In 2017, a Texas-based company was given the go-ahead by the Indiana Department of Environmental Management to build and operate a massive concentrated animal feeding operation (“CAFO”) in one of Indiana’s most sensitive environmental areas — the Kankakee River Basin, in the former Beaver Lake bed along Beaver Creek, and numerous other tributaries of the Kankakee River. HEC brought a legal challenge to that IDEM decision resulting in the CAFO developer withdrawing its plans. Unfortunately, IDEM approved their application a second time in early January. Now HEC is helping the community fight back. Here’s why:
The CAFO Seriously Threatens Environmentally Sensitive Areas
Beaver Lake was once Indiana’s largest freshwater lake before it was drained a century ago leaving behind a surficial aquifer (just below ground surface). Most, if not all homes in the area are on well water that draw from this surficial aquifer making drinking water in the area extremely vulnerable to contamination from wastes that come in contact with the land. Immediately adjacent to the CAFO site is the ecologically sensitive Kankakee Sands Bison Habitat. Also nearby is the Willow Slough Fish and Wildlife area, Lake Village Elementary School and North Newton High School.
Despite the historical, cultural and environmental significance of the area, IDEM is allowing the CAFO to confine 4,350 dairy cows in three “production” buildings. The CAFO will generate more than 50 million gallons of waste annually — including urine, feces and contaminated wastewater from milk production. Putting this into perspective, this CAFO will produce as much raw sewage as that of a city with 715,000 people — that’s more than 50 times the amount of raw sewage produced by the human population of Newton County (14,000 people) where this CAFO is to be built. The CAFO’s waste will be collected and stored in a massive, outdoor waste lagoon that is nearly 3 times the size of a football field. Once the lagoon is full, the waste will be spread, untreated on nearby fields within the aquifer boundary and many have sensitive wetlands and are immediately adjacent to tributaries of the Kankakee River.
The CAFO Poses a Major Threat to the Safety of Area Drinking Water
Animal waste contains high levels of phosphorus and nitrogen as well as pathogens like E. coli and parasites, which is why human (animal) waste is treated before it can be disposed of on land. When these pathogens contaminate drinking water they can cause gastrointestinal illnesses, kidney damage or failure, and in extreme cases, death. This is a real possibility in this instance because soil testing conducted at the proposed CAFO site demonstrate that groundwater is “at or near soil surface” in some locations and “at or above soil surface” in others. That means if the waste lagoon were to overflow, the liner to crack/leach, or a spill were to occur in transporting the waste from the buildings to the lagoon then groundwater will be contaminated threatening the drinking water wells of area residents. Also concerning, there are three wells at the CAFO site that are within feet of the production buildings that directly expose groundwater to contamination. And, allowing the CAFO’s waste to be spread on fields within the aquifer boundary significantly threatens the drinking/well water of area residents. Finally, the CAFO will be built within feet of nearby drainage ditches even though the CFO Rule requires a 300 foot setback. With flooding like the area experienced this year, contamination of these surface waters is a near certainty.
A Dangerous Threat to Air Quality
As livestock waste is collected in the manure lagoon it will decompose and release dangerous gases including hydrogen sulfide, ammonia, particulate matter, endotoxin, among others that are noxious and pose severe health risks. This is of particular concern given the close proximity of the CAFO to schools and outdoor recreation areas. Purdue University study of air emissions at a dairy CAFO in Indiana found ammonia emissions released at a rate of between 18 and 75 grams per day per cow. In other words, this diary CAFO with 4,350 cows will emit more than 600 pounds of ammonia into the air every day. These gases will be disbursed into the surrounding area in a number of ways: (1) the open air lagoons will allow perpetual off-gassing to occur; (2) when the collected waste slurry is spread on fields, emissions will be directly released; and (3) open-sided confinement buildings allow gases to escape. The resulting stench from these gasses can be unbearable, but even more concerning are the serious health effects they can create.
One of the most dangerous gasses produced, hydrogen sulfide, can be harmful even at low levels. It is a potent neurotoxin that can cause damage to the brain and nervous system. People exposed to concentrations of even 0.1-1 parts per million (ppm), display neurobehavioral dysfunction, including abnormal balance and delays in verbal recall. Its effects are irreversible and can also include skin rashes, seizures, comas, and even death. Ammonia is a noxious gas that also poses serious health risks. Ammonia has an acrid, repellant odor at levels above 0.7 ppm. It causes eye irritation beginning at 4 ppm and irritation of the nose and throat above 25 ppm. Ammonia can also trigger asthma attacks in some asthmatics, which is particularly concerning for children at the schools nearby.
What is HEC Doing?
HEC is working closely with concerned citizens to hold Natural Prairie, IDEM, local zoning officials, and the Army Corps of Engineers accountable. On that front, we have Petitioned the Newton County Board of Zoning Appeals to hold a public hearing as required by the county ordinance to determine whether the zoning approval issued for the CAFO should be revoked because of material misstatements that Natural Prairie made to the BZA to obtain the zoning approval. And, because the BZA refused to hold a hearing as required by county ordinance, we filed an Action for Mandate in the county trial court and won–the court ordered the BZA to hold a pubic hearing on our Petition, which will be held as soon as the COVID-19 crisis is over. IDEM also predictably issued a second permit for the CAFO (despite overwhelming community opposition and HEC’s technical comments submitted to IDEM detailing the regulatory deficiencies with the permit). Accordingly, we filed a second administrative appeal with the Office of Environmental Adjudication. We are also pursuing a federal Clean Water Act citizen suit against Natural Prairie for filling numerous jurisdictional ditches on its property and impacting farmed wetlands without obtaining required permits from the US Army Corps of Engineers.
UPDATE (as of 9/29/21): HEC Achieves Huge Legal Victory! Indiana Federal Court agrees with HEC that the US Army Corps of Engineers failed to do its job in assessing whether Natural Prairie impacted jurisdictional waters on its property. The US District Court for the Northern District of Indiana tossed out the jurisdictional determination made by the US Army Corps of Engineers concluding there are no jurisdictional waters on the land where Natural Prairie built its dairy CAFO. The court held the Army Corps’ decision was “arbitrary and capricious” because the agency failed follow its own technical guidance, which required the Corps to assess whether there were jurisdictional waters on Natural Prairie’s property before the company substantially altered the site’s hydrology.
Specifically, Natural Prairie filled numerous drainage ditches and installed an extensive tile drain system to lower the site’s high-water table without first contacting the Army Corps to see if a federal Clean Water Act permit was necessary. In fact, it was not until nearly two years later, after HEC and numerous residents had raised concerns, that Natural Prairie contacted the Army Corps. Then, without assessing the hydrological impact of Natural Prairie’s destructive ditch filing, grading and tiling, the agency summarily concluded that there are no regulated wetlands or surface waters on site, thereby legitimizing Natural Prairie’s activities and eliminating the need for it to obtain a federal permit.
Because the Army Corps failed to do its job and follow its own technical guidance, the court ordered the federal agency to go back to the drawing board and conduct a proper site investigation that assesses whether there were jurisdictional waters at the site before Natural Prairie altered it to erect its polluting CAFO. The court’s decision is a critical victory for protection of wetlands and serves as a warning to CAFO developers and the Army Corps in Indiana and nation-wide that citizens are watching, learning, and responding to the unjust and unlawful manipulation of our environment, and we will continue to stand up to protect our communities and ecosystems from irresponsible harm. Environmental agencies like the US Army Corps of Engineers must be held accountable when they fail to do the job, and this court decision does precisely that.
To learn more about this case and how you can help, please contact our Senior Staff Attorney, Kim Ferraro at email@example.com.
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