Daley Farms Dairy

Cattle feed at Daley Farm in Lewiston in this Oct. 28. 2018, Post Bulletin file photo.

ST. PAUL — The state of Minnesota found itself on the side of a family dairy from Lewiston during oral arguments Wednesday at the Minnesota Court of Appeals. 

The Minnesota Center on Environmental Advocacy and Land Stewardship Project filed an appeal against the Minnesota Pollution Control Agency's Jan. 4 decision to grant a permit to Daley Farm for a proposed expansion of the dairy and approval of the findings of an environmental assessment worksheet.

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

"This is not an attack on farmers," said MCEA and LSP attorney Amelia Vohs. "This is not an attack on feedlots. This case is against the MPCA and its decision."

Vohs, in her opening argument before the three-judge panel, said that in making its decision to accept the findings of the EAW and grant a feedlot expansion permit to the Daleys, the MPCA ignored two key factors. 

The first was the impact of greenhouse gas emissions if the expansion were approved. The other, she said, involved groundwater pollution. The farm is located in an area of karst geology, where the township has already recorded a large percentage of wells with nitrate levels above the state standard of 10 parts per million. 

Vohs said the MPCA seemed to contradict itself when granting the Daley Farm feedlot permit and, on the same day, requesting the state Environmental Quality Board conduct a general EIS to study nitrates in groundwater in the karst region of Southeast Minnesota. 

That study was not funded by the state Legislature during the 2019 session. 

Judge Diane B. Bratvold said she was concerned that the LSP and MCEA were asking the court to second-guess the MPCA's decision. 

"Where is the basis for your challenge in the rules and regulations?" Bratvold asked. 

When it comes to greenhouse gas emissions, Vohs said the project would be the equivalent of adding 21,000 cars to the road, and Daley Farm would become the 43rd-largest greenhouse gas emitter in the state. 

Matt Berger, an attorney for Daley Farm, said he disputed that assertion as being based on assumptions that do not apply to the specifics of Daley Farm. 

Arguing on behalf of the MPCA, Assistant Attorney General for Minnesota Nur Ibrahim said the karst region and its groundwater issues were definitely part of the MPCA's determination. 

"The MPCA looked at all sites where there would be application of manure," Ibrahim said. "They looked at the karst features on the land."

As for the relators' contention that the MPCA ignored greenhouse gas emissions, Ibrahim said the agency's environmental experts can decide which factors to include. And while greenhouse gases were not part of the consideration during the EAW process, a big part of that is there is no state framework for applying greenhouse gas emissions to feedlot permitting. 

Even the federal Environmental Protection Agency has refused to look at greenhouse gas emissions because there is no way, especially in a feedlot setting, to control them. 

Ibrahim said that while the EQB is looking at the issue of greenhouse gas emissions, it currently has no regulations in agriculture for mitigation, and taking the state's goals toward greenhouse gas emissions and scaling that onto Daley Farm's proposed project is an unfair burden on the family farm. 

The judges will publish their decision on the case within 90 days. 

Ben Daley has said that if an EIS is ordered by the court, it would likely end the proposed project. As it is, the Winona County Board of Adjustments in February declined the Daleys' request for a waiver on the county's 1,500 animal unit cap.

The Daleys have filed an appeal of that decision in the Third Judicial District Court in Winona, but that case has not received a hearing date as yet. 

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