Neighbor conflict highlights limits of pollution regulation

Updated 4:00 a.m.

Mequon — On Jan. 31, Ben Arnold watched a river of tainted, melting snow from a neighboring farm meander across his property and flow into one of his ponds.

The invading water — some of it dark as coffee — contained animal waste that the farmer had been spreading on a hillside.

“The manure runoff has started,” Arnold wrote in the first of a flurry of emails he sent to state, county and local officials asking for help. “This will really get bad over the next few days.”

Arnold’s problem underscores the often contentious and protracted process of managing and regulating manure in Wisconsin. With the onset of spring, authorities say, the potential for such troubles can grow.

A long gravel driveway off Pioneer Road leads to Arnold’s home. A trio of icy ponds and acres of lifeless grass provide an early glimpse of the splendor to come.

But days after the manure entered his land, dead fish began floating to the top of the pond. Crows swooped in to dine on the frozen flesh.

So far this year, he’s had manure drift onto his property twice. It’s happened in past years, in late winter and early spring, and so far his complaints to the Department of Natural Resources, Ozaukee County and city officials have not produced a resolution.

Manure issues in Wisconsin have increasingly focused on the environmental effects of large-scale farms. Referred to as concentrated animal feeding operations, or CAFOs, they often house thousands of cows. Farmers who own them must build facilities to store animal waste and adhere to planning documents spelling out how and where manure will be applied.

For many smaller farms, CAFO-type requirements aren’t mandatory, although conflicts involving smaller livestock operations also occur.

“Water quality issues don’t discriminate based on how many animals there are at an operation,” said Tressie Kamp, an attorney for Midwest Environmental Advocates, a public interest law firm active on CAFO issues.

How and when the DNR gets involved in manure runoff cases can vary and can depend on the scale of problem, threats to public waterways and the potential of manure infiltrating wells or groundwater, said Benjamin Benninghoff, a water basin supervisor with the agency.

Benninghoff and others from the agency have made inspections of Arnold’s property in recent weeks, taken water samples and will meet with the farmers — Michael and Brenda Kemp — on Tuesday.

If manure from the farm had tainted nearby Cedar Creek or the Milwaukee River, there would have likely been a quicker government response to contain the waste. The farmer probably would have been issued a citation or ordered to pay for the cleanup. It is illegal to spread manure that causes significant pollution of navigable waterways.

State regulations also allow authorities to take more decisive action in and near public waterways. But Arnold’s 20-acre property is almost a mile west of the Milwaukee River.

After an earlier incident, Arnold was informed by the DNR in 2010 that his ponds — one constructed with the aid of public funds — did not meet the standard for a navigable waterway. And because he lives more than 300 feet from a stream or river, the DNR lacked the authority to put restrictions on manure spreading at the neighboring farm.

“There was not a DNR citation that I could issue,” said Dan Nehls, a DNR conservation warden.

Last year, the DNR issued four citations to non-CAFO farms for animal waste violations — down from nine in 2014, records show.

The process has left Arnold frustrated, especially after he got back results of a well test from the state that showed that levels of total coliform in his well were bacterially unsafe. There was no evidence of E. coli, which is a marker for the presence of fecal matter, however.

If there was manure contamination in the well, the DNR would have had more authority to take action quickly, Benninghoff said.

“The process is ridiculous,” Arnold said. “These ponds are more important than that stupid Cedar Creek.”

Near his home, Cedar Creek and the Milwaukee River each are classified as impaired waterwaysbecause of excessive levels of phosphorus and polychlorinated biphenyls, a banned industrial pollutant.

Arnold, 65, is single and a retired shop teacher. He grew up on a farm in central Wisconsin and bought the property in 1978. He began restoring the land to native prairie about 13 years ago and estimates that he has spent $60,000 to $70,000 on it. Today, there are deer and coyotes, mink, turtles, frogs, double-crested cormorants, blue and green herons, white egrets, woodcock, belted kingfishers and at least four species of hawks that congregate on his property.

In a video produced for the Wisconsin Wetlands Association, Arnold trudged through acres of wildflowers and tall native grasses in high rubber boots.

“It’s the most rewarding thing I have done in my life,” he said. “I value it. I treasure it. It’s a work of art, as far as I am concerned.”

But his passion has ruffled feathers. After he cut invasive plants on a neighbor’s property for a few years — with permission — a different neighbor has now forbidden such activity, Arnold said.

He hasn’t spoken to the Kemps for years. Brenda Kemp denied that manure from the farm ever left the property, although DNR and Ozaukee County officials said they saw such evidence.

“I saw discolored water as a result of the manure,” said Andy Holschbach, director of the Ozaukee County Land and Water Management Department. “No question where it came from.”

Brenda Kemp said her family gets along with their neighbors, except Arnold, and she fired off a litany of complaints: angry verbal exchanges, a confrontation over construction of a fence and once Arnold lost control of a burn to control invasive species, causing the fire to spread to other properties.

“He doesn’t like farmers — period,” she said. “And he doesn’t like them living next door to him.”

The next step, according to state and county authorities, is to get the Kemps to adopt a nutrient management plan — a planning document that would detail manure-spreading practices to avoid runoff events and maximize manure’s value as fertilizer. In some instances, the planning can involve construction of facilities to contain manure.

Typically, however, state regulations can’t require farmers to do such work unless the state pays 70% of the cost and the farmer pays 30%.

Since 2010, money for planning statewide has tripled to $1.8 million this year, according to the Department of Agriculture, Trade and Consumer Protection.

State funding for construction-related costs has fallen from $6.4 million in 2010 to $3.99 million this year, DNR figures show.

A year ago, Holschbach met with the Kemps about such planning. By spring, they opted against it.

Brenda Kemp said the farm uses little fertilizer and no pesticides. Manure replenishes the soil, she said.

“I don’t want to take government money. Once they give you money, they own you. I don’t want to be owned by them,” she said. Later, she said that she and her husband have agreed to meet with authorities who want to inspect the property to evaluate the scope of the problem.

The hope is to work out a voluntary cost-sharing agreement. But Benninghoff said the DNR could order the Kemps to make the changes.

It’s all taken far too long, said Arnold, who feels he’s been victimized by his neighbor and the pace of the government response.