The town of Magnolia and a farming company are taking their development dispute to the Wisconsin Court of Appeals with both sides predicting dire consequences if they lose.
Agricultural development in the state will die if Larson Acres Inc., Evansville, loses the case, said Eric McLeod, an attorney in the Madison office of Michael Best & Friedrich LLP who’s representing Larson over a livestock-feeding building it built and began operating in Magnolia six years ago.
“Other states have made it much easier to build and operate these kinds of buildings,” he said. “If you’re looking at building a large livestock operation and there’s less regulation elsewhere, you’re going to see these people move.”
But if the state, not local governments, controls where the buildings are built and the level of pollution they create, the local environment will die, said the town’s attorney, Glenn Reynolds of Madison-based Reynolds & Associates.
Larson sought approval for the livestock building in 2002 and received a conditional-use permit from the town and approval from the Wisconsin Department of Agriculture, Trade and Consumer Protection’s Livestock Facility Review Board.
However, a local opposition group sued after the plant began operating, claiming the wrong town committee granted the permit and was operating outside the law.
As the case wound through the court system, pollution levels swelled in community wells and nearby Norwegian Creek, Reynolds said.
Local studies of pollution caused by manure runoff in the creek showed nitrate levels increased 100-fold after Larson’s building began operations, said Reynolds, citing public testimony from 2007. If that continues, he said, fish and aquatic life indigenous to the area will die.
But McLeod said the public testimony is from a one-sided public hearing, the details of which were never introduced in court.
“Larson is subject to comply with state law on pollution issues and is subject to nutrient-management plans,” he said. “All we’re doing is farming like almost everybody else does in this state.”
But state laws are unclear in the way they govern livestock building placement and livestock waste management, Reynolds said. The law gives the state livestock board power to approve or reject projects but also lets local governments challenge the rulings if state rules are not met by the agricultural developer.
That is at the heart of the town’s complaint, Reynolds said, but the state Department of Natural Resources has not replied to repeated requests for water-quality studies near Larson’s operations.
Todd Ambs, the DNR’s water division administrator, said he does not know what stage the department’s review of Larson’s project is in, but such reviews can take more than a year because the state reviews every livestock project.
“People don’t like the comparison, but reviewing these animal-feeding operations is like reviewing permits for a medium-sized city’s wastewater-treatment plant,” he said. “It takes a while.”
But if the DNR can’t help, Reynolds said, it makes it difficult for a town to rely on the state for protection.
And if the state wants the authority to approve livestock projects, it needs to make sure it can protect local interests, said Magnolia Supervisor Dave Olsen.
“It’s just another case of them wanting to make the rules,” he said, “but not wanting the responsibility of enforcing them.”
The Court of Appeals could take up to six months to make a decision in the case.
“It’s a political matter,” McLeod said. “If the appeal fails, the state’s siting law is rendered null and void.”