ST. PAUL — A three-judge panel heard oral arguments in a lawsuit against the Minnesota Pollution Control Agency on July 17, and when a verdict is delivered, it could spell the end of a planned dairy expansion in Winona County. 

The Minnesota Center on Environmental Advocacy and Land Stewardship Project filed an appeal against the MPCA's Jan. 4 decision to grant a permit to Daley Farms for its proposed expansion of the dairy and approve the findings of an environmental assessment worksheet. 

MCEA and LSP argued that the state should have required a more stringent environmental impact statement.

"If it's mandated we do an EIS, it'd kill the project," said Ben Daley, co-owner and operator at Daley Farm in Lewiston. 

Amelia Vohs, an attorney for the MCEA, said the big picture issue in the appeal is that the MPCA did not follow its own guidelines in determining an EIS was not needed.

"Minnesota law requires all permits to ensure all recipients can meet the requirements of Minnesota law," Vohs said. 

To that end, she added, there's no scientific way to prove the Daleys can avoid the kind of irreversible pollution the MCEA, LSP and hundreds of individuals cited as a concern during the EAW public comment period. 

Vohs said the MPCA essentially contradicted itself when it approved the permit and did not require an EIS but then asked for the state to conduct a general environmental impact statement study of nitrates in the karst region of southeastern Minnesota. 

While the Legislature did not approve funding for the that study, Vohs said the fact that the MPCA sees nitrates as a problem — and the Daleys' expansion would create millions of additional gallons of liquid manure, a source of nitrates — shows the agency recognized the danger of allowing the Daley Farm expansion project while it simultaneously approved that same expansion. 

"You can't prove there's not going to be pollution caused by manure from the site," Vohs said. 

Daley said the appeal by the MCEA and LSP is just one legal hurdle the family farm is facing in its efforts to get its project underway. 

After the MPCA gave its approval, the Winona County Board of Adjustments in February denied a request for a variance by the Daleys to exceed the county's 1,500 animal unit cap for feedlots. The Daleys have filed an appeal in district court, but that case is still in early stages; a case number has not been assigned and a date for a hearing has not been set. 

Daley said his attorneys are still gathering data from Winona County through a freedom of information request. 

Meanwhile, the Winona County Board of Commissioners has — and likely will again — discuss the merits of the county's animal unit cap in the face of the changing nature of dairy farming. 

From 2007 to 2017, the county lost nearly half its smaller dairy farms, those with herds of 199 or fewer cows — dropping from 212 to 118 — and 55 percent of the total number of cows on dairies of this size range, according to the U.S. Census of Agriculture. 

Instead, the dairy industry has shifted toward larger dairy operations. In Winona County, the largest dairies, those of 500 cows or more, increased from seven farms to 10 during that time, with the number of cows going from 5,590 to 7,312, an increase of 30.8 percent, the census reported.

"If you had an animal cap in the entire country, I could see that working," Daley said. "But they're trying to change the whole dairy industry in this one county."

The appeals case will consist of a 15 minute argument by attorneys for the appellant, otherwise known as the Relator (Minnesota Center for Environmental Advocacy and Land Stewardship Project) followed by a 15-minute argument by attorneys for the Respondent (Minnesota Pollution Control Agency and Daley Farm), followed by a final five-minute rebuttal by attorneys for the Relator.

Hearing oral arguments will be a three judge panel consisting Judge Renee L. Worke, Judge Lucinda E. Jesson and Judge Diane B. Bratvold.

Oral arguments will begin at 10:40 a.m. Wednesday at the Minnesota Court of Appeal, 25 Rev. Dr. Martin Luther King Jr. Boulevard., St Paul.