by the pollution may file a lawsuit to enforce the Resource Conservation and Recovery Act.
Prior to filing a lawsuit under either the Clean Water Act or the Resource Conservation and Recovery Act, both laws require that the local group provide the polluter with notice of their intent to file a lawsuit within 60 days. That 60-day period is intended to allow the polluter a chance to correct the practices that lead to the pollution and ensure that the problem will not happen again.
On April 11, 2002, MEA filed a letter on behalf of the local chapter of the Sierra Club stating its intent to sue Maple Ridge Dairy to enforce the Clean Water Act and the Resource Conservation and Recovery Act. The local group will be allowed to proceed with filing their lawsuit in federal court once 60 days have expired since the date the letter was sent. The group’s goal is to get Maple Ridge Dairy to commit to taking permanent measures to ensure that it will no longer cause animal manure to run off into Wisconsin’s public waters.